Dismissing an employee due to loss of trust is a tool to protect the company's material assets and a warning against causing damage. What fault of the employee can lead you to his dismissal on this basis?

Dismissal for distrust is regulated by paragraph 7 of Art. 81 of the Labor Code of the Russian Federation. Often this happens in relation to people who perform work related to the acceptance, vacation, storage of any material values ​​\u200b\u200band finances. What exactly is considered a loss of trust is not spelled out in the Labor Code of the Russian Federation, since it is formulated by the head of the company himself. This boss, in his own way, expresses distrust of employees, based on the situation.

The trust of the head of the company is spelled out in the working documentation of the financially responsible person. A liability agreement is signed with the employee, but this does not serve as a basis for dismissing for lack of confidence. If theft, embezzlement, bribery is proven, he also falls under the article of no confidence. But this can happen only when the employee is really financially obliged.

Dismissal in distrust can also occur due to a misdemeanor committed by a person in another place of work. Then the termination of the employment contract will be based on a copy of the court decision, which will establish the guilt of the subordinate.

Dismissal due to loss of trust is considered legal only if the head of the company correctly draws up the recovery procedure (based on the results of an inventory of material assets at the enterprise, court proceedings, with the acceptance of a written explanation from the employee within the period strictly prescribed by law). In the event that the director does not have this evidence, then he does not have the right to dismiss the employee.

The dismissal of an employee under this article of the Labor Code of the Russian Federation is the right of the boss, but it is not his duty. He has the right to resort to other types of punishment or not to punish at all.

You can lose trust for the following reasons:

• theft, loss, damage to the material assets of the enterprise;
• untimely cash transactions;
• trade in any goods at a deliberately high / low cost;
• illegally written off material values;
• scam;
• incorrectly executed acts of acceptance / issuance.

The loss of trust will also be caused by such misconduct by the employee, with which material damage will be associated, for example, if he was caught stealing valuables for which he is responsible. However, this case must be in writing.

Dismissal procedure

Consider the procedure for dismissal in connection with the loss of confidence in the workplace:

1. Fixing in writing the illegal actions of the employee.

There is no specially approved form for such a document. Usually, an employee who discovers an oversight writes a report addressed to the director of the organization, in which he indicates:

1. FULL NAME. the one who discovered.
2. The conditions under which the infringing act was committed or its results were disclosed.
3. Exact time and date of detection.

If employees learned about the illegal actions of an employee from law enforcement agencies or someone else, then a report is not issued. If the lost value was revealed during the verification period, then in this case a special act is drawn up.

2. Official investigation.

Based on this evidence, the director of the company begins an internal investigation, during which the culprit is determined. It is done like this:

1. A commission is created, consisting of at least 3 employees who are not interested in the consequences of the investigation.
2. An order is drawn up on the creation of a commission, in which the full name is entered. participants, their position, date of creation of the commission, purpose, duration, powers of the participants.

All members of the commission must put their signatures in the order.

Also, such a commission is collected if the employee's act did not cause harm, but could potentially lead to this.

The tasks of this commission include:

1. Determine the circumstances of the loss - time, place, method.
2. Describe how the damage was done.
3. Calculate the total damage.
4. Determine the culprits.
5. Gather facts about the case.
6. Determine the degree of guilt, the type of subsequent punishment.
7. Keep all materials on this case.

All actions of the members of the commission, as well as information that was received during the investigation period, are recorded in special documents: acts, certificates, notes.

After the work of the created commission is completed, an act is drawn up in which all its participants put their signatures. The offending employee must read and sign this document without fail.

After conducting such an investigation within the organization, you have the right to issue an employee dismissal due to loss of trust.

3. An explanatory note from a delinquent employee.

Before issuing an order to punish an employee, it is necessary that he writes by hand an explanatory note about what happened. Does he refuse to write? Then he is given a notice that he is obliged to do so. If the employee does not sign this notice, then an act is drawn up. After two days from the moment of warning, the employee did not provide an explanation? Then, in accordance with Art. 193 of the Labor Code of the Russian Federation, an appropriate document is drawn up. If there is a notice and such a document, you can begin the dismissal procedure.

4. The order of execution of the main documents.

An order is issued on the disciplinary punishment of an employee, where his guilt is prescribed. After that, the director issues an order to terminate the contract of employment. It includes the grounds for termination - loss of confidence in the employee.

The employee reads the order and signs it. Refuses to do so - an appropriate entry is made.

If all these documents are in the hands of the employer, then the employee does not make sense to sue the company.

5. Record in the labor and in the card of the employee of the enterprise.

Record that the employee was dismissed under Art. 81, part 1, paragraph 7 of the Labor Code of the Russian Federation fits into the labor and personal card of the employee. Labor is issued on the day of dismissal. The employee signs in a personal card, as well as in the book of accounting for the movement of work books.

6. Payments to the employee upon dismissal.

When calculating an employee, he is paid a salary for the period worked, compensation for unused vacation. The money is paid by the organization on the day of dismissal. The company can force the employee to give money for the loss caused to him only by a court decision (Article 137, Article 248 of the Labor Code of the Russian Federation).

So, only employees who work with money and are financially responsible can be fired under the article “Loss of confidence”. If the fault is related to work, then dismissal under the article will also carry a disciplinary sanction, which is why it is necessary to meet the deadlines. Non-work related activities can also cause a loss of confidence if a person is caught in a crime and convicted under the law.

Dismissal due to loss of trust

Termination of an employment contract at the initiative of the employer is enshrined in Article 81 of the Labor Code of the Russian Federation. In addition to the direct guilty actions of the employee, the reason for such a dismissal may be a loss of trust. This is a fairly rare reason for parting with objectionable employees, and for its implementation it is necessary to comply with a number of formalities. So, how does a dismissal occur due to loss of trust?

Candidates for termination of the employment contract

Management can express distrust only to responsible employees. That is, those who occupy leadership positions or directly deal with the maintenance of commodity or monetary values. For example, you can no longer believe in the honesty of an accountant or a salesman, but you can’t part with a locksmith or plumber for this reason. And there are no subjective moments in this - everything is clearly spelled out in paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation. However, such employees may also be protected from dismissal under this article. For example, it is impossible in this way to terminate an employment relationship with a pregnant woman (Article 261 of the Labor Code of the Russian Federation) or a minor worker (Article 269 of the Labor Code of the Russian Federation). In addition, employees who are on vacation or on sick leave also have immunity, but only until they end.

Evidence and guilt

Management can dismiss for loss of trust only if it has supporting documents that prove that this particular person served material values. For example, such a document may be an employment contract and an agreement on liability (Article 244 of the Labor Code of the Russian Federation).

So, the employer has every right to start the dismissal procedure if the person falls under the desired category, and at the same time:

• accepting or soliciting a bribe;
• receives "kickbacks";
• performs any actions that lead to theft or loss of monetary and material values, or the threat of such events;
• committed a criminal offense or illegal actions, even not related to his official duties (paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2.

Consider how to arrange it without violating the law.

Dismissal due to loss of confidence: procedure

Article 192 of the Labor Code of the Russian Federation provides for a number of disciplinary sanctions that the employer has the right to apply to employees if they violate the terms of an employment contract, do not comply with discipline, or ignore their duties. Dismissal due to loss of confidence is one such disciplinary measure. As stated in Art. 193 of the Labor Code of the Russian Federation, extreme measures cannot be applied immediately: the accused employee must have the opportunity to justify himself, and the employer must prove the existence of guilt.

Therefore, it is necessary to strictly observe the following algorithm of actions:

1. Upon receipt of information about the guilty actions, for example, in the form of a memo, the head of the organization creates a special commission to conduct an internal investigation.
2. Members of this commission study all the circumstances, conduct an inventory of money, goods or documents entrusted to the employee. In the case of an accountant, an audit may be required.
3. Further, the employee whose activities are being investigated must provide the commission with their written explanations. He has two working days to do this from the moment he receives a written request from management. The employee may refuse explanations, in which case his refusal must be formalized by an act. At the same time, refusal to give explanations does not prevent dismissal.
4. After the completion of the investigation, its results must be formalized in an act or conclusion. In this document, the members of the commission must bring to the management the results of the proceedings, as well as their conclusions about the causes of what happened and how to punish the perpetrator (provided that his guilt is proven). The act must be signed by the chairman and members of the commission.
5. The head of the organization agrees (or disagrees) with the conclusions and proposals of the commission (suppose he agrees) and issues an order for dismissal due to loss of confidence. An appropriate entry is made in the employee's work book. It is necessary to familiarize with the order under the signature within 3 days. In case of refusal, it is necessary to draw up an act about this.
6. The calculation and work book must be handed over on the day of dismissal.

Please note that if we are not talking about a violation at work, then this algorithm can not be applied. If a responsible employee was, for example, convicted under a criminal article or even simply prosecuted, the management has the right to dismiss him only on this basis, without asking for explanations and without creating a commission to investigate (see paragraph 2, clause 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

statute of limitations

There are certain statutes of limitations for disciplinary offenses that may give rise to these extreme measures:

• 1 month from the date of detection of misconduct;
• 6 months from the date of the misdemeanor, not counting the time of criminal proceedings;
• in case of audit of financial and economic activities 2 years from the date of commission;
• 1 year from the moment when the employer became aware of the commission of the act outside the place of work.

Time spent on sickness or vacation is not included in this period. Any person has the right to challenge his dismissal through the courts.

How to dismiss under the article "Loss of confidence"?

Loss of trust can be one of the reasons for an employee to leave. This basis is approved by law and has a number of features. In order for the procedure to go smoothly, it is important to properly organize and conduct it. This will save you from conflict proceedings and the need to prove the legality of actions in court.

What is loss of trust?

Any employer is interested in cooperation with reliable employees. Unfortunately, situations arise when subordinates give reason to doubt their decency. One of the ways to influence and regulate labor relations with financially responsible persons is the possibility of dismissal under the article “Loss of confidence”.

There is no list of actions and events that can lead to dismissal with this wording in legal acts. The head of the organization has the right to independently evaluate the actions of a subordinate, analyze the incident that has occurred, and decide on the inappropriateness of continuing cooperation with the delinquent employee. The legality of dismissal requires the fulfillment of 2 conditions:

1. The activity of the guilty employee is connected with money, material values. To confirm this fact, a concluded employment contract or an agreement on the material responsibility of the employee is used. It is concluded upon appointment. The document prescribes the consequences, degree and limits of responsibility.
2. The actions (or inaction) of the subordinate that caused the loss of confidence in the employer must be recorded, confirmed by facts and written conclusions. There are times when an employer, relying solely on personal suspicions and assumptions, tries to fire an employee. This is a violation, since human emotions are not sufficient grounds for terminating a contractual relationship. In situations where guilt is not established and not documented, dismissal due to loss of confidence is impossible, even if there is damage or lack of valuables.

If the specified conditions are not met, the employee of the enterprise has the right to apply to the court. He has a chance of winning the case. In such cases, the employer is obliged to reinstate the employee in the position and pay the due compensation.

The legislative framework

Dismissal due to loss of confidence is initiated by the employer. The norm is rarely used, but the possibility of termination of labor relations with this wording is approved by law and enshrined in Article 81 of the Labor Code (clause 7, part 1)

A complete list of positions with which labor relations are formalized by a liability agreement can be found in the Decree of the Ministry of Labor No. 85 (dated 12/31/2002).

Grounds for dismissal

Article 81 of the Labor Code protects, first of all, the interests of employers. A normative act is applied in order to preserve the property of the enterprise and prevent events related to causing damage by a subordinate. But it is not easy to remove an employee from work, since there must be good reasons for terminating cooperation. Let's single out The most common grounds for termination of an employment relationship due to loss of trust:

• Corrupt practices.
• Use of official position for personal gain.
• Theft, deliberate destruction of the organization's property, unlawful write-off of valuables.
• Misrepresentation or concealment of information about the receipt of income.
• Assignment of the quantity of goods that are not available.
• Inaction resulting in losses and shortages.
• Write-off of products that, due to their quality characteristics, are not subject to this procedure.
• Aiding crime.
• Possible damage to the material values ​​​​of the company.

The reason for the loss of trust is both the intentional actions of the employee and the proven facts of negligence and negligence.

Dismissal of a civil servant

For civil servants, there are special grounds for termination of employment. When committing disciplinary offenses, official penalties are not applied to such persons, but according to Article 59.2 of the Federal Law-79 “On the State Civil Service”, there are grounds that are considered sufficient for dismissal.

Distrust of a civil servant may arise due to the disclosure of confidential secrets, ignoring the performance of duties, illegal business activities, opening accounts in foreign banks, failure to provide data on personal income, etc. If, during the verification, the facts of committing an offense discrediting representatives of the military, law enforcement agencies and public service are proven, the contractual relationship with the perpetrator is terminated.

Who can't be fired

Dismissal under the article "Loss of confidence" is unacceptable in relation to pregnant women and underage workers. You can terminate an employment relationship only with an employee who is at the workplace. Those who are absent for a valid reason (vacation, business trip, sick leave) cannot be dismissed. In addition, the law prohibits the application of Article 81 of the Labor Code of the Russian Federation to subordinates who do not interact with the material assets of the enterprise. This includes merchandisers, accountants, controllers, employees who are part of a group of persons who have committed a disciplinary offense, other employees not related to the maintenance of material assets.

Dismissal procedure

The regulations for dismissal due to loss of confidence are prescribed in the Labor Code of the Russian Federation and require strict adherence. This guarantees the legitimacy of the legal procedure. Identified violations may lead to litigation. To avoid unpleasant consequences, the employer needs to competently and consistently organize the process of terminating the contractual relationship.

Documenting the fact of a misdemeanor

If a disciplinary offense is discovered that may cause a loss of trust, the actions of the guilty employee must be recorded in writing. There is no standard format, most often the document is drawn up in the form of a memorandum. An employee who witnessed a guilty act indicates the date and time of the misconduct, leaves his data and describes in detail the circumstances of the incident. If a shortage of money or material values ​​is found, a separate act is drawn up.

An official investigation

An official investigation is organized on the basis of the completed documents. This is necessary to confirm the fact of violation and determine the degree of guilt of the employee. A committee is set up to carry out investigations. There must be at least 3 disinterested employees in the composition.

The task of the commission is to study the circumstances, causes and conditions of the incident, analyze the testimony of witnesses and assess the amount of damage. This is done in order to collect evidence base, which will serve as confirmation or refutation of the guilt of a person. An internal investigation is carried out even in cases where no material damage was caused, but the actions or inaction of the employee could lead to such consequences.

Facts found must be documented. In the act with the results of the check, a separate paragraph formulates the conclusion that the actions of the employee caused the loss of the employer's confidence. The document must be read and signed by the guilty employee. If he does not want to sign, the fact of refusal is recorded in a special act.

Written explanation of the perpetrator

Before applying a penalty to an unscrupulous employee, an explanation must be received from him about the reason for the behavior (Article 193 of the Labor Code of the Russian Federation). This is given 2 days. If the document is not provided, another act of refusal is drawn up.

Termination of an employment contract according to general rules

The general rules imply a standard scheme used for dismissal under the Labor Code of the Russian Federation:

• Issuing a notice of dismissal, which is issued on the basis of Article 84.1 of the Labor Code. The employee must familiarize himself with the content and sign the order within 3 days after registration. The fact of refusal to leave a signature is recorded in a special act.
• Entry in the workbook with indication of information on employment, date and number of the order of dismissal. The reason for the termination of the employment relationship is indicated with reference to paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation.
• Accounting with an employee. An employee who leaves the organization receives financial benefits guaranteed by law upon dismissal (salary, unpaid bonuses, compensation for unused vacation, etc.). A court order is required to recover damages.

The employer can file a lawsuit within a year from the date of discovery of the damage. The dismissal does not prevent litigation, but the manager is not entitled to calculate the amount of damage from the salary.

Terms of termination of the employment contract

You can dismiss an employee under the article "Loss of trust" within 30 days from the date of detection of misconduct. This does not include employee leave and a period of temporary incapacity for work. A guilty act has a statute of limitations. He leaves 6 months. After that, the application of a disciplinary sanction is considered illegal. If violations are identified during an audit or revision, the results of the audit activities are relevant for 2 years.

How to contest a dismissal

Employees dismissed due to loss of confidence face a host of unpleasant consequences: seniority is interrupted, entry in the work book creates a problem in further employment, civil servants are deprived of housing and social benefits, etc. If the accusations and claims of the management are justified, everything possible must be done to prevent conflict and agree on the termination of the employment relationship “of one's own free will”. Another thing is when employers, free to choose the criteria that determine the loss of trust, make unfounded accusations and violate the rights of a subordinate. In such cases, the decision of the management can be challenged through the courts.

The illegality of the dismissal will have to be confirmed. Most often, violations by employers are associated with non-compliance with the established procedure for dismissal, when, for example, there is no evidence of the employee’s guilt, a written explanation has not been received, or the deadlines for dismissal have not been observed. There can be many such moments, but it is not easy to identify and understand the violations committed. Lawyers with sufficient experience and knowledge in solving problematic situations related to labor relations help to find a way out. When turning to professionals, the employee has the opportunity to prove his own innocence, to be reinstated at work and receive compensation for forced downtime.

Valery Isaev graduated from the Moscow State Law Institute. Over the years of work in the legal field, he has handled many successful civil and criminal cases in courts of various jurisdictions. Extensive experience in legal assistance to citizens in various fields.

An employer can issue a dismissal due to loss of confidence only:

• in relation to workers whose labor is connected with money or the maintenance of commodity values;
• in the event that such an employee commits actions that reasonably allow him to lose confidence in him (theft, bribe, other cases of selfish interest, even if these cases are not related to the main work).

Dismissal due to loss of trust

To avoid negative court decisions, dismissal due to loss of trust - we will give a step-by-step procedure. In the event of a trial, the court will without fail check the correctness of the application of a disciplinary sanction.

Step 1. Fixing the offense

It is issued in the form of a memorandum or memo addressed to the general director of the organization in free form. This document indicates the fact of the possible (because it has yet to be proven) the commission of an unlawful act by a specific person or, in general, describes the fact without specifying specific persons. The document must have the following information:

• Name;
• date and number;
• FULL NAME. and position, to whom they write and who addresses;
• signature.

In addition to the above, the document should clearly, understandably and unambiguously set out specific facts (not guesswork).

Step 2. Proceedings

It is issued by order for the main activity.

Purpose of the order:

• appoint a commission to investigate a specific fact;
• designate the time frame for the investigation;
• determine the amount of damage;
• identify persons involved in the commission of the offense;
• identify and describe the causes and conditions that contributed to this violation, etc.

In the course of an internal investigation, written explanations must be obtained from the employee, whose activities are considered to be an offense, or a refusal to provide them must be received (without this stage, the dismissal will be considered unlawful).

The employee has 2 working days to provide an explanation.

The absence of an explanatory note shall be recorded by the employer in writing.

The absence of explanations of the employee does not prevent the imposition of a disciplinary sanction on him.

Step 3. Presentation of results

The results are drawn up in the form of a multi-page document, which may be called "Conclusion on the results ..." or "Act" and even have references to the sheets of the case that was formed as a result of the investigation.

The completed results of the proceedings are sent to the CEO for approval. If the commission considers that the guilt in the actions of the employee has been proven, it writes (in a recommendation form) that the person should be fired for loss of confidence.

The CEO, in turn, may or may not agree with the committee's opinion.

If the opinion of the working group suits him, he approves the conclusions and proposals of the commission by writing a resolution or his signature in a specially designated place.

If the opinion of the group does not suit him, he has the right to make his own decision (not in terms of argumentation, but in terms of consequences for the perpetrator) based on actual expediency - to replace dismissal due to loss of trust with a reprimand, for example.

Step 4. Termination of the employment contract

Dismissal is issued by order in the standard unified form T-8.

When drawing up such an administrative document, it is necessary to take into account a number of factors.

The administrative document must be issued no later than:

• 1 month after the discovery of the offense. This period does not include periods related to:
  • with an illness of an employee;
  • being on vacation (according to the decision of the Supreme Court of the Russian Federation No. 2 of any kind);
  • the absence of an employee for other reasons, including the use of rest days by him;
• 6 months after the day the misdemeanor was committed (the period of criminal proceedings is not subject to inclusion in this period).

Dismissal due to loss of confidence (clause 7, part 1, article 81 of the Labor Code of the Russian Federation) on the fact of guilty actions performed by the employee outside the place of employment or at the place of work, but not in connection with the performance of the labor function, possibly no later than 1 year from the date when the employer was notified of the violation.

When formulating the grounds for terminating the employment agreement, the employer must provide a wording on the loss of confidence under paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

Citing in the administrative document the grounds that serve as confirmation of the fact of the violation, it is necessary to make a reference to the details of the relevant papers.

Arbitrage practice

In cases of dismissal due to loss of confidence, judicial practice is quite diverse. For example, there is a decision of the Arkhangelsk Regional Court dated May 16, 2002 in case No. 33-1411, according to which dismissal for the specified circumstance for violation of cash discipline was recognized as justified (shortage).

Violation of the procedure for the issuance of material assets by the responsible person was also recognized by the Ryazan Court of November 29, 2006 in case No. 33-1699 as sufficient grounds for dismissal.

Common to all court decisions on this issue are:

• guilty actions of the responsible person;
• compliance with the procedure for bringing to disciplinary liability in the form of dismissal.

The absence of at least one of these provisions will give grounds for the court to decide that the dismissal for lack of confidence in the employee was unreasonable.

Register of persons dismissed due to loss of confidence

Since 01/01/2018, a register of persons dismissed due to loss of confidence has been maintained in Russia. This innovation was approved by Federal Law No. 132 of July 1, 2017. According to this norm, Federal Law No. 273 of December 25, 2008 was supplemented with a new article number 15. The article states that information about persons who committed corruption offenses, as a result of which they were dismissed due to loss of confidence, will be entered in the register.

The provisions of the law apply if:

• the employee has not provided for and has not taken measures aimed at preventing or resolving a conflict of interest to which he is a party (this setting is applicable if the situation is reliably qualified as a conflict of interest);
• the employee provided incorrect information about income or property (both his own and spouses, children).

Employees with whom the employment agreement is terminated due to loss of trust are established by 273-FZ. Moreover, employment relations may be terminated with employees holding certain positions if they (their spouses, children):

• own accounts in banking organizations outside the Russian Federation;
• keep cash in banking organizations outside the Russian Federation;
• have or use foreign financial resources.

The data is publicly available on the Internet. They are included in a special register posted on the civil service portal in the relevant section.

The information is relevant primarily for employees of government bodies - state and municipal, customs officers, military, prosecutors, etc.

Information about offenders will be kept in the registry for five years. However, the law stipulates the cases in which such information may be excluded from the register:

• cancellation of the act, which is the basis for including information about the person dismissed due to loss of confidence, in the register;
• the entry into force of the court decision on the annulment of the act;
• expiration of the five-year period for storing information about the offender;
• death of the offender.

What to write in a work book

An entry is made in the main document on the length of service of the employee with a reference to the corresponding article of the Labor Code of the Russian Federation, the algorithm for bringing to disciplinary responsibility and imposing a penalty is not necessary.

Employer's responsibility

If an employment agreement has been terminated due to loss of trust with an employee who is not related to monetary and material values, the latter has the right to file a civil claim to recognize the dismissal due to loss of trust as illegal. In this case, the court may take the side of the employee and demand that measures be taken to restore him.

Moreover, the employer, represented by the head of the company, will have to (Article 394 of the Labor Code of the Russian Federation):

• pay the employee for the period of forced absenteeism based on average earnings;
• compensate for moral damage.

If an employee contacts the labor inspectorate, the employer may face a fine under part 1 in the amount of:

• 30,000-50,000 rubles - for a legal entity;
• 1000-5000 rubles - for individual entrepreneurs and officials.

(click to open)

The employer's trust is a necessary condition for labor relations if the employee's job duties involve working with material values, money or especially important documents. When it is lost, the organization has to part with the employee.

However, dismissal due to loss of confidence is possible only if there are good reasons for this. Let's find out what the Labor Code means by them, and how companies can part with the guilty employee, observing all the norms of the law. How is the dismissal for loss of confidence - article of the Labor Code of the Russian Federation, we will consider in the current article.

The legislative framework

HR specialists who have encountered the dismissal procedure at the initiative of the employer know that in this case it is necessary to scrupulously adhere to legislative norms and record all their actions in writing.

If any employee is suspected of abuse of entrusted valuables, dismissal under the article "Loss of confidence" may be initiated. Then you need to act according to the following algorithm:

1. The employee who discovered the violation draws up a memorandum addressed to the head, which describes the circumstances of the case and indicates what values ​​were allegedly lost.
2. To determine the amount of damage caused, a special commission consisting of at least three people is established. The fact of creating a commission is documented by a production order.
3. The commission is conducting an internal investigation. If necessary, the head of the company can apply to law enforcement agencies to establish all the circumstances of the case.
4. Based on the results of the check, an act is drawn up, where the nature of the violation, a list of the perpetrators, and the amount of damage caused are recorded.
5. The employee is introduced to the act: the text is read out in the presence of two independent witnesses. Then the guilty person is asked to sign the document. If he refuses, an appropriate entry is made about this.
6. In order to impose a penalty, an explanatory note is required from the employee, in which he must state the reasons for the misconduct (Article 193 of the Labor Code of the Russian Federation). The request for clarification shall be made in writing. In case of failure to provide explanations within two days, this fact is also recorded in the act.

If you have the documents listed above (even without an explanatory note), dismissal for loss of trust is quite legitimate. If the employer makes an appropriate decision, the contract with the perpetrator is terminated in the general manner:

• a dismissal order is drawn up;
• preparing a note-calculation;
• the issue with the procedure for compensation for damage will be resolved;
• relevant entries are made in the work book and personal card.

An employer who dismisses an employee under Article 81 of the Labor Code of the Russian Federation must scrupulously comply with all legislative requirements on this issue in order not to give the offended an extra reason to go to court and demand reinstatement.

Features of fixing a violation

Since collecting an evidence base about the guilt of an employee is a complex procedure, you should thoroughly study the procedure for the actions of the company's personnel in such a situation and figure out how to correctly draw up the necessary documents. Consider the rules for compiling each of them.

Service note on the identified misconduct

The document does not have a standard form, but when compiling it, the following points should be taken into account:

1. In the upper left corner is the name of the department whose employee became aware of the violation.
2. At the top right, the position of the addressee and his full name are written.
3. The name is put down in the center - a memorandum.
4. Further, from the "red" line, the date of the document is indicated in Arabic numerals. It is not necessary to write the month in cursive.
5. The substantive part details the information about the identified misconduct.
6. At the conclusion, the compiler's signature and its transcript are put (all in one line).

A correctly executed document will form the basis of the evidence base for terminating the contract with the offending employee. Without this paper, dismissal due to loss of confidence is impossible.

Explanatory worker

Facts of violation recorded in writing require clarification. For this purpose, an explanatory note is required from the employee, for which he is given a corresponding request. The employee who received such a paper is obliged to satisfactorily explain his actions within two days.

The explanation is written in the name of the head of the organization in free form, the document describes the circumstances that led to the loss or damage to property. If the employee has supporting documents, he must attach them to the note. A violation caused by a good reason is not such, therefore, an employee cannot be held liable for it.

It should be noted that the management of the company has no right to impose its vision of events on an employee. Otherwise, management will be accused of distorting the facts and putting pressure on a subordinate.

The act of refusing to give explanations

If the employee did not write an explanatory note, the absence of this document is also recorded. It is impossible to ignore the compilation of this paper, since it proves:

1. firstly, the desire of the employer to understand what happened and give the employee the opportunity to prove his innocence,
2. secondly, it fixes that the employee did not take advantage of the given chance. This characterizes it negatively and reduces the risk of claims.

In situations where malicious intent can be traced in the actions of personnel, it is especially important to observe all procedural points. Employees dismissed in a rush, without complying with regulatory requirements, can later challenge the actions of the employer in the labor inspectorate or in court. And the supervisory authorities, having not received supporting documents, may well recognize the dismissal for the employer's lack of confidence in the employee as illegal and reinstate him in his position.

All documents relating to an internal investigation must be registered with the company's office. Experienced personnel officers are advised to put on them the date, number and time of receipt.

The role of the commission in detecting violations

To find out all aspects of the illegal act, a special commission of at least three people is created. It consists of employees who do not have a personal interest in the case, so that they are not accused of bias. That is why it is impossible to introduce relatives or other interdependent persons into the commission. It is clear that it is difficult to find unbiased employees in a small company, but every effort must be made to organize a truly objective trial.

The tasks of the commission include:

• fixing the time and place of the violation, studying the accompanying circumstances;
• determination of the value of lost valuables;
• clarification of the circle of persons who were related to the commission of the offense;
• inspection of the property that was damaged (if necessary);
• collection and documentation of evidence;
• drawing up recommendations regarding the punishment for the perpetrators (reprimand, warning of incomplete official compliance, dismissal in distrust).

The commission can also be created in the case when no damage has been identified, but the actions of the personnel were clearly aimed at inflicting it.

Order on the appointment of a commission

The powers of the commission will be recorded in the relevant order. It should contain the following data:

• date of creation of the commission
• the goals it pursues;
• Full name and position of participants;
• the timing of the proceedings;
• the form of presentation of its results;
• signatures of members of the commission on familiarization with the contents of the document.

The order is signed by the head of the company and certified with a seal.

An official investigation

Members of the commission are entitled to demand from the guilty person an explanation of their actions. They can also ask for clarifications from other persons related to the case. In this case, the proceedings must be in good faith and impartial. The commission has the right to choose the course of action on its own, but all measures should be aimed at establishing the circumstances of the case. It is unacceptable to exert psychological pressure on an employee, to humiliate his dignity and, before the end of the proceedings, to recognize him guilty of something.

Fact

If during the work of the commission it turns out that the amount of damage is large, and the actions of the person were clearly intentional, it is reasonable to transfer the consideration of the case to law enforcement agencies. Similar actions are taken in the case when it is impossible to independently establish the degree of guilt of employees.

The information obtained by the commission is drawn up in the form of an act, certificate or memorandum. The person in respect of whom the proceedings were conducted is acquainted with the conclusions of the commission against receipt. If this is not possible, this fact is documented.

All papers collected during the proceedings are transferred to the head of the company for examination and determination of a disciplinary sanction. If, following the results of the trial, the employee’s guilt is proved, dismissal for the loss of confidence in him becomes a reality. Then the corresponding procedure is started.

The procedure for the employer

Termination of the employment contract under paragraph 7 of Part 1 of Art. 81 of the Labor Code of the Russian Federation should occur according to the algorithm below.

Notice of dismissal

The employee is sent a notice of dismissal, although after an internal investigation, it is unlikely to be unexpected for the addressee. It is desirable to obtain the signature of the employee, indicating that he is familiar with the document. If the employee does not consider himself guilty, he may well refuse to sign the notice, or he is simply absent from the workplace. Then the document is sent by registered mail with notification.

It is recommended to dismiss an employee without a two-week working off, since the fact of his admission to the performance of official duties refutes the conclusions of the commission. Then it turns out that the employee is innocent, dismissal by mistrust is unreasonable, therefore, the corresponding article of the Labor Code of the Russian Federation cannot be applied.

Dismissal order

The document is drawn up in the T-8 form, it makes a reference to the relevant article of the Labor Code of the Russian Federation. The order signed by the manager is transferred to the employee for review. If within three working days the corresponding signature is not received, an act of refusal to familiarize yourself with the contents of the document is drawn up. Members of the previously created commission can sign it.

Settlement with an employee

Despite the dismissal under a “bad” article, the employer is obliged to pay the employee all the amounts due, including wages for hours worked and compensation for unused vacation. There is no need to pay bonuses, since the employee was convicted of dishonest performance of duties.

If there is a dismissal due to loss of confidence, the employer independently determines the procedure for compensation for damages. If the losses are small, they can be repaid from the earnings of the perpetrator (no more than 20% of the amount of payments). The rest of the dismissed person can compensate voluntarily by depositing money into the company's cash desk. If he refuses to do so, the employer has the right to go to court with a claim for damages. Since the evidence base of the guilt of the subordinate has been collected, the judge usually takes the side of the company, obliging the employee to pay damages and legal costs in the case.

All money must be paid on the last working day, even if the damage caused by the dismissed person has not been repaid. Delay in payments is fraught with sanctions for the employer.

Package of documents

No matter how the company parted with the employee, it is impossible to violate the requirements of the law. Therefore, on the day of dismissal, he must receive:

• certificate 2-NDFL;
• certificates of personalized accounting and the amount of paid insurance premiums;
• copies of orders for hiring and dismissal, acts drawn up in relation to the employee (upon a written application);
• certificate of average monthly salary for the last three months;
• work book.

The employer has three days to complete and issue documents, and copies must be certified by the signature of the head and the seal of the company in the generally established manner.

Entry in the workbook

The basis for making an entry, as in all other cases, is an order. In the work book, the basis for terminating the contract is fixed - dismissal for loss of confidence, the corresponding article of the Labor Code of the Russian Federation is indicated, a reference is made to paragraph 7 of part 1.

Filling order:

• column one - the serial number of the record;
• column two - the date of termination of the contract;
• column three - the reason for dismissal, exactly repeating the wording of the order4
• column four - details of the order.

The entry is certified by the signature of the manager or authorized person, then the work book is stamped (if any) and the signature of the employee. It will be problematic to get the latter if the dismissed person did not appear for the document.

term of dismissal

It is necessary to terminate the employment contract with the guilty employee:

• within one month after the discovery of the misconduct (time off or illness is not taken into account);
• no later than six months after the offense was committed (if the guilty actions were discovered during an inspection or audit - within two years);
• within one year - if the guilty actions were committed not at the workplace. But during the performance of labor duties.

Features of the dismissal of certain categories of employees

The dismissal of some employees has a number of features. This is due to the fact that they have a higher status and perform specific duties. Let's list them:

1. Directors - they can be dismissed for loss of confidence only after the issuance of an order for disciplinary action. The decision on this should be made at the general meeting of the founders.
2. Deputies and prosecutors terminate the contract with them if facts of doing business, participating in commercial projects for profit, having an account in a foreign bank were revealed.
3. Military personnel - termination of the contract for loss of confidence is possible only after an internal investigation, a disciplinary sanction and an announcement of incomplete official compliance. The dismissal process can take up to 6 months or more.

If the offense was committed outside of work

Misdemeanors committed not at the time of the performance of official duties and leading to a loss of trust are not recorded by the organization. Relevant papers do not need to be drawn up, and any document from which the meaning of the employee’s misconduct is clear, for example, a court decision to hold liable, can become the basis for dismissal.

Consequences of dismissal

An entry in the work book, indicating a loss of trust, can scare away any employer. This will make future employment more difficult. In addition, there are other difficulties.

1. Unemployment benefits, calculated from average earnings, are paid for only three months. Then the dismissed person will receive the minimum amount.
2. A temporary ban on conducting activities related to servicing money and valuables will be imposed on the dismissed person.

How to contest a dismissal

An employee who believes that he was treated unfairly has the right to appeal against the actions of the employer in the labor inspectorate or in court. However, if all the documents confirming his guilt are drawn up correctly, the chance to prove his case is small.

Sanctions imposed on the employer for unjustified dismissal

If it is proved that the employer unreasonably terminated the contract, the dismissed person will be reinstated. In addition to this, he:

• pay for the time of forced absenteeism, based on average earnings;
• Compensate for moral damage (if there is a corresponding claim).

According to Article 5.27 of the Code of Administrative Offenses of the Russian Federation, a fine will be imposed on the employer in the amount of:

• 30-50 thousand rubles - for legal entities;
• 1-5 thousand rubles - on IP.

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In the workflow, various situations may arise, which are sometimes difficult to understand. Therefore, you should always be guided by legislative documents to resolve conflicts. The last step an employer can take is to fire. The employee must have committed a serious misconduct for such a decision to be made. Among the reasons that led to such consequences, one can distinguish dismissal due to loss of confidence. In any case, such a step must be documented.

Dismissing an employee

Relationships within a team can take many forms. However, the law equally protects the rights of the employer and the employee. All internal relations are regulated by the Labor Code. When hiring, an employment contract must be concluded that defines the rights and obligations of an employee. In the future, its violation may entail administrative, and in some cases, criminal liability.

The procedure for dismissal can be of a different nature. The employee has the opportunity to pay off work at his own request and the reasons can be very diverse. The most important thing in this case is that there is no pressure on him. The process of dismissal is not associated with any difficulties.

If the dismissal is initiated by the employer, it is required to have sufficient grounds for making such a decision. In case of unjustified dismissal, the court may reinstate the dismissed person, as well as punish the head administratively. In this connection, having made a decision to dismiss, the employer needs to study the law, as well as prepare the necessary documents.

The main reasons for the rupture by the head of the contract are described in Article 81 of the Labor Code of the Russian Federation. They are considered as causes independent of the employee, and associated with his illegal actions. The first group includes such cases:

• Reduction;
• Liquidation of the enterprise;
• Mismatch. In this case, the low qualification of the employee, or health problems, may play a role. As a rule, they can be fired based on the results of certification.

Remember, you can not fire pregnant women, as well as employees on vacation or on sick leave. The only exception relates to the liquidation of an enterprise. Dismissing employees for the above reasons, the employer is obliged to pay them the average monthly earnings.

Consider the acceptable reasons for dismissal related to the fault of the employee:

• Violation of discipline in a gross form. This may include absenteeism, being drunk or under the influence of drugs at work, divulging a secret, stealing, or acting in an accident;
• Constant failure to comply. In this case, the employee must already have administrative penalties;
• immoral act;
• Forgery of documents during employment;
• Dismissal due to loss of trust.

Loss of trust

So, any reason for dismissal must be justified, and the whole procedure must take place within the framework of the law. First of all, you need to find out whether the employee has committed actions on the basis of which he can legally be fired. In case of dismissal due to mistrust, the law does not provide clarification of which employee cannot be dismissed. It determines who can be fired on that basis.

The law notes that it is possible to dismiss by mistrust if the employee serving the values ​​entrusted to him is guilty. This is clearly stated in clause 7 of article 81 of the Labor Code of the Russian Federation. The list of these employees is defined in the Ordinance of the Ministry of Labour. It is supposed to conclude a liability agreement with them. This list includes:

• Heads of cash desks, warehouses, pantries;
• Heads of shops and sections;
• household managers;
• Store directors, department heads and merchandisers;
• Cashiers, or employees performing their duties;
• Suppliers;
• Catering managers and administrators.

The list is quite large, but the presence of a position in it does not yet give grounds to conclude an agreement. The second condition is the direct connection of the employee with the material values ​​entrusted to him. Dismissal will follow as a result of violation of the contract, in case of material losses. Therefore, it is impossible to attract a chief accountant under this article, although he works with finances, all operations with them take place virtually.

It is also worth noting that the employee is held liable for the damage caused, without having an agreement in the following cases:

• Damage caused in the performance of official duties;
• The damage was caused by actions of a criminal nature;
• The damage was done while under the influence of alcohol or drugs;
• Intentional damage.

Possible reasons

After the conclusion of the liability agreement, the employee services the material or monetary values ​​transferred to him. Trust in him is reflected in the instructions describing his duties and rights. The law does not reflect the actions that caused the dismissal under the article, however, the main cases can be identified:

• Corrupt practices;
• Actions that led to the loss or theft of monetary and material values;
• False information about income and expenses;
• Fictitious write-off;
• Keeping illegal savings in foreign banks.

The seventh paragraph of the article can be used when the misconduct committed is not related to the enterprise. For example, an employee, by a court order, must pay compensation after committing a wrongful act. This may cause the administration to lose confidence in him. At the same time, when dismissing him, it is enough to attach a court decision to the order.

However, with this wording, an employee cannot be fired if the misconduct was committed during a one-time performance of duties related to material values. They must be performed continuously. In this case, it must be proven that the employee deliberately committed unlawful acts. The group of persons who signed the contract is not subject to dismissal - they can be punished financially.

Procedure

Before starting the process, you need to have indisputable evidence of the employee's guilt. Otherwise, such dismissal may be challenged in court. Therefore, it is worth collecting evidence. If you do not resort to the help of the police, you need to create a commission to investigate.

It is created based on a memo, which is compiled by the person who discovered the violation. It is performed in an arbitrary form, contains information about the act itself, as well as the time it was performed. It is no longer necessary if the violation was reported by law enforcement agencies.

The commission conducts an inventory of the existing values, but before that, the employee must give a receipt that everything is safe. He is required to draw up an explanatory note, for which he is given two days. It is better to apply to the Commission in this regard with a written request. It is written in an arbitrary form, with a mention of Article 193 of the Labor Code of the Russian Federation, which serves as its basis. In case of refusal by the employee to write an explanation, it is necessary to record this fact in a memorandum.

All facts collected by a special commission should be reflected in the act. It is drawn up in any form, confirming or denying the misconduct of the employee. When proven guilty, the commission proposes punishment. After that, the head, having familiarized himself with the conclusions of the commission, makes a decision. In case of dismissal, a two-week working off is not required.

Having all the evidence, the employer can dismiss the employee at any time.

But you have to follow the procedure. First of all, a notice is drawn up warning the employee of the dismissal. He must familiarize himself with it under signature. In case of refusal, an act is written.

After that, an order of the appropriate form is drawn up. The wording in it corresponds to the entry that will be made in the work book. It also notes documents proving the guilt of the dismissed person. Usually this:

• Missing act;
• Reporting note;
• Judgment.

Within three days, the employee must familiarize himself with it. An entry is made in the work book, fixing the reason for the calculation, and a reference to the relevant law. The number and date of the dismissal order is also recorded.

Employee calculation

After completing all the documents, leaving, the employee receives:

• work book;
• Income statement.

He also has a full financial settlement. He receives his due salary and vacation pay if no cash deductions for losses have been accrued. If the required compensation is large, it is necessary to make a statement to law enforcement agencies.

Terms of termination of employment

In order for the dismissal to be legal, it is important to comply with all deadlines. It must occur before the expiration of a month from the moment the misconduct was discovered, excluding vacation and sick leave. However, this period should not be more than six months from the moment the act was committed, or two years if the claims were found during the audit. When committing an offense not related to official activities, the manager may dismiss the employee within a year from the moment of receiving information about it.

When carrying out all procedures, the allotted time limits must be strictly observed. Otherwise, if after the date of dismissal, which is in the order, the employee continues to work, the contract is prolonged.

Illegal dismissal

Once again, I would like to note the need for the correct execution of all documents and evidence of the guilt of an official. Otherwise, he will file a lawsuit in court, and win the case. As a result, the employer will be forced to reinstate the dismissed person, as well as pay him absenteeism and compensate for moral damage.

In addition, when contacting the labor inspectorate, where an employee can complain, a fine will be imposed on the employer. Its amount depends on the form of ownership of the enterprise.

The leader must understand that the decision to dismiss due to loss of confidence must be balanced. First of all, it will cause irreparable harm to the dismissed employee. Such a punishment is extremely painful and with such an entry in the work book it is extremely difficult to find a job.

Judicial practice shows that the courts objectively consider such cases. Often, employers do not understand the nuances of the wording, and fire people out of distrust who are not related to material values. Sometimes agreements on material liability are not drawn up or legal deadlines are not observed. All this leads to the cancellation of the dismissal.

Therefore, both parties in the event of a conflict situation, it is necessary to obtain professional legal advice. This will save you from many mistakes and losses, and an unscrupulous employee will get what he deserves.

Consider the procedure for dismissal due to loss of trust. Which of the employees can be dismissed on this basis, the terms and rules of the procedure.

One of the reasons for dismissal may be the loss of confidence (clause 7, part 1, article 81 of the Labor Code of the Russian Federation). This procedure has a number of features, and it is important to do everything right so as not to subsequently prove your case in court. Let's analyze the whole complex process step by step.

Who can and cannot be fired due to loss of confidence

You can dismiss an employee who works with monetary or commodity values ​​\u200b\u200bfor loss of confidence if, as a result of his actions, the employer has ceased to trust him. Direct relation to the maintenance of valuables should be enshrined in an employment contract, an agreement on full liability or in the job description.

But even if the guilt is proven, you cannot fire:

• pregnant employee;
• a temporarily absent employee (it is possible to dismiss an employee after he returns to his job duties);
• minor in the absence of the consent of the labor inspectorate and the commission for minors and the protection of their rights.

Reasons for losing trust

Dismissal due to loss of confidence is possible if the employee has caused direct damage to the property of the employer, that is, the available property has decreased in quantity or its condition has deteriorated. In this case, the perpetrator will have to compensate for the restoration or fully compensate for the damage. But remember that lost profits cannot be recovered.

In addition, an employee can be fired for loss of confidence if he has committed illegal acts not related to the performance of official duties. In this case, the employer needs to establish the fact of the crime and receive a copy of the court verdict, which established the guilt of the employee.

How to fix bases

Dismissal due to loss of confidence is a set of actions that must be strictly observed in order to avoid violating labor laws.

If an employee has committed actions related to the performance of labor duties, his dismissal is a disciplinary measure. When terminating an employment relationship on this basis, it is necessary to strictly follow the disciplinary procedure established by the organization, including the deadlines.

The manager needs to demand a written explanation from the employee. The form of explanation is not established by labor legislation. If the employee is ready to write an explanatory note, there is no need to require him to give an explanation in writing. If the situation is conflicting, then the notification must be issued in writing and handed over to the subordinate under signature. In case of refusal to sign, an act is drawn up.

The legislation gives the employee two working days to provide explanations. The term shall be counted from the date following the day of filing the claim.

The procedure for filing a dismissal

Dismissal due to loss of confidence, the procedure for the employer's actions to be carried out is provided for in Article 193 of the Labor Code of the Russian Federation:

• detection and fixation of the guilty actions of the employee;
• an official investigation;
• obtaining a written explanation from the employee;
• an act on the results of an internal investigation;
• issuance of an order;
• dismissal.

Step by step procedure

Step 1. The employer records the fact of committing guilty acts in the form of a memo or memorandum, since there is no unified form.

Step 2. The employer, by order, creates a commission to conduct an internal audit consisting of at least three people. The order fixes the date, the purpose of creating the commission, its powers, the period of its activity, full name. and the positions of the members of its staff. Members of the commission get acquainted with the order under the signature.

Step 3. The commission establishes the fact of committing guilty acts, time, place, method, cost of damage, establishes the specific perpetrator and the degree of his guilt, stores the materials of his investigation.

Step 4. The employer requires the employee to provide a written explanation, which is provided within two business days. If there is a conflict, the employee must be notified in writing of the need to provide an explanation. In the absence of explanations, the head draws up an act of refusal to provide them.

Step 5. The commission records the results of the investigation in the act. There is no unified form of this document. In addition to the results and conclusions about guilt, the act contains proposals for the punishment of the employee (if there is evidence of guilt). All members of the commission sign the act.

Step 6. Based on the results of the audit, the employer issues a dismissal order with reference to paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The employee gets acquainted with the order under the signature within three working days from the date of publication. Refusal to familiarize the employer fixes the act.

Step 7. The employer dismisses the employee for loss of confidence:

• no later than 1 month from the date of discovery of the misconduct (illness or vacation are not included in the calculation of the term);
• no later than 6 months from the date of the misconduct, but if the fact was discovered during the audit or inspection - no later than two years from the date of the commission;
• not later than one year from the day when the employer learned about the misconduct, if the actions were not committed at the place of work or in connection with the performance of their duties.

The last point needs some clarification. If the actions that give rise to the loss of confidence are not related to work, then the dismissal will not be a disciplinary sanction (part 3 of article 192 of the Labor Code of the Russian Federation, paragraph 2 of paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 ). Therefore, take into account the procedure for applying the penalty, established by Art. 192, 193 of the Labor Code of the Russian Federation, in this case it will not be required. Dismiss under paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation for guilty actions committed by an employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, it is possible no later than one year from the date of discovery of the misconduct by the employer (part 5 of article 81 of the Labor Code of the Russian Federation and clause 47 Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

An employee dismissed for a corruption offense is included for five years in the register of persons dismissed due to loss of confidence. The term of inclusion is counted from the moment of adoption of the act that served as the basis for inclusion in the register. The register is posted on the website of the federal GIS in the field of civil service.

How to make an entry in the labor

The basis for making an entry in the work book is an order. Entries are made according to the following rules.