Article: dismissal due to loss of trust

Termination of labor relations due to loss of trust on the part of the former employer is a legal procedure provided for by law as an effective way to get rid of an unconscionable employee. Cases of dismissal in connection with the loss of confidence are now often found in work practices. Applying this legal basis, it is important to properly complete each phase of dismissal, since any violations committed during this procedure can serve as a basis for judicial proceedings with a former employee. The result of the judicial process may be the recognition of the employer's actions as unacceptable and illegal, with consequences in the form of restoration at the previous place of work and (or) making changes to the work record book of the dismissed employee. How should the dismissal procedure be properly conducted in connection with the loss of trust? Who is allowed and whom of the employees can not be dismissed on this basis?

Grounds and conditions for dismissal

As a rule, when it comes to the termination of employment contracts due to lost trust, the basis for this is paragraph 7 of Article 81 of the Labor Code of the Russian Federation. It should be noted that dismissal of an employee in connection with a loss of trust is permissible under the following conditions:

• There is incontrovertible evidence that the employee committed the guilty actions, which served as a reason for the loss of confidence. Such actions may include embezzlement, proven facts of corruption, negligent treatment of material assets entrusted to employees, concealment of information on incomes or convictions for economic crimes, and so on. The general list of acts contains the Labor Code of the Russian Federation (see clause 7.1 and clause 7, clause 81). Dismissal in connection with the loss of confidence is required to prove in the course of an internal investigation. In this case, it is not necessary to involve an employee in the administrative (criminal) case.

• Such grounds as the article "Dismissal due to loss of trust" can be applied exclusively to employees personally serving (material handling, transportation, reception, issuance, etc.) material values, especially cash. This condition must be documented by the employee, on the basis of specific points of the employment contract (contract), job descriptions, contracts on full (collective or individual) liability and so on. This principle, which applies to dismissal cases on the basis discussed in this article, is perhaps most often violated. As an example, you can result in the dismissal of the "seventh item" of employees who hold positions such as chief accountant, economist, accountant. Experienced lawyers recommend using a "loss of confidence" in relation to this category of employees very carefully, focusing on whether the employee is responsible for direct contact with cash, the function of a cashier or accountant, for example. The lack of such duties for the dismissed "accountant" often leads to the fact that in the court the former employee is easily and quickly restored from the employer in his office or receives the required compensation.

• If the loss of employer's trust occurred as a result of actions related to the performance of labor duties, the dismissal of the employee in connection with the loss of confidence will also be considered as a measure of disciplinary punishment. For this reason, an indispensable condition for the termination of labor relations on this basis will be the strict observance of all stages of the disciplinary punishment procedure within the deadlines established for this purpose.

Dismissal from state or military service

You should know that dismissal in connection with the loss of trust can be made not only on the grounds of the above article, but with the application of the norms of federal legislation relating to a particular profession. For example, this applies to persons employed in the civil service, law enforcement agencies or professional military.

If you consider the dismissal of a serviceman in connection with the loss of confidence, then when issuing an order in this case should be guided by the Regulations on the procedure for military service, namely, the order on the dismissal of a serviceman. On the basis of Nos. 1, 2 parts 3, a serviceman can be dismissed with the phrase "in connection with the loss of confidence" if:

• Information about the incomes and property of the worker, his wife and children of minor age is not intentionally provided (or provided incomplete, unreliable).

• The serviceman carries out any entrepreneurial activity.

• A serviceman participates in the management of a commercial organization, receiving monetary payment for this, and also in the case of activities in the sphere of government bodies or other bodies of non-profit foreign organizations. These grounds for dismissal have a number of exceptions, all of which are defined by the Federal Law (this edition) "On Military Duty and Military Service".

• There is a case of failure to take measures to resolve (prevent) a conflict of interest, one of which is the soldier himself. Also, a commander who was aware of the fact of personal interest of a subordinate who has not taken action may be dismissed.

Similar provisions governing the grounds for dismissal in connection with the loss of confidence are available in federal laws "On the Prosecutor's Office", "On the Police", "On the Civil Service" and so on. At the same time, the need remains to prove the guilt of the dismissed employee and strict observance of the terms and procedure of dismissal.

When it is impossible to dismiss?

Even with fully proven guilty actions, it is not permissible to make a dismissal because of a loss of confidence:

• In relation to a pregnant woman.

• During the temporary absence of the employee (leave or sick leave). In this case, it will be necessary to wait for the employee to return to his job duties.

• There is also a restriction for the dismissal of a minor: dismissal in connection with a loss of confidence will need to be agreed with the local department of labor inspection and the representative of the commission on the affairs of minors.

Stages of the dismissal procedure

As it was said above, the dismissal in connection with the loss of trust for misdemeanors committed in the performance of immediate duties, the Labor Code refers to disciplinary penalties (Article 192). In this regard, the termination of the employment relationship on the grounds under consideration must be conducted in the manner provided for in Article 193 of the LC RF. This means that the order of dismissal in connection with the loss of trust:

• Detection and fixation of the employee's guilty actions.

• Carrying out an internal investigation.

• Obtaining a written explanation from the employee (drawing up an act of non-explanation).

• Act on the results (results, conclusions) of the official investigation.

• Issuing orders.

• Dismissal.

Terms for dismissal based on loss of trust

An important condition for observing the legality of the dismissal procedure will be the termination of the employment contract within the time frame established for this by labor law.

Apply dismissal in connection with the loss of confidence is permissible within one month, starting from the moment when the misdemeanor of the employee was identified. This period does not include:

• The time needed to agree on the dismissal decision with the trade union organization (if there is a representative body).

• Periods of absence of the guilty employee in the workplace (sick days and holidays).

It should be remembered that a disciplinary sanction (in this case, dismissal) can not be applied after six months from the day when the guilty actions were committed. The exception is the misdemeanors identified as a result of an audit or financial and economic audit: in this case - no later than two years.

Official investigation: basis, documentation

The actions of an employee who caused damage or created a risk of damage to the material values of the employer must be recorded in an official document: the inventory act, the report note of the immediate supervisor, the act on the identified shortage, and so on. Such a document is the basis for the commencement of an internal investigation, the purpose of which is either to confirm the guilt of the employee or to establish his innocence.

The powers to conduct an internal investigation are assigned to a specially created commission. The commission for the investigation is created by the order on the organization, which contains the reasons for conducting the work on the internal investigation, information about the members of the commission (name, position, list of authorities), validity periods and so on. The commission should include employees who are not personally interested in the results of the investigation, but who have sufficient competence to understand the circumstances of the committed offense.

The commission is obliged, in case of need, to make an inventory, as well as to request and prepare documentation, which will serve to confirm the guilt of the employee. Any action taken in the course of an internal investigation should be recorded in relevant acts, service or report notes, certificates, protocols. In addition, it is the duty of the commission to obtain an explanation from the worker himself.

Explanation or refusal to explain the employee

The requirement for an employee to provide explanations on the fact of misconduct is recommended to be drawn up by an official document on the organization and handed to the employee for signature. In special cases, for example, if an employee refuses to sign a document confirming receipt of a claim, an act should be drawn up on the refusal. In this case, the employee can be demanded not only personally, but also sent by mail, registered mail with a notification.

According to the general procedure for the appointment of a disciplinary sanction, the employee must be given two working days to provide an explanation. If after this period no explanations have been received, the relevant act (on non-provision or refusal of an employee to give an explanation) should be drawn up.

Results of work of the commission

The result of the commission's work should be an act on the results of the investigation. The document should include:

• Date of completion of the official investigation.

• Information about the members of the commission.

• Information about the employee involved in official investigation.

• A statement of the circumstances that triggered the official investigation, taking into account the degree of guilt and the severity of the guilt.

• Evidence of the employee's guilty actions (or proof of innocence) in the form of a list with attachments.

• Signatures of the members of the commission.

Dismissal for actions not related to the exercise of labor functions

Termination of labor relations with the employee, in the event that the reason for the loss of confidence were actions not related to the performance of his work duties, does not apply to disciplinary sanctions. For this reason, the procedure for the termination of employment is considerably simplified: there is no need for an internal investigation, and the timeframe in which a dismissal decision must be made is up to one year from the moment when the employer was informed of the misconduct of the employee. The argument for dismissal can serve as a copy of the document confirming the fact that the employee committed intentional actions, for example, a copy of the court decision.

At the same time termination of labor relations must also be made in accordance with the procedure established by labor law

Orders

If, as a result of the findings of the commission, a decision was made on dismissal in connection

Dismissal in connection with the loss of confidence is produced by issuing two orders:

• Order on the application of disciplinary punishment. This document contains not only mandatory information about the employee (name, title, etc.), but also information about the committed misconduct, instructions to the provisions of collective and labor contracts and other regulatory documents of the organization, violated as a result of the employee's guilty actions, Circumstances and the degree of guilt. Not later than three days the employee should be acquainted with the order for signature. If the employee refuses to sign, an act of refusal is drawn up, which is certified by the signatures of the commission members.

• The order of dismissal. It is published with reference to the requisites of the disciplinary order. The reason for dismissal is indicated in full compliance with paragraph 7 of Article 81 of the Labor Code.

Filling out work book

The entry of the employer is entered in the work record book with the same wording of the reason for dismissal as in the order. Example:

On the day of the termination of the employee, he is issued his registered work book.

Payments to the employee

Despite the fact that it often refers to the actual material damage, this circumstance does not absolve the employer from the obligation to make all the due payments. On the day of termination of the employment relationship, the employee must receive a final payroll calculation, as well as all bonus and compensation allowances. Compensation for the damage caused by the former employee, the employer, of course, has the right to demand exclusively through the court.