If the employee refuses. Employee burnout: what to do when an employee refuses to work
Therefore, it is better to wait two working days and only after that make a decision on dismissal. c) The dismissal is completed by signing an order (form T-8), which indicates the details of the orders that imposed previous penalties, and the basis documents for application disciplinary action in the form of dismissal. The employer is obliged to familiarize the employee with the order against signature and take other actions related to the termination labor relations: issue work book, make the final calculation (Part 4 of Article 84.1 of the Labor Code of the Russian Federation). All actions have fairly tight deadlines. The dismissal order must be issued no later than one month from the date of discovery of the misconduct, without taking into account the time of illness, the employee’s time on vacation and the time required to take into account the opinion of the representative body (Part 3 of Article 193 of the Labor Code of the Russian Federation).
The employee does not fulfill his job duties. methods of dismissal according to the rules
It is proposed to credit the income tax of individuals to the budget of the region where the employee is registered. However, the Federal Tax Service of Russia opposed this initiative. Tax officials believe that this will lead to negative consequences for employers.
Young parasites will be forced to pay taxes. The size of the payment is already known. Senators and officials believe that the burden on the budget can be reduced if all unemployed citizens of working age pay their own contributions to the Compulsory Medical Insurance Fund. Although the authorities have not announced the date of introduction of such a tax, they have already calculated the size of the future payment.
Russian priests are not protected from violations of labor legislation. One of the parishes of the Saratov Diocese of the Russian Orthodox Church managed to avoid administrative liability for violating the procedure for dismissing workers.
The employee does not perform functional duties. how to punish?
Common mistakes In addition to violating the above requirements, companies often make other mistakes that can lead to dismissal being declared illegal. Let's list some of them. Application of penalties not provided for by labor legislation.
Labor legislation There are only three types of disciplinary sanctions: reprimand, reprimand and dismissal. However, employers often use other wording, announcing warnings, warnings, severe reprimands, etc. to employees.
This is unacceptable, since the application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is prohibited (Part 4 of Article 192 of the Labor Code of the Russian Federation). Imposition of two penalties on an employee at once.
Attention
However, in order for bringing an employee to disciplinary liability to be recognized as legal, it is necessary to comply with the procedure for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation. Thus, before applying a disciplinary sanction, it is necessary to request a written explanation from the employee.
Important
If after two working days the employee has not provided the specified explanation or refused to provide it, it is necessary to draw up a corresponding report. In addition, you can bring an employee to disciplinary liability no later than one month from the date of discovery of the misconduct, not counting the time the employee was ill, on vacation, as well as the time required to take into account the opinion of the representative body of employees.
When imposing any disciplinary sanction, it is necessary to take into account the severity of the employee’s offense and the circumstances under which it was committed.
What to do with an employee who refuses to perform work under the contract
Recording the fact of repeated failure to fulfill labor duties. Failure by an employee to fulfill his job duties can be documented in a memo, act or other documents.
They must detail the circumstances of the violation, indicate the details of the document that establishes the employee’s duties, and the norm violated by the employee. Obtaining explanations from the employee regarding the violation. Before applying a disciplinary sanction, the employer is obliged to request an explanation from the employee (Part.
1 tbsp. 193 Labor Code of the Russian Federation). This must be done in writing and handed to the employee against signature, preferably in the presence of witnesses. If the employee has indicated reasons for not fulfilling his job duties, the company determines whether they are valid.
How to fire an employee who does not fulfill his job duties
The employer is obliged to familiarize the employee with the order against signature and take other actions related to the termination of the employment relationship: issue a work book, make the final payment (Part 4 of Article 84.1 of the Labor Code of the Russian Federation). Deadlines. All actions have fairly tight deadlines.
The dismissal order must be issued no later than one month from the date of discovery of the misconduct, without taking into account the time of illness, the employee’s time on vacation and the time required to take into account the opinion of the representative body (Part 3 of Article 193 of the Labor Code of the Russian Federation). The day the violation was discovered is the day when the violation became known to the employee’s immediate supervisor (clause
34 resolutions of the Plenum Supreme Court dated 17.03.04 No. 2). Disciplinary action for general rule cannot be imposed on an employee if more than six months have passed since the commission of the offense (Part 4 of Article 193 of the Labor Code of the Russian Federation).
For the same reasons, the court may find illegal dismissal and reinstate the employee at work (decision of the Moscow City Court dated June 22, 2010 in case No. 33-18222). Question on the topic: How to prove an employee’s failure to fulfill instructions given by the manager in electronic form? IN lately courts are increasingly accepting printouts as evidence electronic documents and messages (decision of the Moscow City Court dated August 17, 2010 in case No. 33-24532).
The provisions of local regulations, which establish the possibility of bringing orders (instructions) to the attention of employees in electronic form and determine this order. Read: An employee requests leave at his own expense. In what cases can you refuse him? Employees are late for work, how to establish discipline without resorting to dismissals The employee has not completed the probationary period.
What to do if an employee refuses to perform his duties
Key conditions for dismissal Before applying disciplinary sanctions to an employee, including in the form of dismissal, the company needs to make sure that two mandatory conditions are present. First. Labor duties for violation of which the company plans to hold the employee liable must be properly assigned. Otherwise, the application of disciplinary sanctions, including dismissal due to repeated failure to fulfill job duties (clause 5, part 1, article 81 of the Labor Code of the Russian Federation), will most likely be declared illegal by the court. For these purposes, the company needs documents that confirm the following.
Firstly, the fact that an obligation has been established for the employee, for failure to fulfill which he is held accountable. It could be local normative act, employment contract, job description, order (instruction) of the employer, defining the responsibilities of a particular employee.
Based on Part 3 of Article 72.1 of the Labor Code of the Russian Federation, the employee’s consent is not required to move him from the same employer to another workplace, to another structural unit located in the same area, entrusting him with work on another mechanism or unit, unless this entails a change in the terms of the employment contract determined by the parties. Accordingly, in this case, the employee is obliged to perform his job function when moving. Consents the specified employee to perform the corresponding function is not required if it does not entail changes in the terms of the employment contract determined by the parties. Refusal of an employee to perform his or her duties labor function is a failure to fulfill the labor duties assigned to him, a violation labor discipline and, accordingly, disciplinary offense. A similar position follows from judicial practice.
What to do if an employee refuses to perform his duties
If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up. (edited) Federal Law dated 06/30/2006 N 90-FZ) (see text in the previous edition) A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes. And do this constantly. The more such comments and reprimands he receives, you will have the right to dismiss him under Article 81, paragraph 5 - for repeated failure by the employee to comply without good reasons labor duties if he has a disciplinary sanction; Clarification from November 7, 2013 - 23:47 Sorry, typo - article 81.5 Latest news: The Federal Tax Service is against paying personal income tax at the place of residence of employees Parliamentarians want to make changes to the procedure for paying personal income tax by tax agents.
From the above part we can conclude that the condition for establishing a disciplinary offense can be included in the internal rules labor regulations. According to Part 1 of Article 192 of the Labor Code of the Russian Federation, for committing a disciplinary offense, that is, failure to comply or improper execution by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions: 1) reprimand; 2) reprimand; 3) dismissal for appropriate reasons. From this part it follows that a disciplinary offense is understood as failure to fulfill or improper performance by an employee, through his fault, of his labor duties. By virtue of paragraph 2 of part 2 of Article 21 of the Labor Code of the Russian Federation, the employee is obliged to conscientiously fulfill his job responsibilities assigned to him by the employment contract.
In Art. 193 of the Labor Code of the Russian Federation states that if an employee violates his labor or official duties, he must be punished in the form of disciplinary action. But you cannot punish an employee without requiring him to provide written explanations about what happened.
At the same time, the employer can request an explanation from the employee about the incident only in writing. The requirement is drawn up in 2 copies. One remains with the employee, and the other is transferred to the HR department. This copy must bear the signature of the offending employee. This indicates that he received the request and is familiar with it. This is the only way the employer can prove that he demanded an explanation from the employee about what happened.
The employee has no right to refuse written explanations to the employer. He can explain the situation in writing within 2 working days. If the employee does not want to give explanations or does not provide them within the specified period, the employer draws up a report. The presence of this document does not in any way affect the application or non-application of punishment to the offender.
The waiver of explanation must also be given to the employer in writing. The worker writes it by hand. If an employee refuses to write an explanatory note, in the text of his refusal he indicates:
- the “header” of the document is the abbreviated corporate name of the employer;
- the position and initials of the employer’s representative authorized to accept such documents for consideration;
- number of the incoming document and the date of its registration in the journal;
- the title of the document is “refusal to give written explanations”;
- text of the document - here the employee describes the facts of the incident, and then indicates the reasons why he does not want to give written explanations to his employer;
- date of writing the refusal;
- position, signature and transcript.
Does the director have the right to demand a written explanatory statement?
Since the director is the person authorized by the employer to make decisions on the enterprise as a whole, only he can demand written explanations from the employee.
But the director must be appointed to the position by an appropriate order from the founders of the enterprise or the employer personally. In his job responsibilities the authority to apply disciplinary sanctions to employees must be specified. And the employer or his authorized person does not have the right to impose a penalty on the employee without receiving written explanations.
Sometimes oral explanations are sufficient if they reveal a complete picture of what happened, which did not lead to serious incidents.
Is it possible not to write an explanatory note at work?
Only the employer or a person authorized by him has the right to demand that the employee give written explanations regarding this or that fact. No other boss, including the head of personnel or the head of a department, has the right to demand such a document from an employee.
Therefore, the employee has the right to refuse everyone except the employer. He will not face any sanctions for this! But he is obliged to write an explanatory note at work at the request of the employer, especially if an incident occurred at the workplace. The requirement to provide explanations must be presented to the employee in writing. If the employee refuses to write an explanatory note, then he must also submit the refusal in writing to the employer.
What should I do if my employer demands that I send him an explanation by email? Electronic explanatory notes are not official personnel documents, since they do not have the employee’s personal signature. Therefore, the requirement to provide explanations for email can be ignored.
The explanatory note in electronic form will have its legal force if the employee has his own qualified electronic signature, with which he signs the document. But today, ordinary ordinary employees do not have such signatures, since the burden of producing them falls on the employer.
The employer can send a demand to the employee, but only by signing it with his electronic signature. Then the employee can provide an explanation or refusal to provide an explanation in the usual written form. The law does not prohibit doing this!
What are the consequences of refusal?
Refusal to write an explanation should not entail any sanctions from the employer against the employee. But, as the practice of applying disciplinary punishments shows, if an employee issues a refusal, then he admits to what he did.
Upon receipt of a refusal, the employer must draw up a statement indicating the employee’s refusal to write an explanatory note. If the employer has decided to apply a disciplinary sanction to this employee, the basis for issuing the order will be an act of refusal.
You have received an employee’s refusal to sign the order. This scenario is not so rare. In the practice of many entrepreneurs, there have been cases when an employee refused to familiarize himself with the main documents relating to his fate.
For example, citizen N., working at employment contract, showed up to work in a state of intoxication. This fact was duly recorded and recorded. Based on the results of the internal audit, the director of the company issued an appropriate order, which provided for bringing citizen N. to disciplinary liability. However, the obstinate employee refused to sign the document. In addition, he threatened the employer with the possibility of appealing to the commission on labor disputes, because “his rights were violated.”
The employer had to contact lawyers. The latter recommended taking the following route: drawing up a special act on refusal to familiarize with the director’s order, and then bringing the citizen to justice.
Rules for drawing up an act
The following requirements are usually imposed on this document:
- The act must be drawn up by a HR specialist.
- The act is usually drawn up in free form, but there is a list of mandatory details that must be mentioned. For example, identification data of the person who drew up the act, position and full name. the employee who refused to sign the order, identification data of witnesses to the employee’s specified behavior, the place and time of drawing up the document, and others.
- The document must be signed by at least 2 witnesses.
Procedure for drawing up the act:
1. “Act Cap.” Typically includes the logo or official name of the organization, the date and time the document was compiled.
2. “Name of the act” indicating the number and the document that the employee refused to familiarize himself with.
Example: Act No. 456 on refusal to get acquainted with Order No. 201-ls “On the transfer of employee Ivanov M.M. to another place of work."
3. “The main content of the act” - indicates the situation that led to the need to draw up the specified act, identification data of witnesses, etc.
Example: “Today, June 6, 2017, at Rus LLC (address: N, street N, building N) in the presence of three witnesses:
- deputy director of the company with limited liability Alekseev Sergei Sergeevich;
- chief accountant of the limited liability company Svetlana Ivanovna Ivanova;
- head of the sales department, Mikhail Mikhailovich Mikhailov;
Ivanov Mikhail Mikhailovich was familiarized with order No. 201-ls “On the transfer of employee Ivanov M.M. to another place of work."
However, Ivanov M.M. refused to sign the document, citing his disagreement with the director’s decision.”
4. At the end there must be signatures of the author of the act and witnesses.
Remember that the correct drafting of a notice of refusal is a good defense for the employer against possible employee complaints!
The employee refuses leave. Opinion of a lawyer and Rostrud 08/14/2018According to the schedule, the employee must go on annual paid leave from August 15. Moreover, the vacation is “combined”: the rest of the vacation for the previous working year and the vacation for the current working year. The employee said that he only uses the rest of the vacation for the last working year and 7 days for the current one (28 days in total), and he doesn’t need more. There’s no need at all, he doesn’t want to rest, he has nothing to do at home, he’s bored. The order has been issued for all vacation days, but the employee has not yet signed it and offers to redo it. What can you do in this situation?
As a general rule, an employee must take 28 days off for each working year. Moreover, the vacation is established by the vacation schedule and there are no grounds for postponing it (as follows from the question).
According to Art. 122 Labor Code RF paid leave must be provided to the employee annually.
According to Art. 123 of the Labor Code of the Russian Federation, the order of provision of paid leave is determined annually in accordance with vacation schedule, which is mandatory for both the employer and the employee.
If the vacation for the last working year was more than 28 days, then you can consider replacing part of last year’s vacation with cash compensation. In this case, the rules of Art. 126 Labor Code of the Russian Federation:
“Part of the annual paid leave exceeding 28 calendar days, upon the written application of the employee, can be replaced by monetary compensation.
When summing up annual paid leave or transferring annual paid leave to the next working year, monetary compensation may replace the part of each annual paid leave exceeding 28 calendar days, or any number of days from this part.
It is not allowed to replace with monetary compensation annual basic paid leave and annual additional paid leave for pregnant women and employees under the age of eighteen, as well as annual additional paid leave for employees engaged in work with harmful and (or) dangerous working conditions, for work in appropriate conditions (excluding payment monetary compensation for unused leave upon dismissal, as well as cases established by this Code).”
If the employee does not yet need leave for the current working year in its entirety, then the parties can use the provisions of Art. 125 and 124 of the Labor Code of the Russian Federation - divide this vacation into parts and postpone one part to another time. Of course, strictly in accordance with the requirements of the law.
If the employer follows the employee’s lead and does not provide him with leave, then in the event of an inspection by the State Labor Inspectorate, a fine is possible.
If the employee refuses to sign the leave order, draw up a report about this. The act is certified by the signatures of the persons present at the refusal.
Position of Rostrud
“...The employer is obliged to provide leave to the employee according to the vacation schedule, regardless of the employee’s refusal to take leave...”
(Information portal of Rostrud, October 2017, Onlineinspektsiya.rf).
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Is it possible not to sign a notice of layoff? Can.
However, this will not change anything if the decision to cut is made and there are no flagrant violations, such as whether the candidate belongs to the category of “untouchables”, such as pregnant women, then the signature in itself will not solve anything. They'll fire you anyway.
And if the company is planned to be liquidated, it will certainly not help, no matter who the person is.
So legally, the fact that if an employee refused to sign a notice of layoff does not mean anything - this it just obliges the employer to ask why there is such intractability all of a sudden, and then draw up an act in the presence of two employees - stating that this citizen was familiarized with the upcoming changes in the company, but refused to sign the notification paper.
Methods and conditions for delivering notice of a reduction in the number or staff of employees
The reduction procedure itself looks like this:
- The head of the company issues an order to carry out reductions, it goes to the personnel department.
- Personnel officers carefully study everyone who works in this organization and draw up lists of candidates.
- Everyone on the list will have to receive notice - two months in advance(and in case of mass layoffs - in three).
- The General Director issues a reduction order, and the accounting department receives an order to transfer payments to each of the departing employees. Each person being dismissed must also be familiarized with the order against signature (or, again, may refuse to sign).
- Calculation, entry into the work record.
The notification is delivered personally to the employee. If he is absent - temporarily disabled or on vacation - then by registered mail with notice.
All notifications are registered in the appropriate journal and are stored for no less than 75 years.
If an employee refuses to sign a notice of layoff...
If an employee refuses to sign a layoff notice, then let him not sign.
Legally, this no longer matters.
The employer should not immediately be so hostile to this - it is much better to ask personally about the reasons that prompted this.
And they may not be hidden in a harmful nature, but in other nuances - for example, the employer did not offer the citizen to stay at work in another vacancy, the opinion of the trade union was not taken into account, and it is generally unclear how the employee got on this list. He has the right to ask his boss about all these reasons and receive a comprehensive answer.
It is quite possible that this person cannot be made redundant.. This may be the case if it falls into the following categories:
- pregnant workers;
- on maternity leave;
- combatants;
- sole breadwinners in the household;
- having two or more dependent people.
In this case, the citizen can not only not sign, but contact labor inspection, the prosecutor's office or the court - and they will oblige the employer to reinstate them in their positions.
Meanwhile, if everything complies with the law and the notified person has not signed the paper within two working days, you need to move on to the next step - drawing up an act. It will then need to be filed with the employee’s personal file.
Important: It is better to require written explanations for refusing to sign a notice of layoff.
Drawing up an act
There is no single form approved by law for it; each company compiles it differently. The following points remain clear:
- name of the organization, in full;
- in whose presence the paper was drawn up;
- name of the act (on refusal to sign the notice of layoff)
- what we are talking about, concisely (warning about staff reductions and impending dismissal);
- a phrase stating that such and such (job title, surname, first name and patronymic) refused to sign the notification;
- how did he explain it? (if not, then that’s how it should be written – “not justified”);
- signatures with transcripts, organization seal.
For example:
“We, the undersigned, have drawn up this act in that in connection with the implementation of measures to reduce the staff of Sigma-M LLC and in accordance with the current legislation (Article 180 of the Labor Code), the management of Sigma-M LLC personally notified through a notification against the signature of the senior cleaning manager Maria Ivanovna Petrova two months before her upcoming dismissal. Maria Ivanovna Petrova refused to sign and accept the notice. Maria Ivanovna Petrova also refused to give an explanation for this decision.”
What's next?
Then nothing, the act is drawn up and filed with the case. After two months, a dismissal order is issued, which is also provided for review against signature. Or, again, refusal to review and sign. In the end, not signing a document is the right of every person.
A corresponding entry is made in the citizen’s work book. On the day of departure, he will have to receive in his hands all the payments due to him, and this is:
- full payment, including compensation for vacations not taken;
- allowance.
If you do not sign the notice of layoff, the person will still must register with the labor exchange- and until he finds a job (a maximum of two months is allotted for this), he must retain his average monthly salary.
Thus, talk that if you didn’t sign anything, then nothing will happen to you - a myth.
Unfortunately, it will. But whether the rights of the person being dismissed will be respected depends only on him, and going on the defensive is not the best idea.
It is much better to understand the reasons and ask for supporting documents.