Dismissal of the head without explanation Article 278. Dismissed from work without reason. What to do. Reasons for use

22.12.2021 Insulin

In December 2001, the Labor Code of the Russian Federation was adopted, containing the main guarantees and features of the regulation of the labor regime of workers. In particular, one of the main issues is the dismissal and the correct execution of documents appropriate for the implementation of the procedure. All the nuances of this issue are fixed in the articles and the Labor Code of the Russian Federation.

Failure to comply with these standards may give the former employee the opportunity to appeal the dismissal in court or through the prosecutor.

It is a kind of supplement that basically contains those opportunities that can be used to terminate the contract without explaining the reasons with the manager.

Legal features

Has a name "Additional grounds for terminating an employment contract with the head of the organization"... Even from the name, you can see that managers of enterprises and other organizations can be fired for a wider list of reasons than ordinary ordinary employees.

Dismissal is the termination of the employment relationship between an employee of the organization, on the basis of which he is not obliged to continue to perform his official duties. From the employer the obligation to pay him a monetary reward is removed.

Article 77 of the Labor Code of the Russian Federation describes reasons why any employment relationship may be terminated:

mutual agreement of both parties;
expired term of the concluded employment contract;
termination of the contract at the initiative of the employer or the employee himself;
transfer to another place by his consent or request;
for other reasons that do not depend on the wishes of either party.

Dismissal must be formalized according to the rules established by federal and regional legislation, since non-compliance will be considered an administrative offense leading to a fine of up to 50,000 rubles.

Allows dismiss without explanation of any head of the organization, working in it on the basis of a concluded and valid employment contract, if the board of directors, shareholders or founders made a similar decision at their general meeting, and the data about this were necessarily correctly entered in the minutes.

Reasons for use

It is clearly indicated that using this article, you can terminate the relationship exclusively with the head of the organization... In a number of individual cases, his deputies and chief accountant may suffer... List of grounds on which the article may be used:

Dismissal in connection with the removal from office of the head of the organization, according to which the arbitration court is conducting a bankruptcy case.
The decision of the authorized body of the enterprise to make decisions on the termination of the existing labor contract with the head of the enterprise, in the manner prescribed by law.

In some situations, good reasons may be wage irregularities... Also, the dismissal process may be influenced by other grounds established by the Labor Code of the Russian Federation. Despite this vagueness of this paragraph of the article, the grounds provided must be described in competent and specific formulations related to the implementation of a person's work duties.

Regulated order

Particular attention should be paid to paragraph 2 of article 278 of the Labor Code of the Russian Federation. It is in this paragraph that the possibility of the competent and authorized body or the owner of the enterprise to dismiss the head without explaining any reasons to him is manifested. However, despite this, such a solution is still must be drawn up in compliance with absolutely all procedural requirements.

Step by step the whole procedure can be framed like this:

A decision must be made by the governing body of the enterprise regarding the dismissal. Whether it will be a board of directors, a meeting of shareholders or just owners depends entirely on the form of ownership.
At the meeting, the authorized person keeps a minutes, where all persons present at the meeting and their oral statements are recorded. Even the decision itself must be included in the protocol, where the names of those who voted positively or negatively are indicated.
Also at this meeting a new head of the enterprise should be elected. A special order is necessarily formed, according to which the old leader must transfer all his powers to a new person, including the existing documentation and material values.
On the last day of work with the dismissed manager, they are obliged to make a full calculation and issue a work book with a record of the order of dismissal without giving reasons. Must be indicated as a link.

The benefit paid in this situation should be not less than 3 salaries and other payments, put to him according to the official local documents.

This procedure is important, because in a situation of violation, the prosecutor's office, court or labor inspector can appeal the decision and return the person to their place.

A video that tells about the dismissal without explaining the reasons.

Is this procedure legal

Any dismissal of an employee without explanation impossible, since it is a direct violation of the law. provides a list of reasons why an employer has the right to terminate an employment relationship with an employee:

closure of the organization;
reduction of positions or number of employees;
change of ownership;
failure of certification for the position held;
disregard or violation of labor duties, laid down by him under the contract;
absenteeism without explanation;
appearance at the workplace in an inadequate state - after taking drugs or alcohol;
gross violations on the part of the employee - disclosure of classified information, theft of enterprise property, violation of labor protection requirements, leading to death or injury.

Based on one of the reasons provided, the employer has the right to carry out the dismissal procedure. The absence of their argumentation during dismissal is a grave violation, therefore a person has the right to demand the protection of his rights.

Is it allowed to use

If we consider different situations more clearly, then in the procedures for dismissal, although they are based on some articles, you can see their own nuances:

Dismissal from public service bodies without explanation is impossible. If you look at the Federal Law "On the State Civil Service of the Russian Federation" dated July 27, 2004 No. 79-FZ, it is clearly stated that it is impossible to dismiss without providing reasons, although there is a wider range of them.
The manager or director carrying out his activities under an employment contract, as mentioned earlier, is the only person in the enterprise who can be fired without providing reasons.
The basic principles of the Labor Code are applied to any ordinary employee of the organization, therefore, the employer cannot simply dismiss him on a whim. An explanation of the reason makes it possible to protect the employee.
In Art. 51 of the Federal Law "On Military Duty and Military Service" dated 03.28.1998 No. 53-FZ provides a list of reasons why a person can be dismissed from military service, therefore it is impossible to expel a serviceman from his post without providing a good reason.

What to do in such a situation

Dismissal without providing reasons is a gross violation of labor laws and the fundamental rights of an employee. That is why such a decision is so easy you can appeal if you take the following steps:

Write a statement to the head or founder of the enterprise with a request to provide reasons for the termination of labor relations with a package of documents proving this.
If there is a trade union in the organization and the employee participates in it, it is required to contact them for the protection of their rights. This function is one of their main responsibilities.
Within 1 month after dismissal, you can contact the labor inspectorate. It is required to write a written request and attach all the necessary documents. The same system is used to write a complaint to the prosecutor's office.
However, the most effective method would be to go to court. Filing a lawsuit leads to a result, although it will take a long time. If the claim is satisfied, the employer will be obliged to pay wages for downtime and moral compensation. The limitation period is 1 month after the dismissal.

The decision of the court or supervisory authority is binding on the head of the company, failure to comply with which leads to an administrative fine.

The rule that the owner can dismiss the head of the organization without explaining the reasons appeared in 2002, when the current Labor Code came into force. This norm, enshrined in Article 278 of the Labor Code, has given rise to contradictory jurisprudence for three years. But in 2005, the Constitutional Court of the Russian Federation (decree of the Constitutional Court of the Russian Federation of 15.03.2005 No. 3-P) recognized the owner's right to unmotivated dismissal of the head as legal.

Legal justification for the dismissal of a manager

The Constitutional Court of the Russian Federation came to the conclusion that Article 278 of the Labor Code does not violate the constitutional rights and freedoms of citizens, including the right to freely dispose of their abilities to work, since freedom of labor in the sphere of labor relations is manifested primarily in the contractual nature of labor, in freedom labor contract.

The court substantiated its decision in great detail by the need to maintain a balance between the civil law element (the interests of the owner) and the labor element (the interests of the manager as an employee of a special category) of Article 278 of the Labor Code, since this article contains two branches of law.

The owner carries out all his actions in order to increase the efficiency of his economic activity, therefore he has the right to dismiss the head without motivation. And the manager has a special status (broad powers, independence, higher wages, direct influence on the fate of the organization and the interests of the owner), because of which he needs less legal protection than an ordinary employee. This does not mean that the owner can dismiss the employee arbitrarily. The dismissal of such an employee is subject to certain rules: despite the absence of additional guarantees that are obligatory upon dismissal of an ordinary employee, the manager is guaranteed non-discrimination or abuse of the right, in addition, the employee must be paid compensation.

An attempt by managers to prove discrimination in connection with their dismissal after publicly expressing their opinion, contrary to the opinion of the owner, fails. The courts do not see violations of the employee's rights in such situations and believe that the owner can dismiss the manager if, due to the loss of trust in relations with him, he does not believe in his professional loyalty. It is unlikely that a leader who disagrees with the owner's strategy can be a reliable employee.

In judicial practice, there are many cases when, for example, the city administration fired the school director, the governor of the republic fired the vice governor, etc. Employees complained about abuse, discrimination, personal hostility, but in all cases the courts recognized that the employer had not violated the rights of an unmotivated employee.

Both the law and the clarifications of the Constitutional Court of the Russian Federation are applied upon dismissal not only in commercial organizations - they act upon termination of any employment contracts, including those concluded in state and municipal enterprises.

Since the Constitutional Court of the Russian Federation expressed its position, judicial practice has become more or less uniform. The adopted resolution of the Plenum of the Supreme Court of the Russian Federation (post. Plenum of the RF Armed Forces dated 02.06.2015 No. 21 (hereinafter referred to as Resolution No. 21)) confirms the correctness of the existing approach.

Characteristics of the institute of unmotivated dismissal of a manager

Let us examine the main characteristics of the institution of unmotivated dismissal of a manager.

Unmotivated dismissal is not a measure of legal responsibility, therefore, the employer is not bound by proving the employee's guilty behavior, he has the right to dismiss the latter without explaining the reasons.

Without specifying the reasons for the decision, both a fixed-term and an indefinite (including an indefinite) employment contract can be terminated.

Despite the fact that most of the guarantees provided to ordinary employees (a two-week warning, preservation of average earnings, etc.) do not apply to the manager, the parties have the right to fix them in the employment contract. And in this case, the employer will not be able to dismiss the manager without observing such additional guarantees.

It remains controversial whether the parties in the employment contract can provide for the employer's refusal to apply Article 278 of the Labor Code. On the one hand, as a result of such a refusal, the rights of the employee will obviously be improved, which is permitted by labor law. On the other hand, the refusal of the employer to apply the provisions of this article actually means the owner's refusal of his civil right to own, use and dispose of his property. And the refusal of citizens and legal entities to exercise their rights does not entail the termination of these rights (Article 9 of the Civil Code of the Russian Federation). Consequently, most likely, the employer's waiver of the right to unmotivated dismissal of the manager will be invalidated by the court.

An unmotivated dismissal of a manager does not deprive him of the right to challenge the dismissal. Claims for reinstatement are usually not granted if the worker justifies his claims on discrimination or abuse. However, the employee has every chance to recover at work if he can prove a violation of the procedure for making a decision on his dismissal.

The decision to dismiss the head must be made by the authorized body of the legal entity, the owner of the organization's property or the person (body) authorized by the owner. For example, in judicial practice there are such disputes: the dismissed director of an LLC filed a claim for reinstatement and was able to prove that the decision of the general meeting of the participants of this LLC was made with violations. Of course, the court reinstated him at work.

Also, reinstatement at work is possible if a manager who had immunity from dismissal was dismissed without motivation. The following categories of managers have such immunity:

Pregnant women, except in cases of liquidation of the organization (Article 261 of the Labor Code of the Russian Federation).
Women with a child under the age of three, single mothers raising a child under the age of 14 (a disabled child under the age of 18); fathers raising a child under the age of 14 without a mother (a disabled child under the age of 18), or guardians, trustees of children of the indicated age; parents (guardians, custodians) who are the only breadwinners of a child under three years old in a family with three or more children under 14 years old or a disabled child under 18 years old, if the other parent (guardian, custodian) is not in an employment relationship. An employment contract with these persons can be terminated only on culpable grounds (Article 261, Clauses 1, 5-8, 10, 11, Article 81, Clause 2, Article 336 of the Labor Code of the Russian Federation).
The manager during the period of temporary disability or being on vacation, except in cases of liquidation of the organization (Article 81 of the Labor Code of the Russian Federation).
Other executive employees who, due to special laws, cannot be dismissed under certain circumstances. For example, officials of an organization that publishes a mass media who participated in information support for elections, referendums in accordance with the legislation of the Russian Federation on elections and referendums cannot be dismissed on the initiative of the administration (employer) (clause 6 of article 45 of the Federal Law dated 12.06.2002 No. 67-FZ) from work within one year after the end of the relevant election campaign, referendum campaign, except for the case when they were punished in accordance with labor legislation, not contested in court or recognized in court legal and reasonable. Guided by this rule, the courts reinstate the general directors (chief editors) of the media.

As a legal defense, the employee also has the right to demand compensation. Despite lengthy disputes about the legality of the so-called golden parachutes, the Supreme Court of the Russian Federation determined (paragraph 12 of Resolution No. 21) that if a dispute arises about the amount of such compensation, the court has the right to take into account the factual circumstances of the case, for example, the length of the period of work of a dismissed person in the position of the head of an organization , the time remaining before the expiration of the employment contract, the transformation of a fixed-term employment contract into an employment contract concluded for an indefinite period, the amount (wages) that the dismissed person could receive while continuing to work as the head of the organization, additional costs that he may incurred as a result of termination of the employment contract. This means that in each specific case, the amount of compensation will depend on the factual circumstances and evidence of the parties.

In relation to the heads of state corporations, state-owned companies and business entities, more than half of the authorized capital of which is state or municipal property, as well as in relation to the heads of non-budgetary state funds, state or municipal enterprises, compensation is paid in the amount of three times the average monthly salary (clause 12 of Resolution No. 21; Article 349.3 of the Labor Code of the Russian Federation).

As indicated by the Supreme Court of the Russian Federation (paragraph 10 of Resolution No. 21), the violation by the employer of the rule on payment of compensation in itself is not a reason for reinstatement at work. The court has the right to collect compensation, interest for violation of the deadline for its payment, as well as satisfy the employee's claim for compensation for moral damage.

Particular attention should be paid to the fact that the plaintiff must correctly identify the defendant in his claim. In cases with commercial organizations, questions do not arise. But when dismissing from municipal and state enterprises, plaintiffs very often choose inappropriate defendants - the head of the administration or the administration itself. The claim must be brought against the enterprise itself, and the administration can be involved in the case, since it is the body authorized by the owner of the organization's property, which has the right to decide on the termination of the employment contract with the head of the municipal institution or enterprise.

Summing up, it should be noted that in most cases the courts refuse to reinstate workers who were dismissed under Article 278 of the Labor Code, since, on the one hand, it is difficult for employees to prove that discrimination or abuse of rights was committed upon dismissal, on the other hand , the courts understand the interests of the owner and the status of managers who, due to their education and experience, can provide additional guarantees in the event that the owner decides to part with them.

Fired without explanation

Why is a director less protected by law than an ordinary employee?

Today, there are hundreds of lawsuits in courts from former heads of education, health care, and culture. The second part of the 278th article of the Labor Code allows the director of a school, library, head doctor of a hospital to be fired without giving a reason. The deputies intend to rectify the current situation.

Do not dare to argue

Rodion Makarov, a 42-year-old Muscovite, has worked in education for over twenty years. All institutions, of which he was the head, became laureates of all-Russian and city competitions. Having held the role of director of both evening and general education schools, he was invited to head one of the Moscow colleges. With him, an experienced manager, a contract was concluded for five years, but eleven months later it was terminated: dismissal under the second part of Article 278 of the Labor Code, that is, without explaining the reasons. As Rodion Makarov himself admits, he allowed himself at a meeting with the boss to disagree with him ... Today the former director is engaged in tutoring to provide for his wife and four children, three of whom are minors. And he is sued in the hope of justice.

When the Labor Code was adopted in 2001, the logic of the notorious Article 278 appearing in it was explained by the need to increase the level of responsibility of managers and their labor productivity. In the commercial sector, such rules of the game are somehow justified: the founder invests money in the company and has the right to decide who will manage it more efficiently. However, in government organizations, one employee, in fact, decides the fate of another. The article has become a method of reprisal against the unwanted. Especially after the Constitutional Court of Russia clarified in 2005 that the rule applies to any leaders, regardless of the form of ownership. “Then the directors of schools, kindergartens and colleges began to be fired,” Mikhail Avdeenko, deputy chairman of the All-Russian Trade Union of Education, tells “Parlamentskaya Gazeta”. - They are actually being dismissed for having "looked wrong." There is no guarantee that a person will be disposed of because they do not meet professional criteria. The question is not to cancel this article, because situations are different, we are for the regulation of such dismissals - for example, mandatory discussion at the certification commission. "

Protect yourself

Today, many are looking for the truth in the courts, but most of the attempts end in nothing: the judges are only interested in one thing - whether the dismissal procedure was followed. For example, one director of a secondary school in the Voronezh region was deprived of his position four times, the court of the head was restored three times, since the dismissal procedure was violated - a woman was raising a child who had not reached the age of 14 alone. After the daughter grew up, the headmaster of the school had to agree to the dismissal - the court did not satisfy the claim.

The same story awaits those who have not received the due compensation in the amount of three salaries, money will be given, but no one will take back to work. “The law also refers to the conditions prescribed in the employment contract, where, of course, there could be a“ golden parachute ”, that is, a decent monetary compensation, - continues Mikhail Avdeenko. "However, the legal literacy of our fellow citizens, unfortunately, leaves much to be desired."

The fact that many leaders, agreeing, do not know what they are going to. This was confirmed to us in the legal department of the trade union of healthcare workers of the Russian Federation. “Many people are not informed that their relationship with the employer may end without explanation,” says Marina Krasnorudskaya, head of the department of legal and social protection of the organization. And he adds that today the trade union is trying to include a protective norm in sectoral agreements with departments and ministries of health of the regions: they cannot fire the head physician without the opinion of the trade unions. But this is not the case in all subjects.

Deputies against arbitrariness

A paradoxical situation is developing, says Sergei Kuzin, a member of the State Duma Committee for the Commonwealth of Independent States, Eurasian integration and relations with compatriots. “An ordinary worker is protected by the law more strongly than a manager. This may be the case for commercial organizations. The state, of course, is both an owner and an employer, but it shouldn't be for it to behave like that, ”the deputy emphasizes. - Let the founder have the right to dismiss the head of the controlled organization, but arbitrariness must be excluded. Kuzin said that a bill is being prepared, which at each of the three levels - state, regional or municipal - will determine the criteria by which the head of a state organization can be dismissed.

The State Duma Committee on Labor, Social Policy and Veterans Affairs will soon submit the document to the chamber. It is expected that it will be adopted by the end of 2015 - and that discrimination against the heads of state-owned enterprises will be ended.

How are managers fired? (Articles 278 and 279 of the Labor Code)

1. They break the contract for guilty actions (inaction) - in this case there are disciplinary penalties, compensation for losses caused to the organization.

2. Without explaining the reasons, by the decision of the authorized body of the legal entity, either by the owner of the property of the organization, or by the person authorized by the owner with payment of compensation not less than three average wages.

3. Dismissal is not possible for a number of persons, including pregnant women, single mothers with children under 14 years of age and others.

The Labor Code of the Russian Federation directly states:

Article 84.1. General procedure for registration of termination of an employment contract
Termination of an employment contract is formalized by an order (decree) of the employer.
The employee must be familiarized with the order (instruction) of the employer to terminate the employment contract against signature. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction). In the event that an order (order) to terminate an employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it against signature, a corresponding entry is made on the order (order).
The day of termination of the employment contract in all cases is the last day of the employee's work, except for cases when the employee did not actually work, but, in accordance with this Code or other federal law, the place of work (position) was retained for him.
On the day of termination of the employment contract, the employer is obliged to issue the employee with a work book and make settlements with him in accordance with Article 140 of this Code. At the written request of the employee, the employer is also obliged to provide him with duly certified copies of documents related to the work.
An entry in the work book on the basis and reason for the termination of an employment contract must be made in strict accordance with the wording of this Code or another federal law and with reference to the relevant article, part of the article, paragraph of the article of this Code or other federal law.
Moreover, in Art. 81 of the Labor Code of the Russian Federation lists almost all the grounds on which an employer can dismiss his employee.

Therefore, at a minimum, there should be an order of dismissal and a record in labor with the exact wording of the grounds for dismissal.
If this is not done, within 1 month from the date of delivery of the order or works.
the employee can appeal against such dismissal in court.

“Dismiss without explanation. "

One labor regulation that discredits all talk about the humanitarian goals of modernizing education

The headmaster in Russia is one of the key figures in the local community and the flagship of the modernization of education. At the same time, from the point of view of labor relations, the director of the educational institution is the most vulnerable employee in the school, who is most easily manipulated by the founder. High-profile cases of recent firing of active principals by founders confirm that the director's dependent position threatens school reforms. What is the mechanism of director dependence? Can the public influence the situation?
We are starting a conversation about this with Anna Vavilova, Deputy Director of the Center for Legal Applied Research, Institute of Education, NRU-HSE.

- We hear more and more often that the school principal was dismissed by the decision of the founder without giving any reason. Does this dismissal violate the spirit of labor law? After all, anyone has the right to know why he was fired.

- In this case, from my point of view, there is no contradiction. The same decision was made by the Constitutional Court when it considered this norm for compliance with the Constitution. The position of the Constitutional Court was as follows: the interests of the employee, who is the director of the school, and the owner of the property, which is the founder of the educational institution, must be balanced. The principles of labor law must be consistent with the principles of civil law - and this is the right of the owner of property to freely manage his property.
Free management of property also implies a change at any time of the main manager. The headmaster is a key figure in the educational institution on which the effectiveness of property management depends. The director, like every employee, has the right to work. But the owner of the property has a constitutional right to his property. And this means the right to put in a key post in the institution such a person whom he fully trusts. And - to remove from office a person whom he has ceased to trust.
Following the principles of social protection, the Constitutional Court gave the directors a social guarantee in case of unmotivated dismissal: the payment of three times the average salary to him at a time. After that, the norm on the payment of three average wages was included in the Labor Code.

- Can the principle of dismissal without explanation apply to the teaching staff of the school or to its service personnel?

- Not. The norm applies only to the head of the institution. All teachers of the school have the right to challenge their dismissal and demand from their employer - that is, from the director - an explanation of the reasons. The director is the only one in the school who is appointed to his position by the founder (that is, by the education department, municipal administration, etc.). And therefore the director of the educational institution is the only employee in the school who can be dismissed by labor legislation without explaining the reasons. For example, just because the founder is no longer interested in working with this person.

- It turns out that the director is the most unprotected figure in the school?

- As an employee, yes. This is indeed the most vulnerable figure, completely dependent on the founder. And it should be borne in mind that dismissal "without explanation" is not the only opportunity for the founder to part with the director of the educational institution. There is a legal possibility to include in the employment contract with the director of the educational institution any grounds for his dismissal.

- Even those that are not provided for by labor legislation?

- This is the peculiarity of the labor contract of the director of the educational institution. The grounds for the dismissal of any employee - from a teacher to a cleaning lady - are clearly provided for by labor legislation.
It is impossible to include in the teacher's employment contract the reasons for dismissal that are not provided for by the Labor Code: for example, if three complaints a year are received against the primary school teacher Marya Ivanovna, we will fire Marya Ivanovna. It is impossible to prescribe in the teacher's employment contract such a basis for dismissal as low USE results. More precisely, you can prescribe anything you want, but the dismissal itself on this basis is recognized by the court as illegal and the teacher will most likely be reinstated at work. But in the employment contract of the head of an educational institution, it is possible to fix almost any additional grounds for dismissal. Of course, they must not contradict labor laws. However, in practice it is known that they can be very diverse. For example, the requirement that 95% of graduates of his school pass the Unified State Exam. If this figure is not achieved, the management of the institution is considered ineffective, and the director can be replaced.

- But in the event of such a dismissal, the headmaster of the school can at least ask for an explanation from his superiors?

- In this case, yes. This is called dismissal due to additional circumstances provided for by the employment contract. Since these circumstances were foreseen in advance, they are not just possible, they need to be announced. Dismissal without explanation is another article that does not initially require an explanation. You cannot get an explanation of the founder on it, even if you go to court. It's another matter if the director was dismissed under this item, and three average salaries were not paid to him. Then the director has the right to appeal against the actions of the founder.

- This rigid scheme is clearly designed for commercial structures. Who even thought of applying it to school?

- The question is periodically raised that the rule on the dismissal of the head of an institution “without giving reasons” should not be applied to social institutions. No one doubts that the owner of a commercial structure should have the right to freely change the managers of his property. And there are doubts that this principle is appropriate for such a socially significant institution as a school. But our legislation is formulated in such a way that the situation is the same for any legal entity - regardless of whether it is a commercial or non-commercial structure. In practice, there is no difference between a school and some kind of consumer cooperative, which is interesting only for its members ...

- But we have already witnessed more than once cases when school principals are fired in the middle of the school year. And school is a living organism. This is not a factory floor, when you can replace one person at the assembly line with another ...

- Yes, the headmaster is a significant figure from a social point of view. Much depends on the personality of the director in the organization of the educational process. This idea was partly put into the basis of the KPMO project: the school is largely made by the director!
Unfortunately, in recent years we have seen many examples throughout the Russian Federation, when the founder, when changing the director of the educational institution, is guided not so much by the interests of the educational process as by the principles of his own convenience. It is more convenient for him to deal with more or less identical op amps and more or less identical activities of these op amps. If we add to this that the founder completely determines the state municipal task (and, consequently, the subsidy for the public institution), we observe in many cases the director's complete dependence on the founder. Hence - the impossibility for these principals to implement in their school something interesting for the educational process. Therefore, protecting the uniqueness of an op-amp is a serious problem. And this issue in connection with the dismissals of school principals has already been raised, in particular, by the Public Chamber of the Russian Federation.

- Even if we agree that the dismissal of the school principal, who suddenly disliked the founder, is legal, it affects the rights of not only the principal. And also - teachers, students, their parents, in a word, all participants in the educational process. What opportunities do they have?

- The public, when making these decisions, has no right, in principle, to anything. The only way is to raise this issue with the founder. But I want to draw your attention to the fact that in some educational institutions a scheme was adopted that protects the rights of the director in case of possible dismissal. Some schools have included the right of governing boards to consent to the dismissal of a principal if it occurs on so-called “innocent” grounds. That is, for such, when the director did not violate either the law or the charter of the institution.

- How legal is such an amendment to the school charter? After all, it seems to be in conflict with the founder's right to dismiss the director?

- The amendment is completely legal, because the system of governing bodies of an educational institution is prescribed by the charter. But there is a nuance here: the charter is signed by the founder. Consequently, he himself must approve such a school charter, in which the director is dismissed only with the consent of some collegial body of the educational institution. If the founder signed such a charter, it means that he planned to listen to the public opinion from the very beginning. After all, this is self-restraint that the founder imposes on himself.

- If in the new Law "On Education in the Russian Federation" there was a norm that protects the rights of directors of educational institutions from sudden dismissal by the decision of the founder, would it work?

- From a formal legal point of view, yes. Today, the law on education does not provide any additional guarantees for heads of educational institutions, because all these issues are regulated by labor legislation. However, given that the Labor Code is the same federal law, an exception from one federal law can be established at the level of another federal law. Therefore, the Law "On Education in the Russian Federation" could formally, legally and technically introduce an exception from this norm of the Labor Code concerning the dismissal of directors of educational institutions.

- Why does no one suggest doing this?

- Here, too, the coordination of interests is needed. While we talked about the fact that there is a director who cares for the quality of education, who suffers from the indifferent position of the founder. And there are situations in which it is the director corps who rejects any changes proposed by the founder. It is not always the case that we have a conservative founder and an innovative director. If we could present a director completely independent of the founder, then it is unlikely that we would have implemented KPMOs in the regions.

Dismissal without explanation

The labor legislation of the Russian Federation provides that an employment contract concluded between an employee and an employer may be terminated:

in connection with the expiration date of its validity or the condition for the performance of certain works;
earlier than the specified period of validity by agreement of the parties or at the request of one of the parties with justification of the reasons;
open-ended contracts can also be terminated at any time and the employee is dismissed:
- at the request of the worker himself, if he writes a corresponding statement;
- the initiator can be the head of the enterprise if he is not satisfied with the work of the employee;
for reasons that do not depend on the employee and the head of the organization (for example, conscription into the country's armed forces).

Any dismissal must comply with all statutory requirements.

Otherwise, the dismissed employee can appeal to the labor inspectorate or prosecutors with a complaint, to the court with claims.

After checking the indicated facts about non-compliance with the labor legislation upon dismissal, recognizing the claims as legitimate and reasonable, the employee can be reinstated at work with a recovery from the enterprise in his favor of the average earnings for all days of forced absenteeism - from the day of dismissal until reinstatement in the previous position ...

In addition, an employee dismissed in violation of the Labor Code of the Russian Federation has the right to demand compensation for moral damage inflicted on him undeservedly.

In case of proven facts of violation of labor legislation, an administrative fine in the amount of one to five thousand rubles may be imposed on the management, in addition, on an enterprise, as a legal entity, a fine is imposed in a more significant amount - from thirty to fifty thousand.

Responsible persons filling out the dismissal of an employee are obliged to prepare all the documentation very scrupulously and not to violate all the necessary procedural steps, depending on the reason for the dismissal.

Grounds for dismissal

1. Upon dismissal of his own free will, it is necessary to have an application from the employee who wants to terminate the employment relationship.

According to the norms of the Labor Code of the Russian Federation, it is not necessary to indicate the reason why the employee wants to quit.

In Art. 80 of the Labor Code of the Russian Federation, it is stipulated that the application must be submitted at least two weeks in advance to the employer, unless there are significant reasons why the employee cannot continue to perform his labor duties.

At the same time, in the event of the dismissal of the head of the enterprise of his own free will, he is obliged to notify the authorized higher body one month in advance of his intention to terminate the employment contract.

For the period that a resigning person must work before the issuance of a dismissal order, he has every right to change his decision up to the last day of the term (two weeks or a month, depending on whether a simple employee or the head of the enterprise is dismissed) and withdraw his letter of dismissal.

2. Article 81 of the Labor Code of the Russian Federation gives a list of grounds for dismissal at the initiative of the employer.

3. For the head of the enterprise, the requirements in everything are much higher than for ordinary workers and the Labor Code in this matter is no exception.

Article 278 of the Labor Code of the Russian Federation provides additional grounds for dismissing the head of an organization or enterprise.

Can a manager fire him without giving a reason?

Article 81 of the Labor Code of the Russian Federation specifically indicates the grounds on which the head of an enterprise (organization) can dismiss an employee.

1. In the event of the liquidation of the enterprise itself or if the individual entrepreneur ceases to operate.

This article provides that in the event of liquidation of one organization by reorganizing it into another, employees should be offered to transfer to a new company (organization) created on the basis of the liquidated one, and only if they refuse, dismissal is possible.

Or, when the company is completely liquidated, it goes without saying that the dismissal of all employees is inevitable.

2. If it is necessary to reduce the number of employees, they are warned in writing in accordance with the established procedure about the forthcoming reduction and, in the presence of vacant positions, they are offered further employment.

Reducing the number of employees does not imply transfer to vacant positions, since transfers within the enterprise will not reduce the number of employees.

3. In cases where, based on the results of the attestation commission's conclusion, a decision is made that the employee's qualifications do not correspond to the position held, after the employee does not want to improve his level of knowledge, he may be dismissed for inadequacy for the position held.

4. If the owner of the enterprise's property changes, he has the right to change its management team - the first head, his deputy and the chief accountant.

The rest of the workers are simply dismissed, they cannot be.

5. For gross violation of their official duties, both the head of the enterprise and an ordinary employee can be dismissed.

Gross violations are:

being at work in an inadequate state (alcohol or drug intoxication);
absenteeism, both absence from work all day and for four hours;
if an employee who, due to his job duties, knows secret information concerning production or the state, is caught in their dissemination;
theft of enterprise property or its destruction established by the authorized body or by a court decision, not targeted waste of funds;
violation of labor protection requirements, as a result of which it is possible to receive injuries and injuries to employees, up to and including fatalities;

6. If a financially responsible employee (including the head of the enterprise) loses confidence due to guilty actions. For example, hiding the true information about the income and expenses of the enterprise.

7. In the event that the management of the enterprise makes decisions that entailed significant harm to its development and further activities.

8. An employee involved in the upbringing of children and youth commits acts that are incompatible with the norms of morality.

9. The manager grossly violates his obligations stipulated in the employment contract and job description.

10. Providing false documents when applying for a job.

11. There are also other grounds for dismissal, which may be defined in the local documents of the organization or established by Federal laws.

Dismissal without explanation, Article 278 of the Labor Code of the Russian Federation applies only in addition to the grounds on which the head of the enterprise can be dismissed.

The provisions of this article cannot be applied to other employees upon dismissal.

The manager cannot dismiss an employee without specifying specific reasons, both in the order to dismiss, and when entering an entry in the work book.

The procedure for dismissing a manager without explaining the reasons

According to paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, the head of an enterprise may be dismissed without explanation by the decision of the authorized body or the owner of the enterprise's property.

At the same time, the dismissal of the head without explaining the reasons should be in compliance with all procedural norms.

1. To terminate the employment contract with the manager ahead of schedule, without any explanation, the body that has accepted him for work in this position has the right.

Before terminating the employment contract with the manager, there must be a decision of the meeting of shareholders or the owner, drawn up accordingly, depending on the form of ownership of the enterprise.

If it is a Joint Stock Company or a Limited Liability Company, there must be a meeting of shareholders or the board of directors, if provided for by the charter of the company.

In a municipal institution or state enterprise, the decision is made by the owner of the property.

2. It is important to observe the procedure for organizing and holding the meeting itself.

All shareholders and the head of the organization must be notified in writing of the day, time, place and agenda.

The decision to dismiss the manager must be recorded with an indication of the number of those present and, accordingly, who voted for the dismissal and against.

Here, a decision should be made on the appointment of a new manager and a person responsible for receiving and transmitting documents from the previous manager.

A copy of the minutes of the meeting must be delivered to all founders.

3. On the last working day, an order is issued to remove the authority of the manager (the case when the manager can write an order for himself).

4. According to the act of acceptance - transfer of affairs, the dismissed manager must transfer all documents and material assets under his control to his newly appointed follower or to the person appointed responsible for accepting documents.

5. On the last working day, a full settlement is made and a work book is issued with an appropriate entry without specifying a reason with reference to Art. 278 of the Labor Code of the Russian Federation.

It is important to take into account that if a manager is dismissed without explaining the reasons, he must receive an allowance in the amount of at least three salaries and other payments provided for by local documents.

6. First of all, the bank in which the organization's account is opened about the change in management must be notified.

7. In the next three days, the new manager must submit information for making changes to the Unified Register of Legal Entities and submit information to the bank to change the bank card.

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Dismissal of an employee is not a complicated procedure, if you follow all the necessary nuances during registration. The grounds for the legal termination of employment are listed in Art. 77, 80 and 81 of the Labor Code of the Russian Federation. But there is article 278 of the Labor Code of the Russian Federation, which provides additional grounds for terminating labor relations with the head of the organization.

The Labor Code clearly provides for the grounds for dismissing employees. If they are not followed, the dismissed employee can file a complaint with the labor inspectorate, the prosecutor's office or the court. Upon the complaint, a check will be initiated, during which all documents of dismissal will be checked. If violations are found, the employee will be reinstated at the workplace, and the employer will be charged his wages for forced downtime, as well as a fine for non-compliance with labor legislation. Therefore, the employer cannot dismiss his employee without explaining the reasons.

Grounds for dismissing an employee

The reasons why an employment contract with an employee can be terminated are given in Art. 77, 80 and 81 of the Labor Code of the Russian Federation. It is impossible to deviate from these grounds!

In Art. 77 of the Labor Code of the Russian Federation provides general grounds. These include:

agreement of the parties. That is, the employee and the employer agree that the employment relationship ends under certain conditions. These conditions are reflected on paper, which is signed by both parties;
termination of the term of the employment contract. An exception is the moment when the term of the contract has expired, and the employee continues his activities. At the same time, the employer did not demand the termination of the relationship;
the employee's desire. He must write a statement in which he will reflect his desire. It is not necessary to provide a reason;
employer's initiative. It is impossible to fire just like that, at the request of the employer! In Art. 81 of the Labor Code of the Russian Federation provides clear reasons for the termination of relations on the part of the head. Any basis must be supported by documents;
transfer of an employee to another employer or to another position (elective). Written consent must be obtained from the employee;
refusal of the employee due to the fact that the employer has changed working conditions;
refusal of an employee due to a change in the owner of the property of the enterprise;
other grounds listed in Art. 77 of the Labor Code of the Russian Federation.

For managers, this list is somewhat expanded. In Art. 278 of the Labor Code of the Russian Federation provides additional grounds for terminating labor relations with a hired manager. These include:

removal from office due to the fact that the enterprise has entered the stage of bankruptcy;
the decision to dismiss the head was made by the founders of the enterprise, its participants or shareholders;
non-compliance with the established ratio between the salary of the manager and his subordinates.

Other grounds for termination of employment are not provided for by current legislation.

Is such dismissal legal

Not! The manager cannot dismiss his employee without explaining to him the reasons for such an act. In Art. 81 of the Labor Code of the Russian Federation provides an exhaustive list of grounds on which an employer can terminate labor relations with an employee:

liquidation of an enterprise;
reduction in the number of employees of the enterprise or reduction of positions;
the employee does not correspond to the position that he occupies. This was revealed in the course of personnel certification;
the property of the enterprise has changed its owner;
the employee repeatedly ignores his job duties or has disciplinary action;
the employee repeatedly grossly violates his labor duties;
the employee missed work, that is, was absent from the workplace for more than 4 hours in a row or during the entire shift, while he cannot explain his absence;
appearance at work in a state of alcoholic, drug or other toxicological intoxication. This fact must be proven by the conclusion of a medical professional;
when gross violations on the part of the employee are detected. These include:
- disclosure of classified information. On this basis, you can be dismissed if the employee, when hiring or in the process of working with this employer, signed an appropriate non-disclosure agreement of any information;
- theft of enterprise property or material assets entrusted to an employee. He can be dismissed only if the court finds this employee guilty of these actions;
- violation of labor protection requirements, which led to injury or death.
other culpable actions, which are presented in Art. 81 of the Labor Code of the Russian Federation, and which take place at a particular enterprise.

If the employer has identified one of the conditions presented above and in art. 81 of the Labor Code of the Russian Federation, he must record it in the presence of witnesses. This does not apply to the liquidation of the enterprise or the reduction of staff, but the guilty actions of the employee must be reflected in the documents.

Dismissal without explanation can only be applied to the head of the enterprise who works under an employment contract. The founders, participants or shareholders of the company can make such a decision at the general meeting and make it into the minutes.

What to do upon dismissal

There are executives who believe that they have the right to fire an employee without giving any reason. This is a gross violation of employees' labor rights!

If it happened that the employer dismissed the employee without explaining the reasons to him, the employee should know that he can defend his violated rights. He can take the following actions:

write an appeal addressed to the direct employer or founder. In the appeal, you need to state a request to understand the reasons for the dismissal. All documents proving the termination of labor relations must be attached to the application;
if the company has a trade union organization, and the dismissed employee is a member, then you need to contact them. They are obliged to protect the labor rights of employees, including from illegal dismissal;
within a month from the date of receipt of the order of dismissal, a written appeal must be sent to the labor inspectorate. All documents on hand must also be attached to the complaint;
write a complaint to the prosecutor's office, also attaching copies of documents;
write a statement of claim to the court. This is the most effective way to protect your rights, but not the shortest. You need to be prepared for the fact that the leader will "twist". But if the court recognizes the rightfulness of the dismissed employee, then he will be reinstated in his position, he will be paid wages for the forced downtime. He can also file another statement of claim in order to recover moral damage from the employer. You need to file a lawsuit within a month from the date of dismissal.

If the supervisory authority recognizes the unlawfulness of the employee's dismissal, then the employer and the manager will not expect the most pleasant consequences. These include:

reinstatement of a dismissed employee at work;
payment of legal costs;
compensation for moral damage.

If the employer does not comply with the court order, then he may be subject to penalties under Art. 5. 24 Administrative Code of the Russian Federation.

Dismissal from a state organization without explanation

If an employee serves in a public organization in a regular position and does not apply to civil servants, then the same grounds for dismissal apply to him, which are specified in Art. 77, 80 and 81 of the Labor Code of the Russian Federation. You can't fire him without a reason!

However, it is impossible to fire civil servants without reason! Their dismissal is governed by Art. 37 and Art. 39 of the Law "On Civil Service" and the norms of the Labor Code of the Russian Federation.
Additional grounds for dismissal from a government organization include:

failure to fulfill obligations;
loss of trust. This reason for the dismissal of a civil servant "intersects" with the grounds specified in Art. 81 of the Labor Code of the Russian Federation - theft of property and material values ”. A civil servant can lose confidence in the following circumstances:
- did not comply with the prohibitions;
- disclosed confidential information;
- was unable to resolve the conflict of interest that arose in the workplace between employees of a lower rank;
- did not counter corruption;
- provided false or false information about his income and property, as well as about the income and property of his family members;
- did not provide such information at all within the specified period;
- was engaged in entrepreneurial activity;
- took part in the management bodies of a commercial organization on a paid basis.

The procedure for dismissing a civil servant is exactly the same as for an ordinary employee. It is necessary to observe all personnel nuances. Otherwise, the civil servant will also be able to challenge the dismissal.

Dismissal of a director (manager) without explanation

The only employee who can be fired without explanation is the manager or director of the company who is hired.
In paragraph 2 of Art. 278 of the Labor Code of the Russian Federation states that the head of the company can be dismissed without explanation by the decision of the authorized body of this enterprise or the owner of the property. Here it is also necessary to observe all the nuances of the personnel registration of this procedure.

That is, dismiss the director or head of the company without explaining to him the reasons for such a decision can be the same person who hired him. The authorized management body is, depending on the organizational and legal form of ownership of the company:

founder;
shareholders;
participants.

Before terminating the employment relationship with the manager, a general meeting of the founders, shareholders or members of the enterprise must be held. The issue of the dismissal of this employee is on the agenda. The participants of the meeting are voted on. If the decision is made by a majority vote, then the employment contract with the manager is terminated.

In this case, the decision taken at the general meeting must be formalized in the form of a protocol, which reflects all the issues discussed, as well as the decisions taken on them. If the founder, participant or shareholder is the only representative of the governing body, then he makes a sole decision and draws it up correctly.

The meeting must also be held in accordance with current regulations. All founders, as well as the head of the company, must be notified of the day and time of the meeting, as well as the issues that will be put on the agenda. Notification takes place in writing.

The decision to terminate the powers of the head is taken along with the decision and appointment of a new person to this position. All this is documented in the protocol. You also need to appoint a person who will supervise the receipt and transfer of documents from the previous manager, and also draw up the corresponding act.

A copy of the minutes of the meeting is handed over to all participants, as well as to the head. On the basis of this document, an order is made, which is handed over to the dismissed director on the last working day. This is the only case when a leader writes an order for himself and signs it from the position of both sides of the relationship.

According to the act, the former head transfers to his successor all the documentation, as well as material values. This must be done in the presence of the new manager, as well as the person appointed in charge of acceptance.

On the last working day, a full financial settlement is made with the former manager. He, like an ordinary employee, needs to be paid wages, compensation for the vacation that he did not have time to take off, as well as severance pay. The latter is paid in the event that the dismissal occurs without culpable actions.

Now you need to notify the bank about the change of director, and the new head must submit an application to Rosreestr to amend the Unified State Register of Legal Entities. This must be done within 3 days after the dismissal of the former manager. He must also visit the bank and re-issue a bank card.