When applying for a job, the future employee must sign an employment contract with the employer and study job description. However, if an employee ignores his job responsibilities in the course of his activities, then the employer’s reaction can be completely different: from a loyal attitude to a drastic action - dismissal from his position. What does the employee face if he fails to comply? job responsibilities?

All businesses need to have job descriptions for each position. In accordance with this document, the new employee will perform his duties. This instruction helps the employee work as expected by the employer, so it must list the functions and indicate the level of responsibility for each position. What are the consequences for an employee if he fails to fulfill his labor responsibilities, described in Art. 192 Labor Code of the Russian Federation.

The employee does not fulfill his duties

For intentional failure to fulfill his direct duties, which are listed in the job description of the enterprise, the employee is given disciplinary sanctions in the form of a reprimand or. As a last resort, the employer has every right to dismiss an employee for this reason (Labor Code of the Russian Federation).

But this condition applies only if the employee was familiarized with his functional responsibilities upon taking up his position. If the manager several times noticed incidents of failure to fulfill direct duties by the employee, then in the first case the employer reprimands him, and in subsequent cases there will be a penalty, fine or dismissal of the employee.

For individual categories employees may be subject to other disciplinary sanctions in case of failure to fulfill their labor duties (Article 189 of the Labor Code of the Russian Federation).

The most common causes of violation may be the following:

1. The job description is drawn up formally. It does not contain real details and information about the position, there is no list of clear responsibilities, and the level of responsibility and rights of the employee are not indicated.
2. Incorrect distribution of functional responsibilities. The document, for example, describes universal responsibilities covering several positions. As a result, some people fulfill them and others don’t. In addition, this may be the case when an employee is given a lot of duties of a multi-level nature, which he, in principle, cannot perform. This is the employer's fault, not the employee's. The employee is required to perform the minimum standard of duties described in his employment contract, and he performs additional duties that arise in the course of work at his own request.
3. Dual subordination of the employee. It's about about several managers of one employee. An employee must have one specific direct supervisor who gives him tasks and controls their implementation. It happens that the heads of other departments, whose work is related to the functions of the employee, control or require subordination and reporting from him, but he is not able to fulfill all his duties efficiently. This point should be taken into account when analyzing the problem.

There are many reasons why an employee does not fulfill his job duties. It is important to keep in mind that the tasks of the HR department at the initial stage of work are to conduct an introductory course, agree with the employee on his responsibilities, and promote easy adaptation and after that periodically monitor the level of performance of official duties and the business process itself.

Penalties and payments for failure to fulfill obligations

If an employee has not fulfilled his job duties, the employer has no right to impose fines by law. However, as for the irresponsible employee, payments are made in accordance with the terms of Art. 155 Labor Code of the Russian Federation. There are 3 conditions here:

• If an employee has not fulfilled his labor duties due to the fault of the employer, he is paid his average monthly earnings.
• If there was a failure to fulfill functional duties by the employee for reasons that did not depend on either the employer or the employee, then the payment is made in the amount of at least 2/3 of the full rate.
• If the fault for failure to fulfill functional duties lies entirely with the employee, then the employer has the right to pay wages to the plan based on the fact of work performed.

Dismissal for failure to perform official duties

In case of systematic violations labor order and failure to fulfill labor duties, the employer has the right, on the basis of an order, which will state the appropriate reason for dismissal.

The procedure for punishment for systematic violation and failure to complete one’s work is described in Art. 81 Labor Code of the Russian Federation. The legislation does not specify clear criteria for violations; they are determined by the employer.

The procedure for dismissal for failure to fulfill official duties is carried out according to the following algorithm:

• Provision of documents by the employer on the basis of which it is possible to prove the employee’s guilt.
• Analysis of the job description, which should specify clear responsibilities of the employee.
• Clarification whether the employee belongs to the category of persons who are prohibited from dismissal at the initiative of the employer (Article 261 of the Labor Code of the Russian Federation).
• Receiving from the employee a written explanation of his violations.
• Analysis of the situation and all valid reasons for violations, if any.
• Drawing up a dismissal order based on violations.
• Familiarization with the order and its signing.
• Registration by the personnel officer of the dismissal order and making a corresponding entry in work book employee.

IN mandatory on the day of dismissal, the employer must make a full settlement with the employee and return his work book to him.

Conclusion

The criteria for failure to fulfill official duties are quite vague, and they must first be established by the employer. Quite often, it is through the fault of the manager that the employee does not perform his work efficiently, and therefore dismissal for this reason is often illegal. At the same time, an illegally dismissed employee can safely file a claim in court, and if violations are discovered on the part of the employer, he will be reinstated and receive compensation.

IN Labor Code(Article 192) stipulates the right of the employer to attract employees who do not fulfill their labor duties to

When imposing a repeated penalty in the form of dismissal, the order must refer to the order imposing punishment for the previous offense.

It is also necessary to refer to the act, which stipulates the obligation not fulfilled by the employee, and a description of the violation committed (time, place, circumstances, supporting documents).

Further actions

Other necessary actions:

• Familiarization of the employee with the order against signature.
• Entry into the work book for repeated failure to fulfill job duties.
• Issuance of documents and invoices to the employee.

Entitled payments

The fact that the dismissal occurred under the article does not in itself affect the amount and procedure of calculation.

The only exception can be the case when, as a result of the employee’s failure to fulfill his job duties, the employer suffers material damage. If this happens, then with the consent of the employee, the amount of damage may be from the payments due to him.

By general rule upon dismissal, wages and compensation for unused vacation time are subject to payment.

Consequences for the employee

There are practically no legal consequences for dismissal under this article. But such an entry in the work book can provoke a wary attitude towards the employee from the outside. potential employers.

After all, everyone wants to get a responsible and competent employee, but not everyone wants to hire someone who has already failed at work once.

Employer's liability for wrongful dismissal

If the rules for recording misconduct committed by an employee are violated, dismissal for repeated violations of labor functions can be considered unlawful.

After all, if one is fired for repeated violations, and the previous penalty was imposed in violation of the law, then it must be removed and the grounds for dismissal disappear.

If an employee is punished for refusing to perform actions that were not within the scope of his duties, this is also grounds for lifting the penalty.

If the grounds used by the employer for dismissal are recognized by the court, then the employee will need to be paid the wages not received (lost) from the moment of dismissal. That is, the employer will pay in rubles for the violations committed.

Resolving disputes in court: examples from practice

The Perm Regional Court reinstated the plaintiff, who was dismissed for repeated failure to fulfill his job duties.

The basis for making such a decision was that the employee’s job responsibilities were not clearly defined in the employment contract, and he was not familiarized with job descriptions.

Thus, the court found it difficult to determine the scope of the employee’s duties and, as a result, declared the imposition of penalties and dismissal illegal.

The Kirovsky District Court found the dismissal of the employee under paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation due to the fact that the employer did not refer in orders to impose disciplinary sanctions on the act, the duties recorded in which she did not fulfill.

In addition, after the employer provided information about this act, it turned out that the employee was only partially familiar with it e-mail.

Subsequently, despite the fact that it was established that the employee actually violated the rules established by her employer, the court, based on the identified violations in the execution of the order, reinstated her in her position.

So, the employer can fire you in the event of “repeated failure by the employee to fulfill his job duties without good reason, if he has a disciplinary sanction” (Labor Code Article 81, Part 1, Clause 5). To understand the meaning of this article, it is necessary to clarify such concepts as “disciplinary action”, “good reasons”, “job duties” and their “failure to fulfill”.

Let us remind you that when applying for a job (see section “Employment contract”), you had to sign an employment contract and other documents (internal rules, job descriptions, etc.), which list your job responsibilities. These documents certify that

a) there is a certain rule;

b) you are familiar with it.

The employer only needs to prove in writing that:

c) you violated it - and disciplinary action can be imposed on you. If, for example, a job description exists, but you did not read it and did not sign on it, then there is nothing to punish you for. Moreover, there is nothing to punish you for if such instructions do not exist at all.

A disciplinary sanction is a punishment that is imposed on an employee for “the failure or improper performance by the employee, through his fault, of the labor duties assigned to him” (Labor Code Article 192). The following disciplinary penalties exist:

a) remark;

b) reprimand;

c) dismissal “for appropriate reasons” (for example, for absenteeism).

That is, if you somehow violate your work duties, you should be reprimanded or reprimanded. In fact, there is no difference between them, and both can become grounds for dismissal if work duties are repeatedly violated.

It is important to remember the duration of the disciplinary action. The employee is considered subject to disciplinary action within a year (LC Article 194). That is, if he commits a second violation within a year, then he may be fired, but if later, not.

A typical mistake made by employers when imposing a disciplinary sanction is the absence of an explanatory note from the employee subjected to disciplinary action. After you have violated something, the employer must first demand a written explanation from you (LC Article 193). You must write it within 2 working days (that is, if you violated something on Friday, you can submit the explanatory note on Tuesday). In practice, employers require the employee to write an explanatory note immediately (“in half an hour”, “after lunch”, “in the evening!”, etc.). Such a demand is illegal! Say that you will write the document within 2 business days, as required by law. During this time, you can consult with a specialist or simply gather your thoughts and write an explanatory note that presents you in the most favorable light. You can even attach documents proving that you violated labor discipline for good reasons (for example, a doctor’s certificate).

If after 2 working days you have not provided an explanation, then the employer draws up a corresponding act (LC Article 193). In the absence of an explanatory note or an act confirming the employee’s refusal to provide one, the dismissal will be considered illegal.

Another mistake of the employer is violation of the deadlines for bringing to disciplinary liability. Penalty can be imposed within 1 month from the date of discovery of the offense (TC Art. 193).

The employer's order to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, a corresponding act is drawn up.

Attention! In this regard, the dates of reports on the employee’s misconduct, explanatory notes, orders for disciplinary action, time sheets and other documents are very important. Based on them, the court or labor inspectorate will be able to determine whether the deadlines established by law have been met.

In addition, a violation is considered such only if you committed it without good reason. Let's say you were unable to complete a task because you were injured. If you prove this - for example, bring a certificate from a doctor - then it is illegal to impose penalties on you. True, whether a reason is “good” is a relative concept. But if you have been subject to disciplinary action, you can appeal this decision.

When dismissing under the article, the employer must follow the following scheme: violation - demand for an explanatory note - explanatory note (within 2 days) - written reprimand or reprimand (within 1 month from the date of violation) - repeated violation (within a year from the date of the order for reprimand or remark) – dismissal.

Thus, you can be fired if

a) you violated your labor duties (which are recorded in the documents you signed);

b) the employer demanded an explanatory statement from you and no later than 1 month from the date of the violation issued an order for a reprimand or reprimand;

c) within a year you again violated your work duties.

All employees, when they get a job, sign an employment contract, which spells out a list of their job responsibilities. Also, employees are required to obey the internal regulations of the organization, observe the work schedule and follow the job description. Improper performance of official duties leads to dismissal, and in some cases employers fire negligent employees precisely under this article.

What the law says

Let's take a closer look at the violations that may result in dismissal:

1. The absence of an employee from his workplace, which is not supported by any valid reasons. Repeated delays are also taken into account.
2. The employee’s reluctance to fulfill his labor obligations when labor standards or conditions change internal regulations.
3. Recurring violations in labor activity or operating mode. If a violation is detected once, a disciplinary sanction is imposed on the employee.

Who determines that an employee is not coping?

Failure to perform or improper performance of duties is when an employee has certain work obligations, and he is quite capable of handling them on his own, but does not do so for unknown reasons.

Anyone can identify this fact: from a manager to an ordinary client who was not served by an employee. If the non-compliance is identified by the head of the department, then he must record this event in a memo to senior management. If it was a customer, then he can file a complaint and also forward it to management. Such a document is the basis for checking an employee for improper performance of official duties.

The complaint itself is not grounds for bringing a person to disciplinary liability, but if during the inspection the facts stated in it are confirmed, this may serve as the beginning of the dismissal process.

There are cases when an employee’s responsibilities include performing various tasks. In order to protect themselves from possible misunderstandings, management should set out such assignments in writing and allow them to be read under signature. In the case where a task is ignored, this also needs to be recorded.

The legislation does not establish a list of persons who can detect improper performance of work. As stated earlier, it could be anyone. It is important that all information contained in the note is truthful.

A sample for an employee is presented below:

And before punishing an employee, you should find out the reason for this behavior. It may turn out that he simply does not know how to do what is required of him. But he cannot and does not want to be able to - these are two different concepts. And this must also be taken into account.

It is better to say that the employee cannot cope with these responsibilities if he really does not have the necessary skills or abilities that are needed for a successful outcome of the case.

By law, an employer is not required to train its employees, but practice shows that many applicants need it. Therefore, before demanding anything from a new employee, it is better to provide him with an unpaid internship with a more experienced employee.

Registration procedure

If improper performance of official duties has been proven, then management can proceed to the dismissal process. This procedure occurs in several stages:

1. Acknowledgment of facts. Any task that an employee must perform must be reflected in writing and given to him for signature. If this instruction is not fulfilled, this event is recorded in a special act or in a report (an example of a report is presented below).

2. Conducting an inspection upon non-compliance. At this stage, all information that proves improper fulfillment of obligations must be collected.

3. Obtaining explanations from the employee. This stage is considered mandatory. If an employee did not complete the assigned task and did not write an explanatory note about this, this does not mean that the process leading to punishment should be stopped. An explanatory note can both serve as a basis for holding a person accountable and prove his innocence, in other words, confirm that the failure to comply did not occur on purpose. It is important to know that if the manager assigned a task that is not part of the employee’s job responsibilities, and he did not complete it, this is not grounds for disciplinary punishment.

If an explanatory note is provided, then:

• the stated facts must be studied and verified, and a conclusion must be made about the validity of the information provided;
• the presence and degree of guilt of the employee is revealed;
• it will be found out why the non-fulfillment occurred;
• the employee’s attitude towards work before the incident is revealed.

When the violation does not entail serious consequences for the company, the employer may limit itself to a remark or reprimand. More serious misconduct must result in the termination of the working relationship with the employee.

4. Issuance of an order. An order is issued when a disciplinary sanction is imposed. It must reflect the facts about the presence of previous comments or reprimands, acts that reflect unfulfilled duties, as well as a description of the violations (place, time period, circumstances and documents confirming this).

The submitted documents are the grounds for termination of the employment contract at the initiative of the employer.

Deadlines

In order to submit an explanatory note to management, the employee is given two days from the moment he has read the request for this document. If punishment is inevitable, then the employer must carry it out within a month from the moment when improper performance of official duties is discovered. This period may be extended if the employee was on sick leave.

Disciplinary sanctions are not applied if more than six months have passed since the violation.

In case of violations that are revealed by audits or audits, the employee must be punished within 2 years from the date of their discovery.

According to legislative norms, there are categories of employees who cannot be subject to disciplinary action in any case. These include:

• pregnant women;
• an employee who is on sick leave or on vacation.

Dismissal. Payments

If the employer has not violated paragraphs of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, and the employee’s failure to fulfill his labor obligations has been adequately proven, a dismissal order can be issued. This document must contain all the necessary information to prove the fact of guilt.

The employee himself must be familiar with this order. If he did not want to do this, it is necessary to draw up an act recording this circumstance. And in the dismissal order, indicate all the grounds for termination of the employment contract at the initiative of the employer and the relevant documents confirming the employee’s guilt.

As for compensation payments, dismissal due to the circumstances described above does not provide for the payment of any special benefits. The employee is entitled only wage and vacation pay (if vacation is earned and not taken off).

Recording in labor

Entries in the work book and personal file must be made on the basis of the order. Personnel workers are referred when registering at the station. 81 Labor Code of the Russian Federation.

Employer's liability

If an employer applies such a type of punishment as a penalty for failure to fulfill official duties, then this must be approached with all seriousness. If there are the slightest shortcomings and there is an opportunity to challenge the employer’s decision in court, the latter may be subject to penalties.

When leaving, you need to check:

• whether the employee has any pending disciplinary sanctions;
• correct execution of all penalties (it is necessary to attach a sample memo to the employee);
• availability of the employee’s signature confirming familiarization with job responsibilities and other documents that are directly related to his work activity;
• the correctness of the entire process of bringing an employee to disciplinary liability.

If the employer made mistakes and the result of the dismissal was challenged in court, he will be held administratively liable. In addition, he will be obliged to reinstate the employee and pay him compensation.

By the way, managers are also subject to responsibility as prescribed in Art. 5.27 Code of Administrative Offenses of the Russian Federation. In this case, any administrative punishment is applied only by government agencies.

Consequences for the employee

As such, the legal consequences of dismissal under Art. The citizen does not have 81. But the entry corresponding to this article will not have a very good effect on a person’s status when he wants to triple for another job.

Dismissal for improper performance of official duties is not a reason to end your working career, but you still don’t need to make such entries on your employment form.

Arbitrage practice

Judicial practice shows that the fact of dismissal can be challenged:

1. If the order was completed incorrectly. The specific action that led to the violation was not indicated (an example of the report was given earlier).
2. If the offense does not correspond to the severity of the punishment.
3. When the violation occurred for the first time.
4. During the process of identifying the violation, no explanation was required from the employee.
5. The deadlines have been exceeded relative to those established by law.

Dismissal under the article for failure to fulfill official duties is provided for in paragraph 5 of Art. 81 Labor Code of the Russian Federation. It is possible to dismiss an employee on this basis if he repeatedly ignores his duties and already has a disciplinary sanction on this basis.

When hiring a new employee, the employer must familiarize him with his immediate responsibilities. General responsibilities must be specified in the employment contract. A more complete scope of them is listed in the job description.

The employee must familiarize himself with this document against signature. This is stated in paragraph 3 of Art. 68 Labor Code of the Russian Federation. This must be done before signing the employment contract. Otherwise, the employer will not be able to apply disciplinary action to him, and subsequently dismiss the employee for failure to fulfill official duties.

In addition to the job description, the employee must familiarize himself with the internal regulations and other documents that are relevant to his new job.

Failure to fulfill one's job duties is a violation of labor discipline. It is possible to dismiss an employee on this basis only if two factors are present:

• if the non-compliance has already occurred and the employee is subject to disciplinary action in any form on this basis;
• if the employee did not perform his direct labor duties without a good reason.

In the case when an employee violates labor discipline under this clause for the first time, the employer has the right to apply any form of disciplinary action to him, except dismissal. This is stated in the Resolution of the Plenum of the Supreme Court dated March 17, 2004 No. 2.

The disciplinary sanction should not be withdrawn or extinguished; only then the employer can dismiss the employee if the violation occurs again. Otherwise, he must punish him again.

The Labor Code of the Russian Federation does not indicate which reasons are valid. This must be determined by the employer himself. But when dismissing an employee, he must justify his opinion.

Since dismissal for dishonest performance of duties is a dismissal at the initiative of the employer, it must be properly formalized.

The procedure for dismissal on this basis is as follows:

• Collection of documents. The employer must prove that there was a repeated disciplinary offense.
• It is necessary to check the job description for the exact inclusion of duties that the employee does not perform.
• It is necessary to check whether the violator belongs to the category of workers who are prohibited from being dismissed at the initiative of the employer. For example, pregnant women or women who have children under 3 years of age. Full list specified in Art. 261 Labor Code of the Russian Federation.
• It is necessary to check the validity period of the previous disciplinary sanction and the period of imposition of the new one. In Art. 193 of the Labor Code of the Russian Federation states that the employer has the right to impose a disciplinary sanction on the employee within a month after the moment of detection.
• It is necessary to require a written explanation from the employee for his violation;
• It is necessary to take into account all the circumstances of the commission of a new offense and balance them with the punishment applied;
• Check for a valid reason;
• Issue a dismissal order. The employee must read the order and sign it;
• The employer must then register the order;

On the day of dismissal, it is necessary to make a full settlement with the employee and issue him a work book, in which a record of dismissal will be made and the basis will be indicated, as well as the norm of the article of the Labor Code of the Russian Federation.

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Dismissal under an article for failure to fulfill official duties - step-by-step instructions

Dismissing an employee under an article for failure to fulfill official duties is a complex procedure with a lot of nuances. Since the initiator of the dismissal procedure in a particular case is the employer, he must strictly comply with the conditions established by law.

Dear readers! Our articles talk about typical solutions legal issues, but each case is unique.

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Basic provisions

Grounds for rupture labor relations between an employee and an employer on the initiative of the employer in connection with the employee’s failure to perform official functions is article number 81 of the Labor Code. in particular:

• Part 1, paragraph 5 - repeated failure by a subordinate to fulfill the labor duties assigned to him if the person has an outstanding balance this moment collections;
• Part 1, point 6 - a one-time, but gross violation of duties.

The main list of functions assigned to a subordinate is established by article of the Labor Code number 21, and the detailed and full list must be specified in instructions, orders and, of course, employment contract.

Read our article about what an employment contract is.

At the same time, the employee becomes familiar with the range of cases assigned to him, specified in all regulations related to his activities, which is regulated article number 68 of the Labor Code. and signs with his own hand.

Accordingly, if the employment contract does not specify the employee’s responsibilities, and the employer has not familiarized him with the instructions regulating the list of functions, bringing the subordinate to disciplinary liability and dismissing the person under the relevant Article 81 of the Labor Code will be quite problematic process.

Dismissal under paragraph 5 of Article 81 of the Labor Code is one of the measures of disciplinary liability; it is important for the employer to strictly follow the procedure for bringing it to justice.

It is important to remember, in accordance with Article 194 of the Labor Code, maximum term during which the disciplinary sanction is valid is one year.

After this time, it is extinguished and the employee, unless another similar measure is applied to him, is considered not to have a penalty.

In addition, the employer at will. at the request of the immediate management of the employee or the subordinate himself, he can remove the disciplinary sanction from the offender earlier, before the end of the year.

What reasons could there be?

If a subordinate again violated labor duties during the period of disciplinary action, then the employer has the right to dismiss him in accordance with the fifth paragraph of the first part of Article 81.

In order for the legality of dismissal not to be questioned, it is necessary to simultaneously comply with such conditions.

• The fact that an employee violated labor discipline must be proven.
• The employee must have an outstanding disciplinary sanction at the time of the repeated violation.

His absence will be interpreted by the court as non-compliance mandatory condition dismissal under the article, which will become the basis for invalidating the employer’s decision. Penalties, as stated in article number 192 of the Labor Code, include comments, reprimands and dismissals.

At the same time, the dismissal procedure can only be legally carried out during the period of collection. that is, before the expiration of a year from the moment it was imposed or in a shorter period if such a decision was made by the employer, in other cases it is considered that the employee was not held accountable.

In accordance with paragraph 6 of Article 81, an employer may dismiss an employee under article even if the subordinate has not previously committed any offenses. The grounds are such actions of the subordinate as:

1. absenteeism, that is, failure to show up for a shift for 4 or more hours from the moment it began;
2. the employee appeared at the workplace in a state of any type of intoxication;
3. disclosure of secrets, including personal data of another employee, that became known to him as a result of the performance of work duties;
4. committing embezzlement or theft established by a court verdict or decree;
5. identification of violations of labor protection requirements and rules, which could or have led to serious consequences.