Fired for loss of trust. Procedure for dismissal due to loss of trust under the law. Order on the appointment of a commission

Dismissal due to loss of confidence is one of the reasons for the termination of an employment contract between an employee and an employer (clause 7, part 1, article 81 of the Labor Code of the Russian Federation). What articles of the law govern dismissal for loss of confidence?

The legislative framework

The basic law in the matter of dismissal due to lack of confidence is paragraph seven of Article 81 of the Labor Code of the Russian Federation.

In addition to it, this process is regulated by several more legislative documents:

articles No. 34-35 of the Law "On employment of citizens of the Russian Federation" No. 1032-1;
article FZ No. 79;
Labor Code of the Russian Federation;
Federal Law No. 255;
Labor Code of the Russian Federation;

Resolution of the Plenum of the Supreme Court No. 2.

Dismissal due to loss of confidence: who exactly can be fired on this basis

Dismissal due to loss of confidence threatens only employees serving monetary or commodity values in cases where these employees commit guilty acts, as a result of which the employer has reason not to trust these employees anymore (clause 7, part 1, article 81 of the Labor Code of the Russian Federation).

Who can't be fired for lack of confidence

If the guilty actions were committed by an employee servicing monetary / material values, but at the same time she is pregnant, then the employer cannot dismiss her (Article 261 of the Labor Code of the Russian Federation).

In addition, due to a loss of confidence, it is impossible to dismiss an employee who is on sick leave or on vacation (Article 81 of the Labor Code of the Russian Federation). He can be fired after returning to work.

It is also prohibited to dismiss underage workers if there is no consent to these actions of the labor inspectorate and the commission for minors and the protection of their rights (Article 269 of the Labor Code of the Russian Federation).

What document confirms that the employee served cash / commodity values

Such a document may be an employment contract or an agreement on liability (Article 244 of the Labor Code of the Russian Federation).

What guilty actions of an employee can lead to a loss of trust on the part of the employer

Unfortunately, labor legislation does not explain what specific guilty actions of an employee can lead to the fact that the employer will lose confidence in him. But such actions, for example, include:

actions that resulted in the theft or loss of monetary and material assets, or a threat of theft/loss;
bribery.

It is worth noting that the employer has every reason to lose confidence in his employee, even if his guilty actions are not related to work (Article 81 of the Labor Code of the Russian Federation, paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

Dismissal due to loss of confidence: procedure

If the employee's guilty actions are directly related to the performance of his official duties, then dismissal due to loss of confidence is a disciplinary sanction (Article 192 of the Labor Code of the Russian Federation). And the Labor Code establishes a clear procedure for the application of disciplinary sanctions (Article 193 of the Labor Code of the Russian Federation).

Procedure for dismissal due to mistrust

As mentioned above, dismissal due to loss of confidence for misconduct committed in the performance of immediate official duties, the Labor Code refers to disciplinary sanctions (Article 192).

In this regard, the termination of labor relations on the basis under consideration must be carried out in the manner prescribed by Article 193 of the Labor Code of the Russian Federation. This means that the procedure for dismissal due to loss of confidence:

Detection and fixation of the guilty actions of the employee.
Conducting an official investigation.
Obtaining a written explanation from the employee (drawing up an act of refusal of explanations).
Act on the results (results, conclusions) of the official investigation.
Issuance of orders.
Dismissal.

Receive a memorandum on the fact of the violation with a link to the paragraph of the violated document

The memorandum can be submitted by the immediate supervisor of the offending employee (the head of his structural unit), the labor collective, the head of the personnel department or another person. The head of the organization must affix a resolution on the memorandum (inscription: Decision of the head. Signature. Explanation of the signature. Number).

Establish the fact of violation (non-fulfillment) of labor obligations

A labor obligation can be enshrined in an employment contract, job description, internal regulations and other regulatory documents describing the duties of an employee.

Issue an order to establish a commission to establish the causes of the violation

Familiarize interested persons with the order on the establishment of the commission

The order should be printed out and familiarized with it by the employees specified in the order against signature - at the bottom of the order they must sign and put the date of familiarization.

Receive an explanatory note from the employee who violated the labor duty

If the situation is of a conflict nature, it is necessary to issue a written notice of the need to give explanations and hand it to the employee against signature.

Deadline: two working days from the date of establishing the fact of violation of labor obligations.

Issue a statement of refusal to give explanations

Deadline: two days.

Define disciplinary action

For each violation, only one penalty can be applied, which is applied taking into account the gravity of the offense committed. In the event of a disproportionate penalty, the employer may be held liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

Term: no later than one month from the date of discovery of the misconduct and no later than six months from the date of its commission (and according to the results of an audit or inspection, no later than two years from the date of commission).

Issue an order to terminate the employment contract with the employee

Deadline: two days.

Familiarize yourself with the order of the employee

The order should be printed out and familiarized with the employee against signature - at the bottom of the order, the employee must sign and put the date of familiarization.

Deadline: three days.

Pay wages and due compensation on the basis of a note-calculation

Deadline: the date of termination of the employment contract.

Make a record of the termination of the contract in the work book

The entry is made in accordance with the order of dismissal according to the following model:

record number	the date			Information about hiring, transfer to another permanent job, qualification, dismissal (with indication of the reasons and reference to the article, paragraph of the law)	Name, date and number of the document on the basis of which the entry was made
record number	number	month	year
1	2			3	4
				Romashka Limited Liability Company (Romashka LLC)
12	31	08	2012	Appointed as CEO	Order No. 1k dated 31.08.2013
12	31	08	2012	Admitted to the branch of the city of Ufa for the position of branch director	Order No. 1k dated 31.08.2013
12	31	08	2012	Appointed as chief accountant	Order No. 1k dated 31.08.2013
12	31	08	2012	Hired as Legal Counsel in the Legal Department	Order No. 1k dated 31.08.2013
12	31	08	2012	Appointed as a teacher of Russian language and literature	Order No. 1k dated 31.08.2013
13	29	11	2013	The employment contract was terminated due to repeated non-fulfillment by the employee without good reason of labor duties, if he has a disciplinary sanction, paragraph 5 of the first part of Article 81 of the Labor Code of the Russian Federation	Order No. 21k of November 29, 2013
13	29	11	2013	The employment contract was terminated due to a single gross violation by the employee of labor duties - absenteeism, subparagraph "a" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation	Order No. 21k of November 29, 2013
13	29	11	2013	The employment contract was terminated due to a single gross violation by the employee of labor duties - the appearance of the employee at work in a state of intoxication, subparagraph "b" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation	Order No. 21k of November 29, 2013
13	29	11	2013	The employment contract was terminated due to a single gross violation by the employee of labor duties - the disclosure of a legally protected secret that became known to the employee in connection with the performance of his labor duties, subparagraph "c" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation	Order No. 21k of November 29, 2013
13	29	11	2013	The employment contract was terminated due to a single gross violation by the employee of labor duties - theft of someone else's property at the place of work, established by a court verdict that has entered into legal force, subparagraph "d" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation	Order No. 21k of November 29, 2013
13	29	11	2013	The employment contract was terminated due to a single gross violation by the employee of labor duties - a violation by the employee of labor protection requirements established by the labor protection commission, which entailed grave consequences (accident), subparagraph "d" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation	Order No. 21k of November 29, 2013
13	29	11	2013	The employment contract was terminated in connection with the commission of guilty actions by the employee directly serving monetary values, giving grounds for the loss of confidence in him by the employer, paragraph 7 of the first part of Article 81 of the Labor Code of the Russian Federation	Order No. 21k of November 29, 2013
13	29	11	2013	The employment contract was terminated due to the commission of an immoral offense incompatible with the continuation of work, paragraph 8 of the first part of Article 81 of the Labor Code of the Russian Federation	Order No. 21k of November 29, 2013
13	29	11	2013	The employment contract was terminated due to the adoption of an unreasonable decision by the head of the organization, which entailed a violation of the safety of the organization's property, paragraph 9 of the first part of Article 81 of the Labor Code of the Russian Federation	Order No. 21k of November 29, 2013
13	29	11	2013	The employment contract was terminated due to the adoption of an unreasonable decision by the head of the branch, which entailed a violation of the safety of the organization's property, paragraph 9 of the first part of Article 81 of the Labor Code of the Russian Federation	Order No. 21k of November 29, 2013
13	29	11	2013	The employment contract was terminated in connection with the adoption of an unreasonable decision by the chief accountant of the organization, which entailed a violation of the safety of the organization's property, clause 9 of the first part of Article 81 of the Labor Code of the Russian Federation	Order No. 21k of November 29, 2013
13	29	11	2013	The employment contract was terminated due to a single gross violation by the head of the organization of his labor duties, paragraph 10 of the first part of Article 81 of the Labor Code of the Russian Federation	Order No. 21k of November 29, 2013
13	29	11	2013	The employment contract was terminated due to a single gross violation by the head of the branch of his labor duties, paragraph 10 of the first part of Article 81 of the Labor Code of the Russian Federation	Order No. 21k of November 29, 2013
				HR manager "signature" A.A. Ivanova seal
				Employee "signature" B.B. Petrov

Make an entry in the employee's personal card in accordance with the entry made in the work book

Section 11 of the personal card is filled out according to the following model:

	Repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction, paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation
XI. Grounds for termination of the employment contract (dismissal)	Absenteeism, subparagraph "a" of paragraph 6 of the first part of Article 81 of the Labor Code of the Russian Federation
XI. Grounds for termination of the employment contract (dismissal)	The appearance of an employee at work in a state of intoxication, subparagraph "b" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation
XI. Grounds for termination of the employment contract (dismissal)	Disclosure of a secret protected by law, which became known to the employee in connection with the performance of his labor duties, subparagraph "c" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation
XI. Grounds for termination of the employment contract (dismissal)	The commission of theft of another's property at the place of work, established by a court verdict that has entered into legal force, subparagraph "d" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation
XI. Grounds for termination of the employment contract (dismissal)	Established by the commission on labor protection violation by the employee of the requirements of labor protection, which entailed grave consequences (accident), subparagraph "e" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation
XI. Grounds for termination of the employment contract (dismissal)	Commitment of guilty acts by an employee directly servicing monetary values, giving grounds for the loss of confidence in him by the employer, paragraph 7 of the first part of Article 81 of the Labor Code of the Russian Federation
XI. Grounds for termination of the employment contract (dismissal)	Committing an immoral offense incompatible with the continuation of work, paragraph 8 of Article 81 of the Labor Code of the Russian Federation
XI. Grounds for termination of the employment contract (dismissal)	The adoption of an unreasonable decision by the head of the organization, which entailed a violation of the safety of the property of the organization, paragraph 9 of the first part of Article 81 of the Labor Code of the Russian Federation
XI. Grounds for termination of the employment contract (dismissal)	Making an unreasonable decision by the head of the branch, which entailed a violation of the safety of the organization's property, paragraph 9 of the first part of Article 81 of the Labor Code of the Russian Federation
XI. Grounds for termination of the employment contract (dismissal)	The adoption of an unreasonable decision by the chief accountant of the organization, which entailed a violation of the safety of the organization's property, paragraph 9 of the first part of Article 81 of the Labor Code of the Russian Federation
XI. Grounds for termination of the employment contract (dismissal)	A single gross violation by the head of the organization of his labor duties, paragraph 10 of the first part of Article 81 of the Labor Code of the Russian Federation
XI. Grounds for termination of the employment contract (dismissal)	A single gross violation by the head of the branch of his labor duties, paragraph 10 of the first part of Article 81 of the Labor Code of the Russian Federation

Issue a work book

Result: an entry in the book of accounting for the movement of work books.

Deadline: day of dismissal.

Issue to the employee a certificate of the amount of earnings for the two calendar years preceding the year of termination of work, and other requested copies of documents related to work on the basis of the application

Deadline: three working days from the date of receipt (registration) of the employee's application.

Notify the bailiff-executor and the recoverer of the dismissal of the employee-debtor

It is necessary to notify in writing by registered mail or by courier with an attachment of a writ of execution on the basis of which deductions were made. At the same time, a copy of the notification with the marks of the bailiff - the executor and the recoverer or with postal receipts must be kept as evidence of the notification.

Deadline: three days.

Notify the military commissariat at the place of registration of the employee

Notification must be made in writing by registered mail. In this case, a copy of the notification with a postal receipt must be kept as evidence of the notification.

Deadline: Two weeks.

Dismissal due to loss of confidence: actions of the employer

To dismiss an employee on this basis, it is necessary to prove that the employee actually committed guilty acts, as a result of which he lost the trust of his employer. Accordingly, if the employer decides not to contact the police, he must conduct his own investigation.

To conduct such an investigation, a special commission is created, and the basis for its conduct can be, for example, a memo from the immediate superior of the offending employee.

Note that if during the investigation it is necessary to conduct an inventory (for example, to confirm the fact of a shortage / theft), then before conducting it, be sure to take a receipt from the employee stating that all the monetary and material values \u200b\u200bentrusted to him have been credited, and those that have left - written off.

Internal investigation: basis, documentation

The actions of an employee that caused damage or created a risk of damage to the material assets of the employer must be recorded in an official document: an inventory act, a memorandum (official) note from the immediate supervisor, an act on the identified shortage, etc. Such a document is the basis for starting an official investigation, the purpose of which is either to confirm the guilt of the employee, or to establish his innocence.

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

The commission is obliged, if necessary, to conduct an inventory within the established time limits, as well as to request and prepare documentation that will serve as confirmation of the employee's guilt. Any action taken in the course of an internal investigation must be recorded in the relevant acts, official or memorandums, certificates, protocols. In addition, the duty of the commission is to obtain an explanation from the employee himself.

Explanation or refusal to explain the employee

The requirement for an employee to provide an explanation of the fact of a misconduct is recommended to be drawn up as an official document for the organization and handed over to the employee under signature. In special cases, for example, if an employee refuses to sign an acknowledgment of receipt of a request, a statement of refusal should be drawn up. In this case, the requirement to the employee can not only be handed in personally, but also sent by mail, by registered mail with notification.

According to the general procedure provided for imposing a disciplinary sanction, the employee must be given two working days to provide explanations. If, after this period, no explanations are received, the corresponding act (on the failure to provide or on the refusal of the employee to give explanations) must be drawn up.

The results of the commission's work

The result of the work of the commission should be an act on the results of the investigation. The document must indicate:

End date of the investigation.

Information about the members of the commission.

Information about the employee involved in the internal investigation.

A statement of the circumstances that gave rise to the official investigation, taking into account the degree of guilt and the severity of the guilt.

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

Signatures of members of the commission.

If an employee committed an offense outside of work

In the event that the employer has lost confidence in the employee due to the latter's actions that are not directly related to the work, it is not necessary to investigate and take explanations from the employee.

But in order to, if necessary, confirm the validity of dismissal due to loss of confidence, get documents from which it will be clear why you no longer trust your employee (for example, a court decision to bring the employee to criminal liability).

Letter of dismissal for loss of trust

If, after considering the results of the investigation or other materials, the head of the organization / individual entrepreneur decides to dismiss the offending employee, then a dismissal order is issued (Article 84.1 of the Labor Code of the Russian Federation).

The employee must be familiarized with this order against signature within three working days from the date of its publication (Article 193 of the Labor Code of the Russian Federation). If the employee refuses to sign the order, the employer must draw up an appropriate act.

You can find a sample letter of dismissal for loss of confidence in our material.

A certain period of time is allotted for dismissal due to loss of confidence in the employer

So, to dismiss an employee in connection with the loss of confidence, the employer must:

not later than 1 month from the date of discovery of the offense. Moreover, the time of illness or the employee being on vacation is not included in this period;
no later than 6 months from the date of the offense. If the guilty actions are revealed during the inspection / audit - no later than two years from the date of these actions.

If the employee committed an offense that led to the loss of confidence on the part of the employer, not at the place of work or at work, but not in connection with the performance of his/her job duties, then this employee can be dismissed no later than one year from the day the employer learned about this offense (Article 81 of the Labor Code of the Russian Federation).

Dismissal due to loss of confidence: entry in the work book

When dismissing an employee, the employer must make an appropriate entry in the work book of this employee:

Record No. Date Information on hiring, transfer to another permanent job, qualifications, dismissal (with reasons and a reference to the article, paragraph of the law) Name, date and number of the document on the basis of which the entry was made day month year

Recall that from November 27, 2016, the dismissal record in the work book is certified by the employer's seal only if it is available (Order of the Ministry of Labor of October 31, 2016 No. 589n, Order of the Ministry of Labor of October 31, 2016 No. 588n).

Having made an entry in the work book, do not forget to make a similar entry in the employee's personal card (approved by Resolution of the State Statistics Committee of the Russian Federation of 01/05/2004 N 1T-2, form).

The employee must sign the work book and his personal card.

Dismissal payments for loss of trust

An employee who is dismissed due to loss of confidence is entitled to the same payments as any other employee who leaves, i.e. he needs to pay a salary, compensation for unused vacation, etc. (Article 140 of the Labor Code of the Russian Federation).

At the same time, if the employee caused material damage to the employer and he accepted the order to compensate for the damage no later than a month from the moment the amount was established, then the amount of damage (if it does not exceed the employee's average monthly earnings) can be withheld from dismissal payments (Article 248 of the Labor Code of the Russian Federation).

Consequences for the employee

When an employee commits a particular violation, the employer has the right to decide what penalty to assign to the offending specialist.

The lightest form is a reprimand, which is usually given for minor infractions.

For more serious "misses" or repeated mistakes, the employer may impose a fine on the employee as compensation for harm.

But the most severe punishment, of course, is the loss of trust and subsequent dismissal. Typically, such a preventive measure is used for serious violations or for repeated repetition of minor errors.

Dismissal entails a number of negative consequences:

seniority is interrupted, which means that in the future payment during disability will be lower;
sometimes, upon dismissal, a ban is imposed on an employee, due to which he cannot hold one or another position for a certain time or for life;
upon dismissal due to loss of confidence, a citizen is not paid unemployment benefits for three months, later the money begins to flow, but the rate is still reduced.

In addition, an entry in the work book can interfere with getting a new job, since few employers want to accept a person who is difficult to rely on in their team.

What threatens the employer in case of illegal dismissal due to loss of confidence

If the employer dismisses on this basis, for example, an employee who does not serve monetary / commodity values, and this employee goes to court with a claim for illegal dismissal, then most likely the court will oblige the employer to reinstate this employee. In addition, the employer will have to (Article 237, Labor Code of the Russian Federation):

pay the employee the time of forced absenteeism according to the average earnings;
compensate for the moral damage caused to this employee.

By the way, if an employee complains about illegal dismissal to the labor inspectorate, then the employer faces a fine in the amount of (CAO RF Part 1, Article 5.27):

from 30,000 to 50,000 rubles. - for the organization;
from 1000 to 5000 rubles. - for officials of organizations. A fine in the same amount is provided for an individual entrepreneur.

Arbitrage practice

Lawsuits over dismissals for lack of confidence are quite varied. Offended workers are trying to restore their rights and good name. Business owners try to protect their property from unscrupulous employees. The final results of disputes depend on the completeness and correctness of the evidence presented to the judicial authorities by both parties. Issues that are subject to study and analysis in court:

assignment of the employee to the category of persons in respect of which the relevant article of the law can be applied, which establishes the grounds for dismissal due to loss of confidence;
the fact of committing a disciplinary offense, an administrative or criminal offense related to theft, bribery and other mercenary offenses, giving the employer a reason to lose confidence in the employee;
compliance with the procedure for dismissal of an employee by the employer.

Thus, the appeal ruling of the Judicial Collegium for Civil Cases of the Khanty-Mansiysk Autonomous Okrug dated 10/02/2012 in case No. “KRS “Eurasia” on dismissal, the legality of the contested decision was confirmed on the grounds that the employee was not a financially responsible person.

As follows from the case file and established by the court of first instance, the parties were in an employment relationship, the plaintiff worked at Eurasia KRS LLC as the head of the underground well repair shop, and an agreement was concluded between the parties on full individual liability. In fact, the plaintiff's dismissal was based on the fact that the plaintiff had signed fictitious waybills.

When making a decision, the court proceeded from the fact that the plaintiff does not apply to persons directly serving monetary or commodity values, an agreement on full material liability in itself will not be a confirmation that the employee directly services material values, it is necessary that in the scope of labor duties employee, fixed in the employment contract or in the job description, included work with inventory items.

Signing of waybills does not testify to the direct service by the plaintiff of monetary or commodity values. Thus, the plaintiff, by virtue of his position, does not belong to the category of persons directly serving monetary and commodity values, and therefore could not be dismissed on the basis of paragraph 7 of the first part of Article 81 of the Labor Code of the Russian Federation.

As you can see, the law is on the side of the workers. However, there are often dishonest employees. From my experience in trade, I know that collective liability is shared by all members. One person can engage in theft, and everyone will compensate for the losses. That is why management should carefully check and identify the culprit. The rest will not be so offended by the unjust punishment. Well, if you can’t do it with your own resources, it will be useful to contact the prosecutor’s office. They will quickly find and prosecute the culprit.

One of the reasons for termination at the initiative of the employer of labor relations may be dismissal due to loss of trust. This norm is enshrined in paragraph 7 of Part 1 of Art. 81 TC, but they use it infrequently. To terminate the contract with such wording, strict adherence to a special dismissal procedure and a number of certain conditions is necessary.

If the dismissal procedure is not followed, the court may conclude that the employment contract was illegally terminated and reinstate the employee at work, and the employer may be required to pay compensation to the reinstated employee for the forced downtime.

What Circumstances Can Lead to Loss of Trust

The Labor Code does not contain a clear list of misconduct that may be the reason for the loss of trust. The employer has the right to evaluate the actions of the employee and apply the appropriate penalty. In order for an employer to legally apply the article of the Labor Code of the Russian Federation “Dismissal for loss of confidence”, 3 conditions must be met:

the employee has committed any misconduct;
the employee's labor activity is connected with material values or money;
the actions committed by the employee caused the employer to lose confidence (including inaction);

Termination of an employment contract on the basis of loss of trust has negative consequences for employees.
These include: 1) interruption of seniority - affects temporary disability payments 2) non-payment of unemployment benefits for the first three months, in the future the amount will be reduced 3) lack of permission for a certain position (temporary or for life).

An important point in this situation is that the misconduct of the employee does not necessarily have to cause any damage to the employer. If damage is caused, the right to compensate for it and bring the employee responsible for this to material liability arises automatically. In this case, the repeated actions of this employee may further lead to material losses, therefore, this reason for dismissal of an employee allows the employer to prevent possible damage and protect the monetary and material values of the organization.

In what cases is dismissal possible?

Dismissal under the article "Loss of confidence" for a misconduct committed by an employee during working hours is, in accordance with part 1 of article 192 of the Labor Code, one of the ways of disciplinary action. In addition to him, the head has the right to use other penalties provided for in this article, such as a remark or reprimand. For certain categories of employees, various regulations provide for other types of penalties, for example, the transfer of an employee to another position or job. What kind of penalty to apply in a particular case, the head decides on his own.

Dismissal due to loss of confidence is allowed for an employee who uses material or monetary values in his work. As a general rule, it is necessary to draw up an agreement on personal liability with such an employee. The list of positions of employees with whom such contracts should be drawn up is given in the Decree of the Ministry of Labor No. 85, adopted on December 31, 2002. It is also allowed to dismiss an employee under paragraph 7 of Part 1 of Art. 81 of the Labor Code and in a situation where this offense is not related to direct work.

Important! If the misconduct of an employee, which can lead to a loss of confidence, is not related to his work activity, then dismissal for this reason will not be considered a disciplinary sanction.

Judicial practice shows that dismissal for loss of confidence is possible in cases where the liability agreement is not signed. This happens if the obligations for working with cash or commodity values are fixed in an employment contract with him, or he is authorized to sign any documents relating to material values \u200b\u200band finances.

Special grounds exist for the dismissal of a civil servant for loss of confidence. Various types of official penalties can also be applied to this category of employees when they commit disciplinary offenses. But in Art. 59.2 of Law 79-FZ "On the State Civil Service" lists specific reasons for dismissal on such a basis, namely:

failure to provide information about personal income and income of close relatives;
doing business;
opening accounts in foreign banks by the employee himself and his close relatives;
participation in the management of a commercial organization, except as permitted by law.

It is not allowed to dismiss pregnant women on such a basis, during the next vacation or illness of an employee.

About the termination of labor relations in connection with the loss of trust is described in the video

Dismissal procedure

The procedure for dismissal for loss of confidence consists of several stages. Only strict observance of the entire sequence of these stages can guarantee the legality of termination of the employment contract under paragraph 7 of Part 1 of Art. 81 of the Labor Code and will allow the organization to protect its rights in the event of litigation on the legality of such dismissal.

Some facts

The main points considered by the established commission are: 1) determination of the circumstances under which the damage was caused, indicating the place, time and method of causing it 2) if necessary, examine those places that suffered damage 3) identify the cost of damage at a given moment 4) identify the persons who caused the damage 5) collect evidence 6) establish the degree of guilt of these persons and determine the amount of the penalty 7) determine the causes and conditions that caused the damage.

If actions of an employee are found that may cause a loss of trust, they should be documented. There is no standard form for such a document; in practice, such actions of an employee are reflected in a memorandum. The employee who discovered the result of such actions or witnessed them, indicates in the report his data, the date and time of the event and describes all the circumstances. In the event of a shortage of material assets or money during the inventory, an act is drawn up.
Based on these documents, an internal investigation is organized to determine the guilty person. For this purpose, a special commission is created from disinterested competent employees in the amount of at least 3 people. The commission conducts an investigation even if no material damage has been caused, but the relevant actions of the employee could have caused such consequences. In addition to his own official investigation, the head of the organization has the right to apply to law enforcement agencies. However, establishing the guilt of the employee by the employer itself is sufficient for dismissal due to loss of confidence.
The conclusions made by the commission and the information received are recorded in the relevant act. One of the obligatory points of this document is the conclusion that for the actions taken, the employee loses the trust of the employer. The employee must be familiarized with the act against signature, if he refuses to sign, they draw up an act in which the members of the commission sign.
Before applying a penalty to an employee, an explanation should be obtained from him in writing in accordance with Art. 193 of the Labor Code of the Russian Federation. If the employee does not agree to write an explanation, it is also better to submit a request for its provision in writing. If the employee does not provide an explanation within 2 working days, the employer draws up an act about this. If there is a written request for an explanation and an act, an employee can be dismissed without an explanatory note.
Further termination of the employment contract is carried out according to the general rules: a termination order is created, a note-calculation is prepared, a corresponding entry is made on the employee’s personal card and in the work book. All documents necessary for dismissal are issued to the employee in the general manner.
Thus, in order to avoid litigation, it is necessary to strictly follow the procedure for dismissal for loss of confidence.

Last modified: January 2020

Uncleanliness at hand, internal dishonesty, an undisguised desire to take what is bad and annoyance at the lack of opportunities provided by the organization or the state are frequent companions of job seekers in the labor market. A person caught by the hand in such a misconduct falls forever in the eyes of the employer, who can not always call a spade a spade and fire him due to a loss of confidence. Speculating on trade secrets, leaking forbidden information to competitors, bribe-takers and a relatively young category called "kakackers" in most cases go unpunished.

Dismissal for loss of trust

The personal characteristics underlying the termination of contractual relations, the article loss of trust in the Labor Code, limits the application to employees of commercial services in terms of working directly with material resources.

Dismissal for loss of confidence on the basis of the wording of paragraph 7 of Article 81 of the Labor Code of the Russian Federation will be allowed upon proof of the guilt of an employee engaged in servicing financial flows or inventory in real terms, and not in virtual leadership.

For example, if a shortage of funds is found at the cash desk, the cashier responsible for control can be fired for the loss of confidence, the storekeeper for valuables in the warehouse, and the senior seller for goods on the trading floor. If the person is not entrusted with goods and materials, then it is impossible to hold the employee liable or punished for improper conditions for ensuring storage and transfer to third parties.

Dismissal due to loss of confidence is possible in relation to an employee who has signed an agreement on full liability of an individual nature regarding the entrusted liquid assets of the organization, which serves as a category.

The employer must prove the guilt of the employee, otherwise, in the presence of shortages, embezzlement and theft, dismissal by mistrust article of the Labor Code of the Russian Federation does not allow and does not give a clear list of misconduct, providing an opportunity to make a decision and bear responsibility for the enterprise.

Article 59.2 of Law No. 79-FZ, as amended on December 11, 2018, prescribes in detail how to remove from work and dismiss a civil servant due to loss of confidence, highlighting the following grounds:

inaction regarding the adoption of measures to prevent and resolve conflicts of interest, including the failure to warn the immediate superior in case of knowledge of the conflict and interest in the possibility of obtaining personal gain;
failure to provide information about income received, expenses incurred and obligations, both one's own and relatives classified as the first degree of kinship, or submission of knowingly false information for the purpose of deception;
becoming a member of the owners and founders of a commercial structure and receiving income accrued based on the results of financial and economic activities;
registration as a business entity;
entry into the management bodies of foreign companies and their operating structural divisions in the country;
opening accounts in foreign banks directly by employees and relatives of the first degree of kinship, including minor children.

Dismissal under Article 51 of Law No. 53-FZ, as amended on February 6, 2019, prescribes the grounds for military personnel, exactly duplicating the postulates for civil servants.

Procedure

The procedure provided for terminating an employment contract with a representative of a commercial structure includes a certain algorithm of actions on the part of the employer. Dismissal of an employee on mistrust must take place in compliance with the following order:

Conducting an official investigation. To study the circumstances of the case, the head needs to issue an order to create a special commission of representatives of at least three competent and objective employees. If necessary, representatives of third-party institutions are involved.

The powers of the commission include not only stating the fact of a misconduct, but also studying the circumstances under which the employee's actions took place and minimizing the risks of such situations in the future.

The results of the commission's activities are documented in a separate act detailing the misconduct and proving in concrete terms what the loss of trust means using the facts and explanations of the guilty person. If the employee refuses to testify, an appropriate act is drawn up. The employee is given two working days to draw up an explanatory note.

Drawing up a notice and dismissal from a position due to loss of confidence under article 81 of the Labor Code of the Russian Federation, paragraph 7. The document is created in writing and is given against the signature of the employee on familiarization. In the event of an unmotivated refusal, an appropriate act is drawn up.

The article on the loss of confidence does not imply the obligatory detention. The employer can part with the employee immediately after the proof of guilt, having collected the necessary supporting documents.

Order and entry in the work book. The loss of confidence in the employee and the subsequent process of breaking off relations does not require coordination with the trade union organization of the enterprise or other active elected body that protects the interests of employees.

An employee can be dismissed “under the article” within 14 working days given to the employer to collect documents. Often a citizen, in order to avoid a negative record, submits a counter-application about the arisen “own desire”. In case of missing a two-week period, the employer is forced to follow suit, since the employee can file a claim with the court.

Categories of workers

The Labor Code makes it possible to “diagnose” the loss of confidence in relation to persons directly servicing financial flows and property assets on the balance sheet of an enterprise. With citizens it is necessary to conclude individual agreements on full liability. A detailed list of positions and types of work performed was approved by the Decree of the Ministry of Labor No. 85 of December 31, 2002:

acting cashiers and controllers for the movement of financial flows;
carrying out an expert assessment on the authenticity of banknotes, the issue of securities, the issuance and destruction of bank credit and payroll cards;
citizens performing collection and transport functions when transporting funds;
administrators, sellers and storekeepers of wholesale and retail trade, public catering and consumer services;
managers and responsible for the storage and transfer of inventory items to third parties.

The contract must be of a purely individual nature. In the case of an agreement on collective liability, it is not allowed to qualify the loss of trust in relation to the whole team, it can only be held accountable. It is also impossible to express distrust towards an employee temporarily replacing a financially responsible person.

The presence of a drawn up agreement is not the basis for making a decision to terminate business relations. Judicial practice, in the absence of contracts with the MOL, summarizes how to dismiss an employee for lack of confidence, only by the presence of information in the employment contract and the authority to sign on the accompanying documents. To break off relations, it is important to prove to the employer the repetition and malicious intent in the actions of the employee.

Can this article apply to all employees without exception? It is forbidden even to steal repeatedly. If an employee is temporarily absent from the workplace due to being on vacation or on sick leave, it is necessary to wait until they return to work to take action.

Court decisions are based on the study of:

categories of persons who committed embezzlement, theft or abuse of official position;
analysis of the guilty actions that prompted the commission of a misdemeanor;
compliance with the regulations of the procedure carried out step by step.

The absence of an evidence base or procedure gives grounds for the courts to decide in favor of the employee, considering the breakup of relations illegal with subsequent reinstatement and compensation for forced absenteeism during the proceedings and compensation for moral damage.

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Only the employee who is financially responsible, works with money or goods can lose trust. If he commits actions that harm the employer (and this can be measured materially), for example, theft, then he may lose confidence. The same applies to bribery or other manifestations of self-interest.
The trust of the employer to the employee is manifested in the assignment (job description) for the citizen of the rights and obligations in relation to values. An agreement on full liability is an act of trust.

Important! To dismiss an employee under the article, it is not at all necessary to have such an agreement.

The Labor Code of Russia allows the injured person to independently qualify the case, namely, to assess whether this or that act was the basis for the loss of confidence. An employee can be fired, or they can simply draw up a reprimand, limit themselves to a fine, or do without punishment at all.

What is the basis for the loss of trust:

If the violations were committed by an employee not at the main place of employment, he can still be fired for lack of confidence. In this case, the employer must have a copy of the court decision that established the guilt.

Dismissal due to loss of confidence may be subject to municipal, military and government employees. You can read more about their dismissal.

Who can't be kicked out of a job out of distrust?

Which employee cannot be fired out of distrust? It is forbidden to dismiss under such article:

a pregnant employee (Article 261 of the Labor Code of the Russian Federation);
a minor (Article 269 of the Labor Code of the Russian Federation);
an employee who is on vacation or is sick (Article 81 of the Labor Code of the Russian Federation) - this can be done upon his return.

How should an employer act?

How and who can be fired for theft, embezzlement, fraud or other illegal acts based on loss of confidence laws?

Reference. The Labor Code or other legislation does not provide for a mandatory document (protocol, etc.) that should record violations.

On the fact of theft, embezzlement, fraud or other illegal acts for which there are claims against the employee, the employer needs to follow the following step-by-step procedure:

Write a report. In it, indicate the data of the employee who revealed the illegal actions, time, place, date, describe all the circumstances of the case. If information about violations was received from law enforcement agencies or other third parties, it is not necessary to draw up a report.
If the inventory showed a shortage or other violations, then an act should be drawn up.

Having these documents, the employer has the right (and is obliged) to conduct an internal investigation, which reveals the culprit.

This procedure requires the collection of a commission (by a special order of the employer). Its members should not be interested in the final result, they are chosen from among competent persons (at least three people).

It is this body that determines under what circumstances the violation occurred, where, how it determines what and to what extent the damage was caused (as well as its cost), identifies the perpetrators, and collects evidence.

The commission records all the information received- acts, reports are drawn up, attached to the conclusion of the reference body, etc.

Based on the results of their work, the members of the commission draw up and confirm with their signatures an act. It should cover the following points:

what actions of the employee led to the loss of trust;
all the circumstances of the incident are described in detail;
what is the degree of fault of the employee;
what punishment should be resorted to in relation to him.

The results of the inventory (if it took place to determine the degree of damage) must also be attached to the act. Conducting an internal investigation does not mean that the employer should not seek help from law enforcement agencies, but the results and conclusions of the commissions will be enough for dismissal due to loss of confidence.

Important! It will not be possible to fire a person if his misconduct is not directly related to his official duties.

Guilt must be proven(testimony of witnesses, video from surveillance cameras and other facts of the commission of a crime are suitable for this).

After investigation

The commission in writing asks the employee for an explanation of what happened. Within two days, the employee draws up an explanatory note. If he does not do this, then it is necessary to draw up an appropriate act (indicate in it that the employee did not give explanations at the right time and what motivated this refusal), certify it with the signatures of the compiler and two or more witnesses.

In the presence of such an act, the employer has the right to impose a disciplinary sanction even without explanation from the employee (under parts 1 and 2 of article 193 of the Labor Code of the Russian Federation).

Agreeing with the conclusions of the commission, the employer creates a dismissal order for loss of confidence. The order specifies:

the date from which the employment contract is terminated;
Name and position of the dismissed employee;
grounds for termination of labor relations (commitment by an employee directly servicing commodity values of guilty actions that give rise to a loss of confidence in him by the employer, clause 7 of part one of Article 81 of the Labor Code of the Russian Federation);
description of the documents proving the guilt of the employee, such as: memoranda and explanatory notes; inventory list; statement; medical report, etc.

The order is certified by the head. It can be issued in the T-8 form or on the official letterhead of the organization. The employee is introduced to the document within three days (under signature). If the employee refuses to sign the order, an act is drawn up, but this will not interfere with dismissal.

Fixation of violation and calculation

An entry on dismissal due to loss of confidence is made in the work book and personal card of the employee with the following wording: “The employment relationship was terminated on the basis of violations by the materially responsible employee, giving grounds for the loss of confidence, clause 7, part 1, article 81 of the Labor Code of the Russian Federation.”

The order number and date are also indicated. The work book is issued on the day of dismissal. According to the current legislation, the organization is obliged to accrue wages and compensation for not taken vacation (if vacation pay was taken in advance, they are deducted from payment), bonuses.

This is what the entry in the work book looks like upon dismissal due to loss of confidence:

There is no severance pay in this case. If proven damage has been caused to the employer, then the latter has the right to deduct the amount (if it does not exceed the average monthly salary) from the dismissal payments.

Reference. If the damage is greater than the employee's salary, then the procedure, procedure and conditions for compensation are decided through the courts.

A dismissed employee has the right to file a complaint with the labor inspectorate, the prosecutor's office or go to court if the due payments have not been made.

If the employee is innocent

The employee has the right to prove his innocence in court. If the law is on his side, then the employer (even if the dismissal procedure was formalized and carried out in accordance with all the rules) will be obliged to reinstate the employee.

It is possible to agree with the management on dismissal "of one's own free will" in the following cases: if the guilt is nevertheless proven, and the person who committed the illegal actions agrees with this, of course, compensating for the losses. Such a peaceful agreement does not go beyond the law, and it will allow the specialist to keep his work record and reputation in order.

Terms of termination of the contract

Having discovered theft, embezzlement or other violation, the employer can dismiss the employee on any day. If a person has received a notification of the results of an internal investigation and has read the dismissal order, he may not work for the prescribed period of 2 weeks.

Attention! If the dismissed employee was not given the necessary documents after the date set in the order, was not paid a salary or other funds, and he continues to work, then the contract with him is automatically extended.

The responsibility of the employer is not only to receive compensation, but also to issue all the required documents and money. Sometimes, by a court decision, it is possible to pay moral damages to an illegally dismissed employee.

What are the consequences?

Upon the fact of distrust, an employee may face a written reprimand, recovery of compensation and dismissal. The most difficult thing for an employee is precisely the termination of an employment relationship.

In this case, the length of service is interrupted, and this, in turn, affects the amount of payment for temporary disability: for three months, unemployment benefits are not paid, then its size decreases. Upon loss of trust, an employee may be banned from holding a certain position both temporary and permanent.

An entry in the work book about such a dismissal can prevent a subsequent job.

Even if the dismissal due to loss of confidence occurred by mutual agreement - the damage was compensated, all the necessary documents were created and submitted - then such a fact in the work biography dramatically reduces the employee's chances for a good position.

At the slightest occurrence of disputes and the possibility of avoiding such a severance of labor relations, the employee must go to court, and the employer is obliged to scrupulously and thoroughly investigate and be confident in the evidence of guilt - in the event of defamation and unjustified dismissal, the employee is entitled to significant compensation.

Which employees are fired due to loss of confidence?

Trust is an integral part of successful cooperation between an employer and an employee whose activities are aimed at serving the commodity or monetary values of the company.

This applies to cashiers, warehouse managers and so on. The employer concludes an agreement with such employees, which stipulates the responsibility of the employee for the property of the company.

It follows that the employer cannot issue a dismissal order for loss of confidence in an employee holding a position that is not related to the organization's material values.

There are situations when the duties of an employee responsible for material values are temporarily performed by another employee. If the replacement worker made any mistake, he cannot be fired, there must be good reasons for this:

If this employee replaces another periodically, and not once;
If it can be proven that the error was intentional.

What are the reasons for dismissal of an employee due to loss of trust?

Article 81 of the Labor Code the grounds on which an employee should be fired due to loss of confidence are not prescribed. However, based on case law, the following reasons for dismissal can be identified for this article:

Providing management with false reporting on the income of the enterprise;
Providing incorrect information about expenses;
Illegal storage of funds in banks abroad;
Theft or damage to company property;
And so on.

Consequences for workers

In relation to an employee who has lost confidence, the employer may apply the following penalties provided for by the Labor Code:

Comment;
Rebuke;
Recovery of the amount of stolen or damaged company property (according to article 243 of the Labor Code of the Russian Federation);
Dismissal.

Choosing the type of punishment, the employer is guided by the personality of the employee, his attitude to work, the circumstances of the offense, as well as the severity of the violation and its consequences for the company.

A remark or reprimand can be made either orally or in writing. However, it is recommended that everything be documented, because:

In the future, if the employee repeats the violation, he can be fired. And the documents will be proof that disciplinary sanctions have already been applied to the employee, which is why the dismissal is justified and legal;

You can read more about the legal consequences of illegal dismissal in.

Remarks and reprimands made in writing have a greater impact on the employee. In this regard, it is unlikely that he will repeat his offense again.

Dismissal due to loss of confidence threatens a former employee with very unpleasant consequences, among which are the following:

Interruption of work experience;
Unemployment benefit will not be paid during the first 3 months after the dismissal, after which its amount will be underestimated;
Temporary or permanent ban on a specific activity.

Dismissal due to loss of trust

Before issuing a dismissal order, the employer must understand the situation: is a particular employee really guilty of what happened and is there any evidence of this.

If the fault of the employee is proven, the employer has the right to dismiss him in accordance with Article 81 of the Labor Code of the Russian Federation.

Dismissal due to loss of trust occurs as follows:

The employer sends the employee a written notice of dismissal. In this case, the employee may not work out the prescribed 2 weeks, since he has committed unacceptable actions. Having received and read the notice, the employee must sign it. If he does not do this, an act of refusal must be drawn up;
Then it is necessary to draw up a dismissal order in a unified form T-8;

Please note that the reason for dismissal in the work book must match the reason for dismissal in the order.

On the day of dismissal, it is necessary to make a full settlement with the employee and issue him the necessary documents:
- Employment book with a record of dismissal for loss of confidence;
- income statement;
- Salary for all days worked in the current month;
- Bonuses and additional payments laid down in the company;
- Compensation for non-vacation leave, if the rest was not fully used.

For more information about the payments that an employee is entitled to upon dismissal, you can read in.

Sometimes an employee who has lost confidence refuses to take the blame, and therefore the wording “dismissal under the article of loss of confidence” categorically does not suit him. In this situation he writes

If the fault of the employee is serious and there is a possibility that he will again commit a violation, the employer must issue a dismissal order for loss of confidence within 2 weeks. Violation of this period is unacceptable, otherwise the employer will be able to dismiss the employee only at the employee's own request, if he wants to write such a statement (under article 80 of the Labor Code of the Russian Federation).

Read about how to correctly draw up a dismissal order.

How can I obtain evidence of a violation?

Dismissal due to loss of confidence is possible only if there is evidence of the guilt of a particular employee. To understand the situation, the employer convenes a fact-finding commission. To do this, an order is issued to create a commission, which indicates its composition (at least 3 people), the names and positions of employees, the purpose and date of formation, the duration and powers of the commission.

Members of the commission should be employees who are not interested in the outcome of the investigation.

The commission is called upon to solve the following tasks:

The circumstances of the violation, as well as the place, time and method of causing damage;
Inspection of the locations where the violation was committed;
Calculation of the cost of damage;
Calculation of the guilty persons;
Collection of evidence;
Determining the degree of guilt;
Determination of the amount to be recovered from the perpetrators;
Identification of the reasons due to which the violation was committed.

Members of the commission have the right to demand explanations from the employee who caused damage to the company. It is worth noting that the reason for creating a commission can be not only direct damage, but also those actions of the employee that could lead to this damage.

Each member of the commission must study the drafted order and sign it.

All evidence collected by the commission is drawn up in the form of acts, certificates and reports, after which they are transferred to the employer for review.

The employee in respect of whom the commission conducted the proceedings must be familiarized with the results of the investigation and the final decision against signature. If the employee refuses to sign, the employer draws up an appropriate act.

Before drawing up a dismissal order, the employer must demand from the employee a written explanation of the misconduct committed.