At his own request
The simplest way for both parties (the employee and the employer) to part from each other is for the employee to leave “at his own request”. For this, the employee has to write an application requesting permission to resign. This is required by Article 77 of the RF Labour Code (the Russian Federation Labour Code is the fundamental legislative act in the RF defining labour relations between employees and employers, and takes priority over any other Federal laws, presidential decrees and the like concerned with labour relations). Strict observation of the requirements of the RF LC guarantees freedom from problems for an employer in Russia.
In such cases, the main thing is not to provoke a conflict situation, otherwise the subordinate might simply refuse to sign the application. The employer must therefore make it clear to the person concerned that he is genuinely concerned about the future of the subordinate when he is no longer with the company.
If the employee can be persuaded to leave at his own request, he could (and I would say should) be given severance pay. But just don’t try to use invented accusations as “incentive” factors. This could cost you dearly.
One of our actual cases
A citizen who had been forced to write an application to leave at his own request applied to our law firm. His dismissal was preceded by accusations of alleged theft of materials and an order banning him from work, and the confiscation of his pass admitting him to the firm’s premises. Two weeks later, he was called in to the management and asked to sign an application to leave at his own request. If he did not do this, he was threatened that money would be demanded from him for the allegedly stolen goods, and also that he would be sacked on grounds that would discredit him. Our client agreed, but after his dismissal, he could not find a job anywhere. So he came to us and asked for our assistance in getting his job back.
We sent the appropriate declarations to all the state supervisory bodies. As a result of this, on the basis of an objection by the public prosecutor, the order dismissing our client from his job was declared invalid and cancelled. In court, we managed to draw attention to the contradictory evidence of the witnesses (company employees), who became confused and contradicted each other. The outcome was that the court made a ruling that our client should be given his job back, his wages should be paid for the six months of enforced absence, and he was also awarded legal costs.
Reducing staff numbers
An employee can be dismissed when staff numbers are reduced, regardless of whether such a reduction is necessary or not. The essential point is that it should be a genuine reduction. There are cases in which employers, under the pretext of a reduction, are trying to get rid of specific employees whom they don’t want, and immediately take on a new employee. In such a case, if the dismissed employee appeals to a court, he will most likely be given his job back. The employer will also be required to pay him wages for the period of his enforced absence based on his average wage.
The employee must be warned of the forthcoming reduction in numbers (of staff) in writing at least two months in advance. If the dismissed employee is a member of a trade union, his dismissal must be agreed with the union too. The employee must then be offered some other post in the organisation, and only after he has refused it does the employer have the right to issue an order dismissing him.
And lastly: an employee dismissed due to reduction in staff numbers must be given severance pay in the sum of one month’s average earnings. The average monthly earnings must remain the same for the time it takes him to find a job, but not exceeding two months from the date of his dismissal (taking the severance pay into account).
Strict observation of the requirements of the RF LC guarantees freedom from problems for an employer in Russia.
Dismissal for failure to observe labour discipline
In the event of a failure by the employee to observe labour discipline, the most important factor is that the labour contract should include a point in which the time the working day starts and ends is clearly stated. The time sheet should record all the employee’s breaches of contract in times of arrival and leaving work. If the poor timekeeping and other breaches of internal procedure are of a systematic nature, it is necessary that an order should be issued for each one of them on the disciplinary measures taken (admonitions, reprimands), then a commission has to be set up and an act compiled of these breaches, after which written explanations from the employee must be required. The commission may include other employees of the company, including the direct superior of the person who has to be dismissed. The commission also includes three disinterested parties (a secretary, a security guard, etc.).
If the employee refuses to give written explanations, an act of this refusal must be compiled and signed by the members of the commission. Of course, such acts, admonitions and orders may be disputed by the employee if he does not agree with them. Practice has shown that admonitions are not a sufficiently serious measure, whereas reprimands are, and employees hardly ever dispute them.
It is important not to be careless about any such documents, and to have all the relevant documents when dismissing an employee. These documents will help the company in the event of a legal dispute with the employee.
One of our actual cases
An employer came to us. He had dismissed one of his employees for repeated breaches of labour discipline. But the employee, disagreeing with his decision, applied to a court for reinstatement in his job. He declared in court that the disciplinary measure of dismissal taken against him was too severe and out of proportion to the seriousness of his misdemeanours. He also pointed out that the dismissal procedure was carried out in breach of the law’s requirements.
We submitted documents to the court about the employee’s repeated breaches of internal procedures and safety regulations (orders and rulings about deductions, fines and warnings of dismissal, and also the employee’s explanatory documents). We also submitted documents confirming that the procedure for dismissing the employee was legal (a copy of the dismissal with a confirmation that it had been handed to the employee).
Under the weight of such a mass of evidence, the court had no alternative but to refuse the employee’s demands.
Sacking for a single serious breach
According to the Russian Labour Code, the following can be considered a single serious breach:- coming to work under the influence of alcohol or other intoxicant;- absence for a specific part of the working day without warning;- disclosing a commercial or state secret;- theft, embezzlement or destruction of property at the workplace.
The most common reasons for dismissal under this heading are appearing at the workplace in an intoxicated state, and absence for more than four hours without explanation or valid reason. When commencing the dismissal procedure, do not forget to make sure that the employee’s job instructions or labour contract really does contain a clause about this, that the employee has been notified where his workplace is and has signed as having read the instructions.
If the employee is absent for more than four hours, he should be given a reprimand and an explanatory note should be demanded.
To prove that the worker was at his workplace in an inebriated condition, you need not only witnesses and their testimony in writing, but also a medical certificate. Only when you have all these evidentiary documents to hand can you proceed with the dismissal. Otherwise, the dismissal could easily be disputed in court, and more often than not the dismissed employee will win.
As for absence and dismissal in respect of it, in such a case it is possible to dismiss an employee even for being absent from the workplace only once. If the employee is absent for more than four hours, he should be given a reprimand and an explanatory note should be demanded of him. If the employee has no adequate explanation, he should be dismissed immediately. It is important to remember that the dismissal of an employee for absence should take place within one month from the moment when the absence was discovered.
The dismissal of employees on the employer’s initiative is possible on other grounds too.
For example, if a firm is liquidated or passes to a different owner, if the employee is not suitable for the post he holds, and so on. However, in any case, it is extremely important to observe all the formalities and act on the basis of the standards of current legislation.