Loss of trust is grounds for dismissing an employee with a corresponding entry in the work book. The norm applies to financially responsible persons. Dismissal under this article requires a lengthy process. If the manager approaches this issue lightly, the employee will be able to challenge his removal from work. Termination of employment relationships due to loss of trust is carried out on the basis of paragraph 7 of Article 81 and 261 of the Labor Code of the Russian Federation.
How to fire an employee servicing monetary and material assets due to loss of trust ?
Who and in what cases can be fired due to loss of trust?
An employer may dismiss due to loss of trust on the basis of clause 7, part 1, art. 81 of the Labor Code of the Russian Federation only if a number of mandatory conditions . To do this, you must have documentary evidence of the following facts:
- The employee is responsible for posting, accounting, issuing, and ensuring the safety of money or inventory items. This fact must be stated in an employment contract, an agreement on full financial responsibility (Part 2 of Article 57, Article 244 of the Labor Code of the Russian Federation);
When concluding an agreement on liability, it must be taken into account that it can only be applied to employees employed in certain positions (Resolution of the Ministry of Labor dated December 31, 2002 No. 85).
- the employee committed illegal actions that provide sufficient grounds for the employer to lose confidence in him (clause 45 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). Such misconduct may occur both on and off . They may also not be related to the performance of official duties (for example, a court verdict for theft or drug distribution). A clear list of such actions is not regulated and remains at the discretion of the employer ;
- the offender does not belong to the category of persons with whom it is prohibited to terminate the contract on the basis of loss of trust.
Dismissal for guilty actions is an extreme and not the only measure of punishment on the part of the employer. He may , but is not obligated to, apply it. Perhaps the employer will decide to apply a milder measure of restraint in the form of a reprimand or reprimand.
The burden of proving the employee's guilt lies with the employer .
However, for example, if a shortage is discovered, if the conclusion of an agreement on full financial liability with the person who committed it is justified, it is the offender who must prove the absence of his guilt in the loss or damage of property (clause 4 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52).
List of conditions for dismissal due to loss of confidence for civil servants
Unlike employees of commercial organizations, for state civil servants certain special circumstances are prescribed that give management the right to dismiss due to lack of confidence in the worker (Article 59.2 of the Federal Law of July 27, 2004 No. 79-FZ). These include:
- failure to provide or distortion of information about property and income received by a civil servant or members of his family;
- participation on a paid basis in the management of commercial structures;
- detection of a conflict of interest of an employee - if he did not report it and did not take measures to eliminate it;
- conducting business activities by government employees;
- entry of an employee into the management bodies of foreign non-profit organizations;
- violation of the ban on the use of foreign financial instruments or bank accounts.
Features of dismissal of different categories of workers
Termination of employment contracts with employees in different positions has some nuances.
Military personnel
Military personnel are subject to increased requirements, regulated not only by the Labor Code, but also by federal laws. Dismissal may be carried out on the following grounds:
- Information about the income of the employee, as well as his family members, is deliberately hidden.
- A soldier is engaged in business activities.
- A person is engaged in managing a commercial company, receiving income from it.
All these nuances are specified in the Federal Law “On Military Duty”.
Accountant
It is impossible to dismiss an accountant due to loss of trust, since, according to the Regulations “On Chief Accountants” of January 24, 1980, such employees are not financially responsible persons. Employees do not interact with the money supply directly. However, you can terminate the employment relationship with the accountant-cashier, who is responsible for the safety of funds.
Supervisor
It will also not be possible to dismiss managers and directors of an enterprise under this article. They do not interact with cash, do not store or transport the money supply, and therefore do not bear financial responsibility.
What is the procedure for dismissal due to loss of confidence?
The general procedure for dismissal due to loss of confidence must be applied taking into account compliance with the procedure for bringing to disciplinary liability (Articles 192 and 193 of the Labor Code of the Russian Federation).
In this regard, the main restrictions that apply to such actions by the employer are as follows:
- application is possible within 1 month from the date of detection of the violation;
- The employer may exercise his right to dismissal no later than six months from the date of the commission of the offense.
In order to lawfully dismiss for loss of trust, it is necessary to responsibly approach each stage of the procedure. Especially at the stage of collecting evidence of the employee’s guilt.
How to make an entry in the labor record
The basis for making an entry in the work book is an order. Entries are made according to the following rules:
- Column 1 indicates the serial number of the entry being made;
- in column 2 - date of dismissal;
- in column 3 - the reasons and grounds for dismissal in wording that exactly repeats the wording of the order;
- in column 4 - details of the order (instruction) on dismissal.
The entry in the work record for the period of activity with the employer is certified by his signature or the signature of the person responsible for maintaining work records, a seal (if any), as well as the signature of the employee himself.
How to document a violation
There is no clear, legally regulated form of document to reflect the discovered fact of violations committed by an employee . As a rule, this is a memorandum in free form, including:
- identification data (full name, position) of the initiator of the document that discovered the violation;
- a description of the facts identified and the conditions under which they were committed;
- date and personal signature of the compiler.
If the violation took place outside the employer's territory, he will receive documents from investigative authorities or from the court. does not need to compose anything additional .
How to conduct an investigation and document its results
To confirm the detected violations, a commission is created for an internal investigation. It should include who are not interested in the outcome of the proceedings. Its number is at least 3 people . To do this, issue an order in any form, which indicates:
- positions and names of persons involved in clarifying all the circumstances of the offense;
- powers of commission members;
- objectives of the investigation;
- its duration.
The commission must:
1. Identify all the conditions under which the violation was committed.
2. Establish a list of valuables that are lost or damaged.
3. Inspect the place where the violation occurred.
4. Assess the amount of direct actual damage.
5. Identify the guilty employees and obtain evidence of their guilt.
6. Establish the circumstances that contributed to the commission of the offense.
All members of the commission are introduced to the order against signature.
Based on the results of the actions taken, an act is drawn up. It provides the following information:
- a list of employee actions that give grounds for mistrust;
- conditions for committing unlawful acts;
- the amount of damage caused or possible damage caused by them;
- the degree of guilt of the employee and proposals for applying punishment to him.
The act is signed by all members of the commission, and the employee gets acquainted with it against signature. If he refuses to familiarize himself, this is also documented in a separate act.
Step-by-step procedure
Step 1. The employer records the fact of committing guilty actions in the form of an internal memo or report, since there is no unified form.
Step 2. The employer, by order, creates a commission to conduct an internal audit consisting of at least three people. The order records the date, purpose of the creation of the commission, its powers, the period of its activity, full name. and the positions of the employees included in its composition. Members of the commission get acquainted with the order against signature.
Step 3. The commission establishes the fact of committing guilty actions, the time, place, method, cost of damage, establishes the specific culprit and the degree of his guilt, and stores the materials of his investigation.
Step 4. The employer requires a written explanation from the employee, which is provided within two working days. If there is a conflict, the employee must be notified in writing of the need to provide an explanation. In the absence of explanations, the manager draws up an act of refusal to provide them.
Step 5. The commission records the results of the investigation in a report. There is no standardized form for this document. In addition to the results and conclusions about guilt, the act contains proposals on the punishment of the employee (if there is evidence of guilt). All members of the commission sign the act.
Step 6. Based on the results of the inspection, the employer issues a dismissal order with reference to clause 7, part 1, art. 81 Labor Code of the Russian Federation. The employee gets acquainted with the order against signature within three working days from the date of publication. The employer records the refusal to familiarize himself with an act.
Step 7. The employer fires the employee due to loss of trust:
- no later than 1 month from the date of discovery of the misconduct (illness or vacation are not included in the calculation of the period);
- no later than 6 months from the date of commission of the offense, but if the fact was discovered during an audit or inspection - no later than two years from the date of commission;
- no later than one year from the day the employer learned of the misconduct, if the actions were not committed at the place of work or in connection with the performance of his duties.
The last point needs some clarification. If the actions that give rise to loss of confidence are not related to work, then dismissal will not be considered a disciplinary sanction (part 3 of article 192 of the Labor Code of the Russian Federation, paragraph 2 of paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 ). Consequently, take into account the procedure for applying penalties established by Art. 192, 193 of the Labor Code of the Russian Federation, in this case it will not be required. Dismiss under clause 7, part 1, art. 81 of the Labor Code of the Russian Federation for guilty actions committed by an employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, no later than one year from the date of discovery of the offense by the employer (part 5 of article 81 of the Labor Code of the Russian Federation and paragraph 47 Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
IMPORTANT!
An employee dismissed for a corruption violation is included for five years in the register of persons dismissed due to loss of trust. The inclusion period is counted from the moment of adoption of the act that served as the basis for inclusion in the register. The register is posted on the website of the federal GIS in the field of civil service.
The procedure for requesting explanations from the perpetrator
If the employee himself is ready to give written explanations on the current situation, he does not need to be given a written request to give them. It is enough to receive his voluntary explanations in paper form.
If a conflict arises and the employee clearly does not want to give explanations, he should be given a notification of their provision against signature. After this he has 2 working days to respond. If explanations are not received within the specified period, an act of refusal to provide explanations is drawn up.
