Dismissal due to health reasons

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Health problems lead to a person being unable to perform a number of life responsibilities. Using the example of work activity, this results in a decrease in individual indicators. In this sense, if an employee feels unwell, he can write a letter of resignation for health reasons. In all cases, he must receive a monetary payment. It's time to tell you what its size is and how to get a quote.

What actions does the employer take?

After receiving a medical report, do not rush to file a dismissal for health reasons. Find out what working conditions are harmful to the subordinate. Can they be eliminated or reduced? Should you reduce your working hours? In the future, three options are possible: changing working conditions, transferring to another position, or terminating the contract.

The Labor Code states that the dismissal of an employee for medical reasons is provided for:

complete loss of ability to work, which is confirmed by the conclusion of a medical and social expert commission (clause 5 of Article 83 of the Labor Code of the Russian Federation);
refusal to transfer to another position (clause 8 of Article 77 of the Labor Code of the Russian Federation).

An employee recognized as completely incapable of working will not be able to fulfill his obligations efficiently. Sometimes there is even a threat to others. Therefore, it is unacceptable to retain such a person. Otherwise, the employer may be subject to criminal liability.

However, you cannot, on your own initiative, formalize the dismissal of an employee for health reasons who is recognized as partially incapable of working. For example, I received disability group III. It is possible that he will cope with his responsibilities on other terms. Cooperation can be terminated only at his request. Violation of this requirement will result in liability.

Deadlines

As in any other cases, it is necessary to pay the employee in full on the last day of work (Article 140 of the Labor Code of the Russian Federation).

Article 140 of the Labor Code of the Russian Federation. Payment terms upon dismissal

Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.

In the event of a dispute about the amount of amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article.

There are several options for calculation and its design:

in cash on the payday established by the company, in which case the employee must sign the payroll;
in cash on a day other than the date of payment of wages, in this case an expense cash order is issued;
in non-cash form with the execution of an expense payment order.

If an employee was absent from the workplace on the day of dismissal, payments must be made when he contacts the company (on the day of application or the next day).

Payments upon dismissal for health reasons

Funds are issued on the day of termination of the contract or within the next day (from the date of application). The employee is paid:

Salary for days worked. Salary calculation formula:

Salary = SALARY / Nwork * Nfact - personal income tax (13%), where:

Nwork - number of working days in a month;

Nactual - the actual number of days worked in the month.

Compensation for unused vacation. It is obligatory to pay, including if a dismissal is made due to the employee’s health. In this case, all days of unused vacation are taken into account:

HOLIDAY PAY = Salary average.d. *D, where

ZPsr.d. — average daily earnings;

D - number of unused vacation days.

Severance pay in the amount of two weeks' earnings (Part 3 of Article 178 of the Labor Code of the Russian Federation). Insurance premiums and personal income tax are not assessed. It is calculated like this:

BENEFITS = ZPsr.d. * N, where

N is the number of working days (the first two weeks are considered).

Example

All numbers in the example are arbitrary. Alliance LLC terminates the employment contract on December 7, 2017 with A.I. Korshunov due to complete loss of ability to work. Salary 43,500 rub. 15 days worked in November. The average daily salary is 1,700 rubles. The main vacation was not used. What are the employee's rights?
Salary for days worked:
43,500 / 21 * 15 - 31,071.4 * 13% = 27,032.1 rub.
Compensation for unused vacation:
1,700 * 28 - 6188 = 41,412 rubles.
Severance pay. Since the number of working days from December 7, 2017 to December 20, 2017 is 10, we get:
1,700 * 10 = 17,000 rub.
Alliance LLC must pay A.I. Korshunov received a salary of 27,032.1 rubles, compensation for unused vacation of 41,412 rubles. and severance pay of 17,000 rubles.

Who pays benefits to a dismissed employee?

On the last day of work, the employer’s accounting department pays the dismissed employee:

wages;
compensation payments for rest days. remaining with the employee;
severance pay in the amount of average earnings for 2 weeks.

If before the termination of the employment relationship the employee was on sick leave, then payment of the certificate of incapacity for work is made in the following order:

the obligation to pay for the first three days of sick leave rests with the employer;
payment for subsequent days of incapacity is made by the Social Insurance Fund (clause 1, part 2, article 3 of Law No. 255-FZ).

Dismissal for performance inadequacy

Similar to the previous case, only instead of violations of discipline there will be mistakes in work . Here everything is much more complicated - you can’t get off with a simple act. We need stronger evidence. Now we will tell you which ones. Let’s make a reservation right away: this is how they work at manufacturing enterprises. In online trading, none of this is observed, although it should be. So, to fire an employee for incompetence, you need to:

develop and approve several instructions for the employee. For example, a job description, instructions for working with a personal computer, safety instructions;
Conduct a knowledge test of job descriptions every year. With the preparation of protocols and journal entries;
conduct employee training.

If you don’t do all this (and you don’t), then it’s impossible to fire a person for incompetence. Evidence of performance inadequacy is when an employee fails to pass an examination of his knowledge of his instructions. No instructions and exams - no dismissal. Dot.

Dismissal from work for medical reasons

Current labor legislation regulates various aspects related to hiring, the procedure for carrying out labor activities and the dismissal of employees. Thus, the grounds for termination of the contract between the employee and the employer are established by Chapter 13 of the Labor Code (Articles 77-84).

Among other things, dismissal for health reasons should be highlighted here. It occurs in cases where an employee, due to the occurrence of a disease that does not allow him to perform the duties provided for in the employment agreement, cannot continue to work at his previous place of business.

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It should be noted that termination of the contract in this case is not the initiative of the employee himself. Dismissal at will is a separate basis for termination of an employment contract and does not require any additional conditions.

In addition, interruption of a working relationship with an employee due to his illness cannot be solely the initiative of the employer. A medical certificate is required for dismissal on this basis. The employer does not have the qualifications and special knowledge regarding medical contraindications for the performance of this or that activity by its employees.

Reference! Dismissal for health reasons without a medical specialist’s opinion, as well as coercion to terminate an employment contract at one’s own request due to the employee’s illness, is a gross violation of current legislation, for which administrative and, in some cases, criminal liability is provided.

It should be noted that it is not always possible for an employee who has certain health problems to report this to his management, so as not to lose a position that is profitable for him. In order to promptly identify employees for whom their current work is contraindicated, the employer is obliged to provide conditions for undergoing scheduled inspections.

It is also useful to read: Dismissal of a pregnant woman

What documents to provide

In order to issue severance payments to a disabled person, it is necessary to prove the fact of loss of ability to work. You need to bring to management a certificate of disability, drawn up on an official form (approved by Resolution of the Ministry of Health of the Russian Federation No. 41). It must indicate the degree of disability established by the medical commission.

Termination of an employment contract must be formalized by order.

Design nuances

Based on the papers regarding loss of ability to work, the manager makes a decision, which must be expressed to the employee in writing:

If another job is offered, then the person needs to write opposite the likely positions: “I agree” or “I refuse.”
If the citizen does not want to continue working, he writes a letter of resignation. It should indicate “for health reasons.”
The personnel officer prepares a draft order, the basis for which is:
employee statement.

The disabled person should be familiarized with the signed and registered order.
This is done to prevent you from going to court with a complaint. There is another option. According to Art. 73 Labor Code:

The disabled person may be given time to recover. The period is limited to 4 months.
During this time, the patient retains a place (the employer does not have the right to occupy it on a permanent basis).
After the specified period, the employee undergoes a medical examination again. If his health allows, he returns to service.

During the recovery period, the person is not paid a salary.

Rules for registration and sample documents

In order to strictly follow the letter of the law, to terminate employment obligations, the employee must provide the following documents:

A health document issued by a health care institution.
Written refusal of an employee to be transferred to another workplace.
A document confirming the absence or presence of a vacancy suitable for transfer.
Employee resignation letter.
Original employee notice of dismissal with the obligatory signature of the employee.

Sample notice of dismissal due to health reasons
An order from the enterprise regarding dismissal indicating the reason related to the employee’s health.

Typical order form for a private or public enterprise

In this case, the corresponding entry is entered into the work book, where the reason for dismissal is “health status”.

In order to prevent problematic issues that may arise due to an employee’s reluctance to admit to health problems, the administration of the enterprise must ensure that employees undergo regular medical examinations.

Can they be fired without the employee’s consent?

To fire a person who has medical contraindications, it is not necessary to have the consent of the person being fired.

However, in some situations, a dissenting employee may refuse to sign a notice of termination of employment and the corresponding order, which may slow down the personnel registration process. However, in this case, the administration of the institution draws up a report indicating that the employee has read the documents, but refuses to put his signature on them . The act is certified by the manager and several employees confirming what is stated in it.

Is work needed?

“Working off” refers to the employee’s obligation to notify his employer of his impending dismissal. In accordance with the Labor Code, this must be done in advance - 2 weeks.

However, this rule applies only if the reason for terminating the contract is the desire of the employee himself. Medical contraindications are circumstances that do not depend on the will of the parties, so there is no need to notify management in advance in this case. In other words, no rehearsal is needed.

Dismissal for violation of labor discipline

Not the easiest way to get rid of a careless employee, and here's why. Any violations must be properly proven. You cannot fire a person with this wording in one go. Now the former employee will run to “competent” lawyers who can prove in court that the person was kicked out unjustly. They say that the manager had a personal dislike for him, took advantage of him, and so fired him for simple tardiness. And others are late, and nothing happens.

To prevent this from happening, you will need a multi-step approach . Let's say an employee is constantly late and disrupts the work process. Start small - reprimand him. Being late a second time means a severe reprimand. For the third delay - dismissal. The most important thing is to get it all in writing. You cannot prove an oral reprimand in court. Therefore, the reprimand is only written, with the signature of the “accused” and his explanatory note.

You also need to draw up a violation report in free form. The wording is something like this: “So-and-so on such-and-such a date was 40 minutes late for work, which put the work process in jeopardy.” The act must be signed by the offender and at least three witnesses - they can be taken from among other workers.

The second delay is formalized in exactly the same way, only we use a severe reprimand as a punishment. We also attach to it an act of violation with the signature of the violator and witnesses, as well as an explanatory note from the latecomer. Now you have something to show in court.

Please note that being late is considered a person's absence from work for 15 minutes or more . If an employee is delayed by three to five minutes, unfortunately, nothing can be done about it. By the way, absenteeism is absence from place for 4 hours in a row.

Now look. People are rarely fired for violating labor discipline. Why spoil a person’s work record so that he then can’t get a job anywhere? This is not usually done. Invite the offender to your place and present him with a fact: either you write a statement of your own free will, or we will fire you under the article. We assure you that everyone will choose option No. 1 first and you will part relatively peacefully. They won't even ask for detention.

It was a theory. What is the best way to kick out a negligent employee in practice?

By mutual agreement of the parties. Just invite the person to a conversation and offer to part on good terms. Like, we won’t be able to work together, we’re not on the same path, and so on. Hint that it will come to dismissal sooner or later and it is better to part ways amicably and in a civilized manner.
If option No. 1 did not work, move on to point No. 2. It is described in detail in the section on violators of labor discipline . We collect reports of violations, write orders of reprimand, dismiss, or offer to write on our own.
Did not work out? Then we expel you for incompetence. It's not fast and it's tedious. You need to write instructions (you can download standard ones and rewrite them for yourself), train a person and take exams that he will not pass. Exams are administered by a commission of 3 people. If you fail, we schedule several retakes. The final exam in the extended commission will be decisive. Possibly with the participation of government representatives. Failure - dismissal.
If the previous methods did not help, we move on to heavy artillery - dismissal due to staff reduction . It is long and expensive, but the result is 100%. The main thing to remember is that downsizing requires a reason—any change in the process that makes some positions redundant.

Some employers use a trick. Let's say you can't fire a bad employee. You can prepare documents on staff reduction, fire a person, and from next year again introduce his position into the staffing table.