Dismissal due to loss of confidence: grounds and procedure. The wild amendment of the Labor Code will allow the dismissal of anyone “with loss of trust”

Dismissal of employees at the initiative of the employer, even if they caused harm to the organization, is always an extremely “acute” moment. As with any disputes and conflicts, there are two points of view: the employee and the organization. The HR specialist is in a situation where, on the one hand, he needs to take into account the requirements of the employee’s manager, and on the other hand, listen to the position of the most guilty employee, and offer the head of the enterprise a reasonable and legal solution. Sofya Povzikova, head of the HR administration department at Coleman Services, considers a situation related to the theft of the employer’s property.

Let's remember the law. In case of theft of property, the employee may be dismissed at the initiative of the employer and the HR specialist can use two grounds of the Labor Code of the Russian Federation:

Clause “d” of paragraph 6 of Article 81 “Commitment at the place of work of theft (including small) of someone else’s property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases on administrative offenses";
Clause 7 of Article 81 “Commitment of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him on the part of the employer.”

Not all employers are ready to contact the police and seek the initiation of a criminal case or administrative proceedings (it is long, labor-intensive to collect documents and, as a rule, compensation is unlikely), therefore, when dismissing employees, clause 7 of Art. 81 of the Labor Code of the Russian Federation, colloquially called “loss of trust”.

Loss of trust

Dismissal of an employee due to loss of trust in him is not done very often, since the procedure for preparing documents carries many nuances. However, if there is a clear algorithm of actions, it is not difficult to prepare a package of documents.

Dismissal due to loss of trust is possible only for employees who directly service monetary or commodity assets (reception, storage, transportation, distribution, etc.). These can be specialists working as cashiers and accountants, delivery drivers, salespeople, as well as almost all logistics positions.

It does not matter whether an agreement on full financial responsibility (individual or collective) has been concluded with the employee(s) or not. It also does not matter what job responsibilities (primary or additional) include servicing monetary or commodity assets.

On this basis, it is impossible for pregnant women, as well as employees on vacation or on sick leave.

Guilty actions

Neither the Labor Code of the Russian Federation nor any other document establishes a list of guilty actions that may serve as a reason for loss of trust. The employer has the right to independently determine what actions of the employee indicate a loss of trust.

The reasons for the loss of trust of employers may be the actions (inaction) of the employee leading to shortages, theft, loss, destruction of property entrusted to the employee, violation of cash discipline, as well as fraudulent actions expressed in weighing, counting, measuring, weighting, unreasonable write-off of goods and valuables , misappropriation of property and/or funds, underestimation or overestimation of prices for goods, etc.

When preparing dismissal under clause 7 of Art. 81 of the Labor Code of the Russian Federation, it is important to remember that the employee’s guilt must be proven, i.e. a simple establishment of a fact, for example, loss of property or recording of a CCTV camera, will not be enough for dismissal under this article.

Dismissal procedure

Actions of an employee that give rise to loss of confidence in him must be considered a disciplinary offense. Therefore, dismissal must be carried out within the deadlines and taking into account the requirements of Art. 193 of the Labor Code (attention to deadlines!).

The employee must be required to provide written explanations for wrongdoing. It is best to formalize the request in a special document and hand it over to the guilty employee against signature. If the employee avoids receiving the demand or it is not possible to serve the demand on the employee, the document can be sent to his address by registered mail.
The employee has two days to provide explanations (Article 193 of the Labor Code of the Russian Federation). If the employee does not provide an explanation within the period established by law or refuses to provide an explanation at all, it is necessary to draw up an appropriate report about this. The absence of an explanation does not affect the employer’s right to dismiss an employee on the basis of loss of trust.
It is necessary to request written explanations from the employee who discovered the commission of illegal actions. This could be a memo, report, etc. The document must describe in detail the circumstances of the identification of guilty actions (indicating the time, date, place and other persons present).
If guilty actions of an employee are discovered during an inventory or audit of inventory items, then inventory lists and/or audit reports (with mandatory indication of the serial number, date and time of compilation, signatures of persons participating in the inventory (audit)) must also be added to the documents for dismissal.

The employer can initiate an internal investigation, which will have to identify the perpetrators and collect evidence of guilty actions. To conduct an investigation, the employer issues an order that creates a special commission of employees of the organization (at least three) who are not interested in the final result of the inspection; the period of its validity and the powers of the persons included in the commission are established. All members of the commission must be familiarized with the order against signature. Also, members of the commission are responsible for storing all materials of the internal investigation.

If a repeat (audit) is necessary to prove the employee’s guilt, an inventory order is issued, an inventory commission is created, inventory lists are formed, the commission enters the territory with financially responsible persons and counts the property.

The presence of financially responsible persons, including the guilty employee, during the inspection is mandatory. The commission ensures “transparency” during the inspection and eliminates all sorts of misunderstandings when, for example, a materially responsible person may declare an incorrect count of property by third parties in the territory under their control.

At the end of the investigation, the commission draws up a report describing the guilty actions committed by the employee. The commission determines the degree of guilt of the employee and makes proposals on the punishment of the guilty person. The act must contain the date of preparation, the composition of the commission, a link to the order to create a commission for a specific purpose, and a list of evidence collected. The act is signed by all members of the commission.

It is necessary to familiarize the offender with the act - he must be familiarized with the decision of the commission against signature. If the offender refuses or evades signing, then you can read the act out loud. The fact that the employee refused to familiarize himself with the act, as well as the fact that the act was read aloud to the employee, a corresponding entry is made on the act. This record is certified by the signatures of the persons participating in the commission.

Firstly, an order to impose a disciplinary sanction in the form of dismissal. There is no unified form for such an order, but it must contain:

A reference to the basis (for example, to an act on an internal investigation);
Full name, position, department of the employee;
A brief description of the employee’s culpable actions;
Clauses of the employment contract or job description that were violated;
Type of disciplinary action.

The employee should be familiarized with this order against signature no later than 3 working days from the date of its publication (this period does not include periods of absence of the employee). If the employee refuses to familiarize himself with the order, then it is necessary to draw up a corresponding act (Article 193 of the Labor Code of the Russian Federation).

Secondly, an order of dismissal in the unified form T-8 or in the form established in the organization. If the order cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it against signature, a corresponding entry is made directly on the order (Article 84.1 of the Labor Code of the Russian Federation)

An entry about the termination of the employment contract is made in the employee’s work book in strict accordance with the wording of the Labor Code.

On the day of termination of the employment contract, the employer is obliged to make a final settlement with the employee: pay lost wages, as well as compensation for unused vacations and other amounts due to the employee. The amount of damage can be deducted from the amount of lost wages, but only if the amount of damage does not exceed the average monthly earnings.

Compensation payments are paid in full. The employer has no right to deduct from them. Even to compensate for the damage! Damage, the amount of which exceeds the average monthly salary of the employee, is recovered in court.

Employer's right

According to Art. 240 of the Labor Code of the Russian Federation, recovery of damages from an employee is not the obligation of the employer, but his right. Also, dismissal of an employee in case of guilty actions is not the responsibility of the employer.

HR specialists know numerous examples when the heads of organizations decide to retain an employee in the team and apply a more lenient punishment to the employee - a reduction in the size of the bonus, etc. There are also numerous examples where employers retain the employee’s job, but agree to gradually pay off the damage without involving third parties.

One of the reasons for termination of an employment relationship at the initiative of the employer may be dismissal due to loss of trust. This norm is enshrined in clause 7, part 1 of Art. 81 TK, but they don’t use it often. To terminate a contract with this wording, strict compliance with the 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 oblige the employer to pay compensation to the reinstated employee for forced downtime.

What circumstances can lead to a loss of trust?

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

the employee has committed any misconduct;
the employee’s work activity is related to material assets or funds;
the actions taken by the employee caused a loss of trust in the employer (this may also be inaction);

Termination of an employment contract based on loss of trust causes negative consequences for employees.
These include: 1) interruption of work experience - affects payments for temporary absence from work 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 lifelong).

The important point in this situation is that the employee’s misconduct does not necessarily have to cause any damage to the employer. If damage is caused, the right to compensation and holding the employee responsible for this to financial responsibility arises automatically. In this case, repeated actions by this employee may lead to material losses in the future, so this reason for dismissing an employee allows the employer to prevent possible damage and protect the organization’s monetary and material assets.

In what cases is dismissal possible?

Dismissal under the article “Loss of trust” for an offense committed by an employee during working hours is, in accordance with Part 1 of Article 192 of the Labor Code, one of the methods of disciplinary action. In addition to this, the manager has the right to use other penalties provided for in this article, such as a reprimand or reprimand. For certain categories of employees, various regulations provide for other types of penalties, for example, transfer of an employee to another position or job. The manager decides independently which penalty to apply in a particular case.

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

Important! If an employee’s misconduct, which could lead to a loss of trust, is not related to his work activity, then dismissal for such a reason will not be considered a disciplinary sanction.

Judicial practice shows that dismissal for loss of trust is possible in cases where an agreement on financial liability has not been signed. This happens if the responsibilities for working with money or commodity assets are fixed in the employment contract with him, or he is authorized to sign any documents relating to material assets or finances.

There are special grounds for dismissing a civil servant due to loss of confidence. Various types of official penalties may also be applied to this category of employees if they commit disciplinary offenses. But in Art. 59.2 of Law 79-FZ “On the State Civil Service” lists specific reasons for dismissal on this basis, namely:

failure to provide information about personal income and income of close relatives;
engaging in entrepreneurial activity;
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 this basis during the employee’s next vacation or illness.

The termination of employment due to loss of trust is described in the video

Dismissal procedure

The procedure for dismissal for loss of confidence consists of several stages. Only strict adherence to the entire sequence of these stages can guarantee the legality of termination of an employment contract under clause 7, part 1 of Art. 81 of the Labor Code and will allow the organization to protect its rights in the event of legal disputes about the legality of such dismissal.

Some facts

The main points considered by the created commission are: 1) determination of the circumstances under which the damage was caused, indicating the place, time and method of application 2) if necessary, examine the places where the damage was caused 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 recovery 7) determine the causes and conditions that caused the damage.

If an employee’s actions are discovered that could cause a loss of trust, they should be documented. There is no standard form for such a document; in practice, such employee actions are reflected in a memo. 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. If a shortage of material assets or money is detected during an inventory, an act is drawn up.
Based on these documents, an official investigation is organized to determine the culprit. For this purpose, a special commission of at least 3 disinterested competent employees is created. The commission conducts an investigation even in cases where no material damage was caused, but the employee’s corresponding actions could have caused such consequences. In addition to his own internal investigation, the head of the organization has the right to contact law enforcement agencies. However, establishing the employee’s guilt by the employer himself is sufficient for dismissal due to loss of trust.
The conclusions made by the commission and the information received are recorded in the relevant act. One of the mandatory points of this document is the conclusion that for the actions committed, the employee loses trust in the employer. The employee must be familiarized with the act against signature; if he refuses to sign, an act is drawn up in which the members of the commission sign.
Before applying a penalty to an employee, you should receive an explanation from him in writing in accordance with Art. 193 Labor Code of the Russian Federation. If an employee does not agree to write an explanation, it is also better to submit a request for it in writing. If the employee does not provide an explanation within 2 working days, the employer draws up a report about this. If there is a written requirement to provide explanations and an act, an employee can be fired without an explanatory note.
Further termination of the employment contract is carried out according to general rules: a termination order is created, a calculation note is prepared, and a corresponding entry is made in the employee’s personal card and work book. All documents required upon dismissal are issued to the employee in accordance with the general procedure.
Thus, in order to avoid litigation, it is necessary to strictly follow the procedure for dismissal due to loss of confidence.

Dismissal due to loss of trust applied by the employer in relation to employees whose actions have shown that it is impossible to entrust them with the maintenance of valuables. In the article below we will consider in detail the conditions for such dismissal.

Employees in whom trust may be lost. Is it possible to fire an accountant?

Fire for loss of trust(clause 7, part 1, article 81 of the Labor Code of the Russian Federation) not any employee, but only one whose work consists of servicing commodity and/or monetary assets. Service here refers to various operations: issuance, reception, transportation, storage, etc. The corresponding responsibilities must be contained in the employee’s job description.

The existence of an agreement on full financial responsibility is not a necessary condition for dismissal in this case, although it is taken into account by the courts when examining disputes about the nature of job responsibilities. This is confirmed, for example, by the decision of the Kirovsky District Court of Yekaterinburg in case dated February 18, 2011 No. 2-411/35(11). Maternity liability agreements can only be concluded with employees holding certain positions or performing certain work. The list of such positions and works was approved by the Ministry of Labor of the Russian Federation in Resolution No. 85 dated December 31, 2002.

However, the existence of a liability agreement alone cannot guarantee the possibility dismissal for loss of confidence. It is necessary that the corresponding responsibilities be enshrined in the employment contract and/or job description (appeal ruling of the court of Khanty-Mansi Autonomous Okrug - Ugra dated October 2, 2012 in case No. 33-4375/2012).

IMPORTANT! Accountants, merchandisers and similar employees cannot be fired for loss of trust, since they are not persons directly servicing inventory items (Decision of the Supreme Court of the Russian Federation dated July 31, 2006 No. 78-B06-39).

Why can you fire an employee due to loss of trust? Signs of action, judicial practice

You can only be fired for actions that:

They were committed guilty.
Resulted in a loss of trust from management.

The fact that the relevant actions have been committed and the employee’s guilt must be confirmed by an act of an authorized government body (for example, a court verdict) or the results of an internal investigation.

At the same time, it is important to understand that the Labor Code of the Russian Federation does not contain a list of actions for which one could definitely be fired on the grounds under consideration. Loss of trust is an evaluative concept, so the employer has the right to independently decide whether it is applicable, taking into account all the circumstances (the employee’s previous behavior, his personality, attitude towards work, etc.).

For example, the courts found the following dismissals to be lawful:

for violation of the rules for carrying out cash transactions (ruling of the Arkhangelsk Regional Court dated May 16, 2002 No. 33-1411);
failure to comply with the procedure for issuing valuables, approved by the local document of the employer (determination of the Ryazan Regional Court dated November 29, 2006 No. 33-1699).

To summarize, we can only say that actions that caused or could cause damage to the employer are clearly grounds for loss of confidence in the employee responsible for them.

The Plenum of the RF Armed Forces clarified that dismissal on this basis can also be done when the employee’s actions are not related to his current work (clause 45 of Resolution No. 2 of March 17, 2004). However, this possibility is limited to cases where an employee commits offenses with a mercenary motive (theft, bribery, etc.). Obviously, even illegal acts of this kind committed outside of work may indicate that this employee should not be entrusted with working with inventory items. The fact that an employee is held accountable, for example, for violating traffic rules, cannot affect the employer’s trust and act as a reason for dismissal under clause 7, part 1, art. 81 TK.

The procedure for recording violations, a sample order to create a commission

Dismissal for loss of confidence will be recognized as legal only if the violations are documented by the employer. We are talking about violations of labor discipline, since for dismissal for actions punishable under the Criminal Code of the Russian Federation or the Code of Administrative Offenses of the Russian Federation, an act of an authorized government agency or official that has entered into force is sufficient.

Labor legislation does not establish a procedure for documenting violations of labor discipline. In practice, upon detection of a process or result of a violation, a report/service note is drawn up (the author is the person who discovered it), which reflects:

information about the employee who discovered the violation (full name, position);
time and place of discovery of the violation;
the circumstances of the violation identified at this stage.

The memo serves as the basis for starting the internal investigation procedure.

A special case is the identification of a shortage as a result of an inventory, about which a corresponding act must be drawn up. In this case, it is not necessary to fill out a report, but it is necessary to conduct an investigation. Dismissal due to loss of confidence, based solely on the results of an inventory, is recognized by the courts as illegal (decision of the Karasuksky District Court of the Novosibirsk Region dated September 12, 2012 in case No. 2-694/2012).

Dismissal under article about loss of trust, internal investigation procedure

An internal investigation is carried out to establish the fact of violation of labor discipline, all the circumstances of its commission and the guilty employee. Its implementation is not regulated by law, but in practice it usually begins with the creation of a commission (at least 3 people). Members of the commission are selected by the employer at its discretion from among competent employees who are not interested in the investigation.

Its creation is formalized by order in any form. It is recommended to reflect in it:

information about members (full name, position);
purpose of creation;
validity period (optional if the commission is permanent);
powers.

All employees listed in the order must be familiarized with it against signature. You can find a sample order on our website.

Consolidating the results of the investigation

The employer's chances of winning in court in the event of challenging dismissal will increase if all the actions of the commission are reflected in documents (certificates, memos, acts). The following should also be attached to the investigation materials:

inventory documents (if suspicion of a violation arose based on the results of the inventory);
documents received from third-party organizations (for example, if a violation was discovered with the help of a bank) and authorities.

The results of the work are documented in a report on the results of the investigation. It is advisable to indicate in it:

specific actions that were committed and which entail a loss of confidence in the employee who committed them;
established circumstances of the offense;
damage caused or the possibility of causing it;
information about the guilty employee;
possible punishment for the perpetrator;
other information relevant to the investigation.

IMPORTANT! The act must indicate that the employee lost the trust of the employer precisely for the identified guilty actions.

The act is signed by all members of the commission, after which the guilty employee must be familiarized with it and signed. If it is impossible to familiarize yourself with it (for example, due to absence from work), a note about this is made in the act indicating the reason. Members of the commission must attest to the impossibility of familiarization with their signatures. The employee’s refusal to sign the document is formalized in the same way.

Conducting its own investigation does not deprive the employer of the right to contact law enforcement authorities if there is a suspicion that a crime or administrative offense has been committed.

The procedure for applying disciplinary sanctions under the Labor Code of the Russian Federation

Dismissal for loss of confidence is a disciplinary sanction, therefore the requirements of Art. 193 Labor Code of the Russian Federation. Otherwise, it cannot be recognized as legal.

IMPORTANT! If dismissal for loss of confidence is carried out on the basis of the employee committing actions not related to the current work (for example, theft in a store), then Art. 193 of the Labor Code of the Russian Federation does not apply.

Thus, the employer does not have the right to impose a penalty without requesting an explanation from the offending employee. Although it is not required by law, it is best to ask for an explanation in writing and obtain a signature from the employee confirming that they have received the request. An employer may dismiss an employee who has not written an explanatory note after 2 working days from the date of its request (a report on this is drawn up). The presence of a written request signed by the employee serves as evidence of compliance with the dismissal procedure. The deadlines for imposing penalties provided for by the above norm should also be observed.

Note: it is not necessary to fire an employee for an act that gives grounds to distrust him. The employer, having received an explanation, can choose a more lenient punishment for the employee and even not punish him at all.

Dismissal is formalized in the general manner according to the rules of Art. 84.1 Labor Code of the Russian Federation. In this case, it will be enough to issue only an order of dismissal; no additional one (to impose a disciplinary sanction) is required.

Download the order form

Before how to fire an employee for loss of trust, the employer should ensure that the situation meets all the necessary conditions:

The employee belongs to the category of servicing valuables.
The fact that he committed guilty actions has been established and proven.
The procedure for imposing disciplinary punishment has been followed.

If at least one of the conditions is missing, in the event of a legal dispute the dismissal will be declared illegal.

Dismissal is nothing more than a break in the employment contractual relationship. They often try to do this peacefully, by mutual agreement. However, there are situations where conflict and termination of employment agreements with an undesirable afterword are inevitable. Undermining trust is a good excuse for ending cooperation, which entails a lot of trouble for employees and risks for companies.

Loss of trust: deciphering the concept and grounds for dismissal

In the relationship between an employee and a manager, in addition to professional, work stages, there are ethical priorities, among which is trust. People should also trust in business relationships. The concept of “labor trust” refers to employees with material and intellectual obligations. This includes managers, cashiers, salespeople, etc. The employer must be sure that the employee is honest and responsible enough to hold his position.

The dismissal process is carried out on legal grounds, which are provided for by the Labor Code of the Russian Federation in Article 81, paragraph 7, part 1. The fundamental reason for the termination of contractual relations is the loss of confidence by the manager in the employees responsible for the company’s financial assets, material assets, goods, which occurred due to their proven guilt actions.

Before dismissing an employee with a record of loss of trust, the following measures are taken:

operational investigation into the violation;
audit of funds, material assets, goods;
requirement of a written explanation of the suspected person.

Without these procedures, it will not be possible to legally dismiss. It is important to remember this and not break the law. Measures such as a reprimand or reprimand may be taken, but are not required.

Persons who are fired due to loss of confidence

HR department employees face a difficult task when processing the dismissal of employees who have lost confidence in themselves. To avoid mistakes, know who is suspended on this issue and who is not. According to labor legislation, the following categories of persons may fall under the article “loss of trust”:

employees serving monetary or commodity assets (reception, storage, transportation, distribution, etc.) on the basis of special laws or written agreements;
civil servants and persons in state and municipal positions (including officials, police officers, prosecutors);
bank employees;
military personnel.

Misappropriation of company money is a good reason for loss of trust

In fact, the basis for dismissal based on loss of confidence is not so common. The article includes:

“unclean” sellers, cashiers, storekeepers;
officials and civil servants convicted of receiving or transferring bribes, as well as hiding income, foreign assets and existing business;
military personnel are bribe takers, caught in treason, and engaged in business activities.

Regardless of the category of employees, the fact of guilty actions is proven. To avoid unnecessary questions from the Labor Inspectorate or judges, the manager should specify in the job descriptions of materially responsible employees the responsibilities for the safety of inventory items and funds. This will make it easier to prove guilt and apply punishment to the employee.

Who cannot be fired due to loss of trust

The list of persons who cannot be fired due to loss of trust includes the following persons:

pregnant women - employment relations with them can be terminated only upon liquidation of the company;
commodity experts, accountants, labelers, controllers - material assets are not personally entrusted to them;
minor employees - they cannot be fired without the consent of the commission on minors’ affairs and the Labor Inspectorate;
employees on vacation or sick leave.

Company management considers chief accountants financially responsible, since they are responsible for the financial flows of the enterprise, distribute and control funds. However, the legislation does not provide for such obligations. Based on this, the chief accountant does not have access to valuables and funds, which means he cannot be fired due to loss of trust. You can terminate your employment relationship with them for other reasons. But in the event of a shortage, the accountant-cashier will be fired for lack of trust on completely legal grounds.

Video: Questions and answers about theft at work and loss of trust

Actions that lead to loss of trust

There is no exact list of employee actions that lead to loss of trust from management in legislative acts. The manager himself determines the value of certain assets and for what employees are responsible. The principles and nuances of financial responsibility are prescribed in employment contracts, job descriptions, and additional agreements.

In practice, the most common culpable actions of responsible persons are:

shortages in inventories;
theft, loss or intentional damage to entrusted property;
weighing;
shortchange;
violation of cash discipline;
improper storage and issuance of inventory items;
overestimation and underestimation of prices for goods;
unauthorized write-off of goods and valuables;
fraud;
giving or accepting a bribe;
abuse of official position;
concealment of a criminal record - active or expunged.

If suspicion arises, management will begin the verification procedure. It is important not to miss the nuances and arrange everything in the right way.

Consequences for the employee

The head of an enterprise, having lost confidence in an employee, can quite legally apply the following disciplinary measures:

making a reprimand is the most loyal method of punishment;
to reprimand is a medium punishment;
make a monetary recovery of the stolen amount or goods and materials;
Dismissal is an extreme form of punishment.

The employer determines the types of punishments for an employee for a labor offense independently, based on the severity of the offense, the identity of the perpetrator, and its significance for the enterprise.

A verbal reprimand and reprimand will have the most favorable effect on the employee. In written form, such methods of influence will be more effective, which will reduce the likelihood of repetition of the offense.

Based on practical situations, it is advisable to document all actual misconduct by employees. Save the memo and request a written explanation. This will help defend the employer’s right in the event of an employee’s appeal to the courts and avoid penalties.

An entry in the work book about dismissal due to loss of trust for employees will entail a lot of unpleasant consequences:

the work experience will be interrupted;
the person will not be able to receive unemployment benefits for 3 months;
It will be impossible to occupy leadership positions.

A direct ban on holding certain positions applies mainly to civil servants. For commercial enterprises, there is no mechanism by which, for example, a thieving cashier will not be able to get a job in another store. But in practice, it will be difficult for him to find a new place to realize his capabilities and talents. Firm owners will be wary of a candidate with a notice in his employment record of dismissal due to loss of trust. You can prepare for constant refusals.

The procedure for recording a violation and creating a commission for investigation

Dismissal due to loss of trust is a rather complicated procedure. Before terminating the employment relationship, the manager needs to prove the employee’s guilt. Otherwise, dismissal based on this fact will be illegal. And this threatens the company’s management with trouble. The collection of evidence begins with an internal investigation, the basis of which will be an internal report on the employee’s misconduct, drawn up, for example, by the head of the department.

Service memo about the fact of violation

The internal memo provides for the following design rules:

At the top, in the left corner is the name of the department that delivers the information.
In the upper right corner the addressee, his position, surname, and initials are indicated.
In the center or near the left border of the sheet in capital letters is the title of the document.
The next line contains the date and index of the report. The date is written in Arabic numerals, for example 02/21/18, the day on which the document was drawn up and signed.
The information that needs to be conveyed to the manager is stated.
In conclusion, the position, surname, initials, and signature of the writer of the note are written (all on one line).

A well-written report on the violating employee will help in collecting evidence for regulatory authorities.

The text of the memo against the employee lists the facts of violations

Explanatory note from an employee

As soon as the manager has received a memo against an unscrupulous employee, the first step is to demand that the latter explain the reason for his actions. This must be recorded in writing. In other words, the employee is asked to write an explanatory note within 2 days after the violation is detected. In case of refusal to give written explanations, a report is drawn up where the employee’s actions are recorded.

If an employee refuses to give an explanation for the violation, a report about this is drawn up

In practice, in situations of employee deception and fraud, management does not pay attention to small details when dismissing employees. In a fit of anger, people are fired indiscriminately and without explanation. Then the company owners try to prove the fraudsters’ guilt in the courts, but, alas, to no avail. Hence the conclusion - every little thing must be recorded in writing. In court, it is the nuances that will help achieve the truth and punish the culprit.

The best option would be a written explanation, preferably in handwritten form, addressed to the manager, indicating the reason for the violation, signature, and date.

If an employee explains the violation with a valid reason, he cannot be considered guilty

An explanatory note must be registered in the office and the date of reception must be marked on it. After becoming familiar with the cause of the violation, the manager makes a decision on disciplinary measures for the employee.

Creation of a commission to investigate the violation

Taking into account the information received about violations and the explanations of the offending employee, the manager issues an order to conduct an internal investigation with the creation of a special commission, the composition of which is determined independently. The number of committee members present must be at least three.

The creation of a commission is necessary for an objective investigation of the violation

The order must necessarily contain:

date and purpose of creation;
Full names and positions of commission members;
the period for conducting the official investigation;
signatures of the commission members.

The order must be signed by the head of the company and certified with a seal.

End of internal investigation

After all the formalities, the commission begins an internal investigation. It is important that the inspection team impartially examine the facts and causes of the violation, assess the losses, identify those responsible, collect a sufficient amount of evidence and determine the degree of guilt. At the end of the internal audit, a report is drawn up, to which written evidence obtained during the work is attached. A verdict rendered by the commission not in favor of the employee is a good reason for dismissal due to loss of trust.

The commission report presents the results of the internal investigation

If it is impossible to investigate the violation on its own, the owner of the company turns to law enforcement agencies. In this scenario, the culprit will be punished much more severely.

Algorithm for dismissal due to loss of trust

Severing labor relations at the initiative of the employer always has pitfalls. Loss of trust is a fairly serious reason for terminating a contract. It is important for a company’s HR specialist not to make a mistake with the wording of the basis, to select the correct article of the Labor Code of the Russian Federation and to correctly draw up the employee’s personal documents.

Notice of dismissal

Having proven the employee’s guilt in an unforgivable act, the manager decides to fire him. The first action will be to send a written notice of dismissal, drawn up in any form, with the company details. A mandatory condition is the personal signature of the employee. If you refuse to sign a warning, a corresponding act is drawn up. It is possible to terminate the contractual relationship with the guilty employee due to loss of trust without a two-week work period.

Agree, you can hardly trust a cashier who stole 100 thousand rubles and whose guilt has been proven to handle cash. It is quite understandable why such workers are fired without working off.

Order of dismissal

The dismissal order is drawn up according to the approved form No. T-8 and is issued to the employee for review against signature within 3 working days. In case of refusal to sign, an act in any form is also drawn up.

The text of the dismissal order is based on an article of the Labor Code

Filling out a work book

The entry in the employee’s work book must completely coincide with the wording in the order. In addition, the HR department employee also fills out the employee’s personal card, making the same entry.

The entry made into the labor record is certified by the seal of the organization, if any. The employee signs the work book, personal card.

The entry in the work book is the same as in the order

Calculated payments upon dismissal

Having terminated the employment relationship with the employee, the manager is obliged to make a full settlement with him, which includes:

wages for hours worked;
compensation for unused vacation;
bonuses, allowances.

There is no severance pay in this case. In addition, compensation for losses of the financially responsible person is withheld from estimated payments in the amount of no more than the employee’s average earnings. If the amount of damage is greater, the procedure for compensation will be determined in court.

Package of documents upon dismissal

On the day of dismissal, the employer issues the following package of documents:

work book;
salary certificate for 2 years before dismissal and for the current calendar year;
information about personalized accounting, insurance experience, accruals to funds;
at the request of the employee - copies of orders of dismissal, employment, extract from the employment record;
certificate 2-NDFL;
certificate of average monthly salary for the last 3 months.

All copies must be certified with a stamp, dated and the note “Copy is correct.” The employer has 3 days to issue the requested documents and certificates upon application of the dismissed person.

Consequences of illegal dismissal for an employer

Having become disillusioned with a particular employee, the employer, in a state of anger, may commit rash actions, severing contractual relations on the basis of lost trust. It is important to calmly request written explanations from the employee, conduct an internal check, take into account the testimony of witnesses, fill out the documents correctly, and issue a calculation. The slightest violation of the established procedure for this dismissal option will create a lot of trouble for the company.

To avoid the consequences of illegal dismissal, at the first stage of the labor relationship, it is necessary to conclude agreements with employees on full financial responsibility, and specify the rights and obligations for everyone in job descriptions. It is possible to terminate employment contracts due to lack of trust only with persons who directly work with funds and inventory items. Firing a person who is not responsible for them is a big mistake. The employee's guilt must be proven. Otherwise, the judicial authorities will recognize the dismissal under Article 81, paragraph 7 of the Labor Code of the Russian Federation as illegal.

In case of illegal dismissal, the court may oblige the employer:

reinstate the victim at work;
pay him moral damages;
pay compensation for days of forced absence;

An illegally dismissed employee has the right to go to court to restore his rights

Arbitrage practice

Lawsuits regarding dismissals for lack of confidence are quite varied. Offended workers are trying to restore their rights and good name. Firm 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 judiciary on both sides. Issues that are subject to study and analysis in court:

classifying the employee as a person to whom the relevant article of the law can be applied, establishing grounds for dismissal due to loss of trust;
the fact of committing a disciplinary offense, administrative or criminal offense related to theft, bribery and other mercenary offenses, giving the employer grounds for loss of confidence in the employee;
compliance with the procedure for dismissing an employee by the employer.

Thus, by the appeal ruling of the judicial panel for civil cases of the Khanty-Mansiysk Autonomous Okrug dated 02.10.2012 in case No. 33–4375/2012 on the appeal of KRS Eurasia LLC against the decision of the Kogalym City Court dated 27.07.2012, which canceled the Order of LLC "KRS "Eurasia" on dismissal, confirmed the legality of the appealed decision on the basis that the employee was not a financially responsible person.

As follows from the case materials and established by the court of first instance, the parties had an employment relationship, the plaintiff worked at KRS Eurasia LLC as the head of the underground well repair workshop, and an agreement on full individual financial liability was concluded between the parties. In fact, the basis for the plaintiff’s dismissal was the fact that the plaintiff signed fictitious waybills. When making a decision, the court proceeded from the fact that the plaintiff is not a person directly servicing monetary or commodity assets; an agreement on full financial liability in itself will not be a confirmation that the employee directly services material assets; it is necessary that the scope of work duties employee, recorded in the employment contract or in the job description, included work with inventory items. The signing of waybills does not indicate the plaintiff’s direct service of monetary or commodity valuables. Thus, the plaintiff, by virtue of his position, does not belong to the category of persons directly servicing monetary and commodity assets, and therefore could not be dismissed on the basis of paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation.

As we see, the law is on the side of the workers. However, dishonest employees are also common. From my experience in trade, I know that collective financial responsibility is divided among all members. One person can steal, but everyone will have to pay for the losses. That is why management should carefully conduct an inspection and identify the culprit. The rest will not be so offended by the unfair punishment. Well, if you can’t do this with your own resources, it would be useful to contact the prosecutor’s office. They will quickly find and bring to justice the culprit.

Video: registers of people fired due to loss of trust

Thus, it is important to understand the importance of labor discipline in enterprises. In order not to get a “wolf ticket” to life, you need honesty, decency, and reliability. Dismissal due to lack of confidence is a procedure that entails a lot of problems for both the employee and the employer. Often the parties do not want publicity and try to part by agreement. But sometimes things get so big that you have to resort to the help of law enforcement agencies and the courts.

Trust is very important not only between close people, but also between employer and employee. If management loses it, it can fire the person from work on its own initiative. The law allows this. The procedure for dismissal due to loss of confidence is in this material.

Termination of an employment contract at the initiative of the employer is enshrined in Article 81 of the Labor Code of the Russian Federation. In addition to direct culpable actions of the employee, the reason for such dismissal may be a loss of trust. This is a fairly rare reason for parting with unwanted employees, and in order to implement it, a number of formalities must be observed. So, how does dismissal due to loss of trust occur?

Candidates for termination of employment contract

Management can express distrust only to responsible employees. That is, for those who hold leadership positions or directly deal with servicing commodity or monetary values. For example, you may no longer trust the honesty of an accountant or salesperson, but you cannot part with a locksmith or plumber for this reason. And there are no subjective aspects in this - everything is clearly stated in clause 7, part 1, art. 81 Labor Code of the Russian Federation. However, such employees may also be protected from dismissal under this article. For example, it is impossible to break off an employment relationship with a pregnant woman in this way (Article 261 of the Labor Code of the Russian Federation) or a minor employee (Article 269 of the Labor Code of the Russian Federation). In addition, employees who are on vacation or sick leave also have immunity, but only until their end.

Evidence and guilt

Management can fire for loss of trust only if it has supporting documents that prove that this particular person served the material assets. For example, such a document could be an employment contract and an agreement on financial liability (Article 244 of the Labor Code of the Russian Federation).

So, the employer has every right to begin the dismissal procedure if the person falls into the required category, and at the same time:

takes or solicits a bribe;
receives kickbacks;
commits any actions that lead to the theft or loss of monetary and material assets, or the threat of such events;
committed a criminal offense or illegal actions, not even related to his official duties (clause 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

Let's consider how to arrange this without violating the law.

Dismissal due to loss of trust: procedure

Statute of limitations

For disciplinary offenses that may cause these extreme measures, certain statutes of limitations are provided:

1 month from the date of discovery of the offense;
6 months from the date of commission of the offense, not counting the time of criminal proceedings;
in the case of an audit of financial and economic activities, 2 years from the date of commission;
1 year from the moment the employer became aware of the commission of an act outside the place of work.

Time of illness or vacation is not included in this period. Any person has the right to appeal his dismissal in court.