Dismissal for a system of violations in Belarus
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- Fixing the fact
- We take written explanations
- We issue a dismissal order
- Familiarization of the employee with the order
- Trade Union Notice
- Filling out the work book
- Filling out a personal file
- Settlement with an employee
- Issuance of a work book
- If the employee is on the military register
Dismissal for systematic non-fulfillment by an employee without a valid reason of the obligations imposed on him by an employment contract or internal labor regulations (IVTP) - in short, dismissal “for the system” - is quite common in practice and is one of the possible disciplinary measures applied to an employee.
However, let us remind you that dismissal is the most "terrible" of all disciplinary measures (for an employee, it is so). Dismissal "for the system" will definitely not decorate an employee's work book, so you always need to keep in mind that an employee will almost certainly challenge such a dismissal in court (because he has nothing to lose: when hiring another employer, a labor record will not give the employee attractiveness in the eyes of that employer).
Taking into account the above, it is important to remember that dismissal “for the system” is called so for a reason, because for dismissal “for the system”, a number of conditions must be met.
Conditions for dismissal "for the system" of violations
- the employee did not fulfill (improperly performed) his duties, which are enshrined in the employment contract or in the PTP, thereby violating labor discipline;
- the employee has not fulfilled (improperly fulfilled) his duties already again, i.e. this is at least the second violation since hiring for this employer;
- for a past violation of labor discipline, the employee has already been brought to disciplinary responsibility, i.e. any of the disciplinary measures was applied to the employee. Not to be confused with other measures of influence that are not disciplinary measures;
- the disciplinary measure previously applied to the employee has not been extinguished or canceled ahead of schedule. Let us remind you that if, within 1 year from the date of application of the disciplinary sanction, the employee is not subject to a new disciplinary sanction, he is considered not subject to disciplinary sanction, i.e. the disciplinary sanction is considered extinguished. The disciplinary sanction either after the specified period is repaid automatically without issuing an order from the employer, or is canceled ahead of schedule by the order of the employer;
- the employee has no valid reason for not performing his duties. When the employer takes written explanations from the employee, the employee can indicate various reasons for his misconduct, and, of course, he may feel that they are valid. But in the end, the decision is up to the employer: whether to recognize the reasons as valid or not.
What violations can be fired "for the system"
You can be fired for any violation of labor discipline. Violation of labor discipline in the understanding of the courts is illegal, guilty non-performance or improper performance by an employee of his job duties.
Examples of violations:
- absence of an employee at work without a valid reason;
- being, without good reason, not at your workplace, but in other premises of the organization;
- premature departure from work;
- refusal without good reason from a trip on a business trip;
- absence from work on weekends and holidays, if the employee is legally involved in work;
- refusal or evasion, without good reason, from undergoing medical examinations by employees of certain categories in the prescribed manner during working hours;
- refusal to instruct, train and test knowledge on labor protection issues;
- other violations of labor discipline.
Step 1. Preparation of documents for disciplinary action in the form of dismissal
Recall that the general procedure for bringing an employee to disciplinary liability, which is a little simpler, and the preparation of the necessary documents, is discussed in the article “Disciplinary responsibility and sanction».
Systematic non-fulfillment by an employee without good reason of the obligations imposed on him by an employment contract or internal labor regulations is a disciplinary offense. And for a disciplinary offense, the employee who committed it is brought to disciplinary responsibility.
In case of dismissal "for the system", the dismissal will be a disciplinary measure.
Because for dismissal "for the system", at least a repetition of the employee's disciplinary offenses is required, then before drawing up documents to bring an employee to disciplinary responsibility for a new offense in the form of dismissal, make sure that the employee was properly disciplined for the old offense, the disciplinary sanction for the old misconduct was not extinguished or was not removed ahead of schedule, and the employee was familiarized with the order to impose a disciplinary sanction for the old misconduct. In general, all documents on bringing an employee to disciplinary responsibility for an old misconduct should be in order.
Step 2. Recording the fact of repeated violation of labor discipline by the employee
The fact of repeated violation of labor discipline by the employee must be recorded.
Proofs of the commission of a disciplinary offense may be memoranda, acts of violations drawn up in accordance with the established procedure, entries in time sheets, materials of inspections, audits carried out by higher organizations in the order of subordination, as well as state bodies.
In practice, most often the fixation of a disciplinary offense is carried out by drawing up memo an appropriate official (usually the employee's immediate supervisor).
In the memorandum, in the introductory part, we indicate the basis for drawing up the act (facts and circumstances of the employee's misconduct), in the main part - the conclusions (for example, “disciplinary measures were previously applied to the employee, ... I propose to create a commission to conduct an inspection ...., Involve the employee in disciplinary responsibility in the form of dismissal for systematic ... ".
Do not forget that we keep ordinary memoranda for 3 years.
Step 3. We take written explanations from the employee
Usually, in practice, the employee provides written explanations to the employer about what happened after the oral appeal to the employee with such a request. But you can also play it safe by providing the employee for review written notice of the need to give written explanations (the employee makes a note in the document that he is familiar, indicates the date and puts down a signature).
This step (taking written explanations from the employee) is mandatory when you fire an employee “for the system” (and in any other cases when you dismiss an employee for a defamatory circumstance).
This is done in order for the employee to provide his vision of the situation, indicate the circumstances of the misconduct, good reasons for its commission. The explanations received from the employee can be of great help in the future when the employer conducts a check on the fact that the employee has committed a misdemeanor. The ideal situation is when the employee admits that he has committed a misconduct and admits his guilt. This greatly simplifies the dismissal procedure.
If the employee refused to give written explanations, this is drawn up employee refusal to provide written explanation.
We store the employee's explanations (the statement of refusal from the written explanation) 5 years.
If the employer still did not request written explanations from the employee, in the future (if the employee goes to court) this will not entail the cancellation of the disciplinary sanction in the form of dismissal, if there is evidence that the employee has committed a disciplinary offense. But in practice, we recommend that you remember to take written explanations from the employee.
Step 4. We check the violations committed by the employee
Usually, after the memorandum and written explanations of the employee, the employer issues an order on the appointment of a person responsible (creation of a commission) for the inspection. It is better to create a commission (one chairman and two members of the commission), which will draw up an inspection report.
In the introductory part of the act, we indicate the basis for drawing up the act, constituting the act and the persons present at the same time, in the main (ascertaining) part we indicate the established facts (for each fact a separate paragraph), conclusions.
We keep the act (memo) for 5 years.
Step 5. The employer issues an order to dismiss the employee
Dismissal order due to the employee's systematic failure to fulfill his obligations without good reason, it is drawn up within 1 month from the date of detection of a repeated violation of labor discipline by the employee, not counting the time of the employee's illness and (or) his stay on vacation.
Compliance with the terms for imposing a disciplinary sanction is MANDATORY (see article «Disciplinary responsibility and sanction»).
As a basis, we indicate in the order:
memo (for repeated offense);
explanations of the employee (for repeated misconduct);
inspection report (memo) (for repeated offense);
a disciplinary order (for an old offense).
Step 6. The employer acquaints the employee with the order against signature
The employee is familiarized with the order within 5 days (but no later than the day of dismissal), not counting the time of the employee's illness and (or) his stay on vacation.
If the employee refuses to get acquainted, this is drawn up the employee's refusal to read the dismissal order.
Step 7. Notify the union about the dismissal of the employee (at least 2 weeks before dismissal)
We do this step if there is a trade union. If there is no trade union, let it go.
In the notification, we indicate, in addition to the grounds for dismissal (according to paragraph 4 of Article 42 of the Labor Code), also the essence of the violation of labor discipline.
Trade Union Notice in this case it means simply to inform that the opinion of the union does not matter.
But very rarely (this is when the collective agreement, the agreement stipulates that for dismissal "for the system" it is necessary to obtain the consent of the trade union) it is necessary not only to notify the trade union of the dismissal, but to obtain consent from the trade union. In this case, the principle "no consent of the trade union - no dismissal of the employee" applies. Fire an employee without the consent of the union - the employee will be reinstated at work through the courts.
! The union can be notified even before the dismissal order is issued.
To avoid problems, do not skip this step (and also respect the notice period). Otherwise, if the employee goes to court, the judge will change the date of his dismissal so that the employment contract is terminated upon expiry of the statutory notice or warning period (i.e., the court will not reinstate the employee, but for the period for which, due to the change in the date of dismissal the contract will be extended, the employer will have to pay the employee salary as for forced absenteeism).
Step 8. Enter the dismissal record in the employee's work book
The wording “dismissed for systematic failure to fulfill his job duties in accordance with clause 4 of article 42 of the Labor Code” is introduced.
The employer also introduces the employee to dismissal record in the work book (if the company maintains a personal card for the employee and the card contains a column for such familiarization).
Step 9. The employer attaches a copy of the termination order to employee's personal file, the personal file is transferred to the archive.
Step 10. The employer makes settlements with the employee no later than the day of dismissal
Pays the employee a salary, compensation for unused vacation.
Step 11. The employer gives the employee a work book on the day of dismissal.
The employee signs for the receipt of the work book in the book for registering the movement of work books and inserts to them.
Step 12. If the employee is on the military register
Employer сообщает about dismissal to the military registration and enlistment office at the place of residence of the employee. The notice of dismissal of the employee is sent to the military registration and enlistment office within 1 week. Next, the employer makes dismissal note in the personal military registration card of a person liable for military service.
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