Dismissal at will. In simple or on your own? Advantages and disadvantages of communicating with the temporary administration Is it possible to send a simple
Not a step out of the office: the court upheld the dismissal for absenteeism during downtimeThe court pointed out that idle time refers to working time and cannot be used at its discretion. Therefore, employees are required to be on site. During this time, they must perform their duties, not related to the reason for the downtime.
As a result, the dismissal of an employee who did not go to work on idle days was recognized by the court as legal.
In practice, and earlier there was an opinion that during downtime, an employee must be in place. This has been pointed out, for example.
Note that during downtime, employees have the right to stay at home if the employer has allowed. This can be pinned:
in a collective agreement;
Local regulations;
employment contract;
Directly at the disposal of the announcement of downtime.
In order for employees to know exactly whether they need to be on site during downtime, it is best to always indicate this information directly in the order for its announcement.
Documents: Appeal Sverdlovsk regional court dated 06/15/2018 in case N 33-9935/2018
SVERDLOVSK REGIONAL COURT
APPEALS DETERMINATION
Judge Orlova T.A.
Judicial board for civil affairs Sverdlovsk Regional Court composed of:
Presiding Judge Kolesnikova O.G.,
Judges Sorokina S.V., Redozubova T.L.,
Under Secretary B.A.,
With the participation of the prosecutor of the department for ensuring the participation of prosecutors in the civil process of the prosecutor's office of the Sverdlovsk region Privorotskaya T.M.
Tried a civil case in open court
According to the claim of R. to the municipal autonomous institution "Nizhniy Tagil television studio "Tagil-TV" for the recognition of the order of dismissal, reinstatement, recovery of average earnings, compensation for non-pecuniary damage,
According to the appeal of the deputy prosecutor of the Leninsky district of Nizhny Tagil Zh. against the decision of the Leninsky district court of Nizhny Tagil, Sverdlovsk region of 12/18/2017
After hearing the report of the judge Kolesnikova Oh.G., explanations of the prosecutor Privorotskaya T.M., the plaintiff R., the representative of the plaintiff on oral petition T., who supported the arguments of the appeal submission, the explanation of the representative of the defendant B.Oh. (power of attorney N 1 dated 01/09/2018 without limitation of validity), which objected to the satisfaction of the appeal, the judicial board
Installed:
R. filed a lawsuit against MAU Nizhny Tagil Television Studio Tagil-TV (hereinafter referred to as the Institution) to challenge the legality of the dismissal.
In support of the claims, she indicated that from 12/14/2005 she worked for the defendant as the executive editor of Radio Tagil, she was dismissed on 09/11/2017 by order No. The plaintiff considered the dismissal unlawful, since her absence from the workplace during the disputed period was caused by valid reasons. So, on 09/01/2017, upon returning to work after a period of incapacity for work, she was familiarized with the order of 08/07/2017 N 14-p "On the temporary suspension of work", according to which from 00:00 h. 08/12/2017 at 24:00 On 09/08/2017, she was put on idle with the payment of 2/3 of the salary in connection with the election of the Governor of the Sverdlovsk Region and the suspension of the activities of the editorial office of Radio Tagil for the period of the election campaign. Taking into account the fact that Order No. 14-p dated 07.08.2017 did not contain an indication that it was mandatory for her to be at work during the idle period, and also taking into account the practice of work previously established in the Institution during the election period, the plaintiff believed that the presence it is not required in the workplace. During the entire period of her absence from work, the employer did not try to find out the reasons for such absence, and, accordingly, was not interested in finding her at the workplace. In addition, the dismissal was made in violation of the provisions of Part 5 of Art. 192 of the Labor Code of the Russian Federation, since the disciplinary sanction applied to her does not correspond to the gravity of the offense committed. She pointed out that moral damage was caused to her by illegal dismissal.
Based on the foregoing, taking into account the subsequent clarification of the claim, R. asked to declare illegal the order N 88-k dated September 11, 2017 on dismissal for absenteeism, reinstate her at work in her previous position and recover from the defendant average earnings for the time of forced absenteeism from 09/12/2017 to 11/13/2017, as well as compensation for non-pecuniary damage in the amount of 50,000 rubles. In addition, she asked to recover from the defendant in reimbursement of legal costs 20,000 RUB.
The representative of the defendant B.Oh. she did not recognize the claim, insisting on the legality of R.'s dismissal. She indicated that the fact of the absence of the plaintiff from September 4 to 6, 2017 at the workplace was confirmed by the materials of the internal investigation and was not denied by the plaintiff himself. The plaintiff's reference to the optional presence of her at the workplace during the disputed period in connection with the suspension of the activities of the editorial office of Radio Tagila was considered untenable, since the order of 08/07/2017 N 14-p did not provide for the possibility of an employee absenteeism from work during downtime, in connection with which the announcement of idle time does not testify to the validity of the reason for the absence of the plaintiff from work. R.'s arguments about the violation by the employer of the provisions of Part 5 of Art. 192 of the Labor Code of the Russian Federation also considered untenable, since when deciding to bring the plaintiff to disciplinary responsibility, the previous behavior of the plaintiff and her attitude to work were taken into account. In particular, they took into account the fact that R. had previously been disciplined twice for being absent from work without good reason.
The representative of the Administration of Nizhny Tagil, involved in the case as a third party, K. in a written response supported the position of the defendant, asked R.'s claim to be dismissed.
Prosecutor Meshcheryakova O.S. gave an opinion that there were no grounds for reinstatement of the plaintiff at work.
By the decision of the Leninsky District Court of the city of Nizhny Tagil, Sverdlovsk Region dated December 18, 2017, R.'s claims were dismissed.
The prosecutor disagreed with this decision.
In the appeal submission dated 03/13/2018, the deadline for filing which was restored by the court ruling dated 03/29/2018, the deputy prosecutor of the Leninsky district of Nizhny Tagil Zh., referring to the court’s violation of substantive law, asks for a decision to cancel, to adopt a new judicial act in the case. Without disputing the correctness of the court’s conclusion that downtime is not rest time, but is working time during which the employee is obliged to be at the workplace, the prosecutor insists that since Order No. 14-P of 07.08. work" does not establish the obligation of employees to be at the workplace during the period of downtime, the absence of the plaintiff at work from September 4 to September 6, 2017 cannot be regarded as absenteeism. Accordingly, the dismissal of the plaintiff is unlawful, R. is subject to reinstatement at work with the payment in her favor of the average earnings for the time of forced absenteeism.
In objections to appeal Director of the Institution P. considers the appealed decision of the court lawful and justified, asks to dismiss the appeal submission.
A representative of a third party, the Administration of Nizhny Tagil, did not appear at the meeting of the judicial board, which was notified in advance of the place and time of the appeal hearing, taking into account the provisions of Part 2.1 of Art. 113 of the Civil Procedure Code of the Russian Federation, clarifications of the Plenum of the Supreme Court of the Russian Federation, set out in paragraph 16 of the Resolution of December 26, 2017 N 57 "On some issues of the application of legislation governing the use of documents in in electronic format in the activities of courts of general jurisdiction and arbitration courts"(by posting the relevant information on the official website of the Sverdlovsk Regional Court on May 15, 2018).
Judicial Board, guided by the provisions of Article. 167 of the Code of Civil Procedure of the Russian Federation, determined the consideration of the case at this appearance.
Having heard the explanations of the parties, the prosecutor, having studied the case materials, having discussed the arguments of the appeal presentation, objections to it, having checked the legality and validity of the court decision based on these arguments (part 1 of article 327.1 of the Civil Procedure Code of the Russian Federation), the judicial board comes to the following.
As established by the court, it follows from the materials of the case, on the basis of order No. 59-k of December 14, 2005, R. was hired by the Institution as the editor of Radio Tagil, an employment contract No. 20 of December 14, 2015 was concluded with her (l. d 40 - 42).
In accordance with the order of 07.08.2017 N 14-p "On the temporary suspension of work", in connection with the election of the Governor of the Sverdlovsk Region on 10.09.2017 and the suspension of the contract N 30/2017/503 of 11.01.2017, concluded between the All-Russian State Television and Radio Broadcasting Company of the State Television and Radio Broadcasting Company " Ural" and the Institution, for the period of pre-election campaign from 00:00 h. 08/12/2017 at 24:00 On 09/08/2017, downtime was announced by the editorial office of Radio Tagil with downtime paid to the responsible editor R. in the amount of 2/3 of the employee’s salary rate (case sheet 9). R. was acquainted with this order under the signature on 09/01/2017 (case sheet 45).
By order of September 11, 2017 N 88-k, R. was dismissed on September 11, 2017 on the grounds provided for by sub. "a" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, for a single gross violation of labor duties by an employee - absenteeism committed in the period from September 4 to September 6, 2017 (case sheet 6).
Refusing to satisfy the claim of R., the court of first instance, assessing the evidence presented by the parties in aggregate, came to the conclusion that the dismissal of R. was legal, based on the fact that the fact of her absence from September 4 to 6, 2017 at the workplace without good reason found its confirmation during the consideration of the case, the procedure established by labor legislation for applying a disciplinary sanction to an employee in the form of dismissal by the defendant is observed.
The Judicial Board considers such a conclusion of the court to be correct, corresponding to the circumstances established in the case and not contradicting the provisions of the law governing disputed legal relations.
According to Art. 192 of the Labor Code of the Russian Federation, a disciplinary offense is understood as a failure to perform or improper performance by an employee through his fault of the labor duties assigned to him. The disciplinary sanctions that can be applied by the employer to the employee for committing a disciplinary offense include, among other things, dismissal under paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation.
In accordance with sub. "a" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer if the employee commits absenteeism, that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during a working day (shift).
In accordance with Art. 193 of the Labor Code of the Russian Federation, before applying a disciplinary sanction, the employer must request a written explanation from the employee (part 1). A disciplinary sanction is applied no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, on vacation, as well as the time required to take into account the opinion of the representative body of employees (part 3).
When imposing a disciplinary sanction, the severity of the misconduct committed and the circumstances under which it was committed must be taken into account (part 5 of article 192 of the Labor Code of the Russian Federation).
In paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts Russian Federation of the Labor Code of the Russian Federation, it is clarified that when considering a case on the reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.
According to clauses 3.3.1, 3.3.2 of the employment contract concluded by the parties on 12/14/2005, the employee undertakes to conscientiously fulfill his labor duties, orders and orders of the employer and his immediate supervisor, obey the internal labor regulations of the employer, or established by the immediate supervisor of the employee. The following working hours are set for the employee: the duration of the working week is 40 hours, the beginning of working hours is at 9:00, the end is at 18:00, the days off are Saturday and Sunday.
Taking into account the lack of evidence of establishing a different working time regime for the plaintiff, the panel of judges considers it established that September 4, 5 and 6, 2017 were working days for the plaintiff.
The absence from the workplace in the period from September 4 to September 6, 2017 was not disputed by the plaintiff, confirmed by the act of the absence of the employee at the workplace dated 08.09. the name of the director of the Institution (case sheet 51), the conclusion based on the results of an internal investigation (case sheet 53), the time sheet for September 2017 (case sheet 48).
Checking the arguments of the plaintiff about the validity of the reasons for absence from the workplace due to the announcement of downtime, the court came to the correct conclusion that the absence of the plaintiff from work during the disputed period is absenteeism, since the mere fact of temporary suspension of the work of the editorial office on the validity of the reasons for absence from work does not testifies.
In support of her position in the case, the plaintiff referred to the fact that order No. 14-p of 07.08.2017 did not contain an indication that she was required to be at work during the idle period, as well as to the previously established practice in the Institution, when employees during the suspension workers during the election period had the right not to come to work. The court dismissed these arguments of the plaintiff, with which the panel of judges considers it possible to agree.
In accordance with Part 3 of Art. 72.2 of the Labor Code of the Russian Federation, downtime is understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature.
The Labor Code of the Russian Federation does not contain a norm that directly indicates whether or not an employee should be at work during downtime.
However, given the definition of working time given in Art. 91 of the Labor Code of the Russian Federation, as well as after analyzing the types of rest time specified in Art. 107 of the Labor Code of the Russian Federation, the panel of judges finds it correct to conclude that downtime is working time, and not rest time, which the employee has the right to use at his own discretion. Accordingly, during the period of downtime, employees are required to be at their workplaces and fulfill those official duties, which are not related to the reason for the downtime (which, in essence, was confirmed by the plaintiff, indicating in the statement of claim that while at home, she continued to work on future Radio Tagil programs). The right of an employee not to be at the workplace during the downtime period can be enshrined in a collective agreement, local regulations of the employer, an employment contract, as well as directly in the order to declare downtime in the organization.
A similar position on the issue of the need for the presence of workers at the workplace during the idle period was expressed in a letter from the Ministry of Health and Social Development of Russia dated 02.02.2009 N 22-2-2004, prepared by the Department of Labor, wages and social partnership. At the same time, by virtue of clause 6.6 of the Regulations on the Ministry of Health and Social Development of the Russian Federation, approved by Government Decree No. 321 of June 30, 2004 and in force on the date of the preparation of the letter, the said executive authority was empowered to provide legal entities and individuals with clarifications on issues referred to to the area of his activity.
Thus, employees during the downtime period must be at their workplace, unless otherwise provided in the collective or labor agreement, in the local regulatory act, or directly in the order to declare downtime. The absence of an employee at the workplace during the period of downtime without proper authorization by the management is unacceptable and is a violation of labor discipline.
In accordance with the respondent's Internal Labor Regulations, approved by order of the Director of the Institution dated October 11, 2013 N 6, any absence from the workplace, except in cases of force majeure, is allowed only with the prior permission of the personnel management. Absence from work without permission is considered unlawful. In case of unlawful absence from the workplace, the disciplinary measures provided for in these rules are applied. The list of cases when the employer may give permission to leave the workplace is also provided for by the Internal Labor Regulations, in the specified list there is no such reason for the absence of an employee at work as an announcement of downtime at the Establishment.
Since neither local acts of the Institution, nor employment contract the right of the employee to be absent from the workplace during the downtime is not provided, in order N 14-p dated 08/04/2017, an indication that the plaintiff is allowed not to be present at the workplace during the declared downtime is also absent, there are no grounds for absenteeism at work on controversial dates due to the announcement of downtime for the editorial office of Radio Tagil, the plaintiff did not have, and therefore the absence of the plaintiff at the workplace on the days of downtime, if she did not provide evidence of the validity of the reasons for such absence, was reasonably qualified by the employer as a disciplinary offense - absenteeism.
Based on the above reasons, the arguments of the prosecutor’s appeal submission that since Order No. 14-P of 07.08.2017 “On Temporary Suspension of Work” does not establish the obligation of employees to be at the workplace during downtime, the plaintiff’s absence from work from 4 to 6 September 2017 cannot be regarded as absenteeism, are subject to rejection as insolvent and based on a misinterpretation of the law.
provided by Art. Art. 192, 193 of the Labor Code of the Russian Federation, the procedure for bringing an employee to disciplinary liability by the defendant upon dismissal of the plaintiff was not violated, since prior to the issuance of the disputed dismissal order, a written explanation was requested from the plaintiff (case sheet 50), the dismissal order was issued by an authorized person (director of the Institution O.), in compliance with the deadline established by law, i.e. before the expiration of a month from the date of the commission by the plaintiff of a disciplinary offense, the plaintiff was familiarized with the dismissal order on the day of its issuance, about which her signature is in the order.
Contrary to the arguments of the appellant, the requirements of Part 5 of Art. 192 of the Labor Code of the Russian Federation, according to which, when imposing a disciplinary sanction, the severity of the misconduct committed and the circumstances under which it was committed must be taken into account by the employer in this case.
In accordance with sub. "a" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, absence from the workplace without good reason for more than 4 hours in a row during the working day, and even more so for several days in a row (lasting absenteeism), is a gross violation of labor discipline and a sufficient basis for dismissal of an employee. R. had previously been disciplined twice for similar violations of labor discipline, which is confirmed by the materials of the case, in particular, orders to impose a disciplinary sanction on the facts of absence from the workplace without good reason on January 26 and 27, 2016 from 9:00 to 10:00: 00, 07/04/2017 from 15:30 to 18:00 (case file 54, 57). The plaintiff's arguments about the established practice of absenteeism of the employees of the Institution for work during the downtime in connection with the elections are not supported by any evidence, the defendant did not recognize this circumstance during the consideration of the case.
In this situation, the conclusion of the court on the validity of the application by the employer to the plaintiff for the disciplinary offense committed by her of the most severe measure of disciplinary action (dismissal) is correct.
The appeal does not contain other arguments that would have legal significance for resolving the dispute and needed verification, refuted the correctness of the court’s conclusions and could affect the assessment of the legality and validity of the contested judicial act.
Violations of the rules of procedural law, which are in accordance with Part. 4 Article. 330 of the Civil Procedure Code of the Russian Federation as an unconditional basis for canceling the decision of the court of first instance, the court did not allow.
Guided by Art. 328 of the Civil Procedure Code of the Russian Federation, Judicial Board
Determined:
The decision of the Leninsky District Court of the city of Nizhny Tagil, Sverdlovsk Region, dated 12/18/2017, is left unchanged, the appeal presentation of the Deputy Prosecutor of the Leninsky District of the city of Nizhny Tagil, Zh., was not satisfied.
presiding
O. G. KOLESNIKOVA
S.V.SOROKINA
Instruction
general characteristics downtime is defined as a temporary stoppage of work, that is, until the financial, technical or economic situation improves. Downtime is not a vacation and therefore employees must be ready at any time for work.
Editorial federal law number 90-F3 obliges employees to pay two-thirds of the tariff rate or salary for the entire downtime. Since wages will be paid, the employer has the right to involve employees in idle time in other types of work, for example, cleaning the territory, painting machines or carrying out general cleaning at the enterprise. But this can be done only with the written consent of the person involved.
Labor legislation does not provide for a two-month notice of downtime, as this circumstance may arise unexpectedly. But to notify all employees by order is the direct responsibility of the employer. There is no unified form of order for these cases, so it is issued in any form. The order must indicate the reason for the downtime, the period and full name of the employees or the number of the structural unit that will not work due to the circumstances. If no one will work at the enterprise, then specific names or departments do not need to be indicated.
Also in the order you need to indicate the amount of payment during the downtime period. The employer has the right to add a clause to the order that all the time that the downtime period takes, employees must be at the workplace.
The responsible employee for maintaining the time sheet is obliged to put down all days of downtime in the document for recording working hours with the code "RP" or 31.
For the downtime period, the employer may offer employees another job, but not more than one month. The position must have the same qualification level as it was before the temporary suspension of the enterprise or division. An order for a temporary transfer is filled out in the form T-5 or T-5a.
Sources:
- easy to work
- Legal gaps in downtime regulation
For cargo transportation by car the waybill and bills of lading are used as documents, which are an integral part of the display of the work performed by the driver. Excessive idle time of vehicles at the customer is calculated on the basis of the data entered by the responsible person in column 32 of the TTN.
You will need
- - bill of lading
Instruction
The bill of lading has two sections. The first of them: "Commodity". In this section, information about the cargo is filled in: cargo ("" and "gross"), the number of pieces, etc. According to the data entered in this section, inventory items are written off from the consignor, and they are credited to the balance of the consignee.
The second section: "Transport". It is designed to enter into it information reflecting the work of the customer's car. This section contains information about the time of arrival to the customer: to the consignor - for loading, to the consignee - for unloading.
In the section TTN "Other information", in column 32, the downtime of the vehicle during loading or unloading is indicated. The data is confirmed by the signature of the responsible person and certified by a seal.
Delays along the way that may occur during the transportation of goods in connection with the repair or commission of an accident by any of the participants in the movement are indicated in the "Special Marks" section of the waybill and are confirmed by a signature indicating the position and rank of the traffic police officer. A note about a downtime on the way can also be certified by specialists of the road repair section, indicating the position and surname, as well as the contact phone number of the enterprise.
Related videos
Downtime is a temporary stoppage of the operation of an enterprise, which can be caused by various reasons (Article 72.2 of the Labor Code of the Russian Federation). The legislation does not give clear explanations about documenting downtime, but its payment is clearly indicated in article 157 of the Labor Code of the Russian Federation, as well as keeping records of direct downtime.
Instruction
The employer always seeks to relieve himself of responsibility, downtime must be recorded and documented as its reason. To do this, you need to make an order. In the header of the order, enter the name of the organization in accordance with the constituent documents or last name, first name, patronymic individual in accordance with an identity document, if the organizational and legal form of the enterprise is an individual entrepreneur.
Enter the name of the city where your company is located. Write the date of the order.
Enter the name of the document in capital letters, give the order a number.
Specify the subject of the order, which in this case corresponds to the downtime announcement. Enter the reason for the downtime at the enterprise.
Write down the start date and end date of the downtime. In the event of an outage extension, a new order. If the downtime lasts less than the specified period, an administrative document is also drawn up.
In the administrative part of the document, enter the last names, first names, patronymics of employees for whom downtime is declared, indicate the positions they hold in accordance with staffing.
Employees must be present at the workplace even during downtime at the enterprise. If the order states that employees have the right not to come to work during downtime, then employees may not go to work. workplace.
The recall of employees is carried out by order of the head, drawn up along with administrative documents.
The basis for issuing this order is a memo from the head of the structural unit addressed to the director of the enterprise.
The right to sign the order has the director of the organization, who indicates his position, surname, initials. Certify the document with the seal of the company.
Familiarize with the order the employees listed in the document against signature.
Sources:
During the financial crisis, for various reasons, the company may experience downtime. It should be documented in accordance with labor legislation. Downtime must be paid to employees if it happened due to the fault of the employer or for reasons that are beyond the control of the employees of the organization and the employer.
You will need
- - Labor Code of the Russian Federation;
- - documents of employees;
- - forms of relevant documents;
- - a pen;
- - seal of the organization;
- - company documents.
Instruction
If downtime should be declared in a separate structural unit, then its head must write a memorandum addressed to the director. Its content should state the reasons that served as a downtime. The note must indicate the date from which it occurred. The director needs to consider the document and, in case of a positive decision, put a resolution on it, which should contain the date and signature of the first person of the company.
Make an order in any form. In the header of the document, write the name of the organization in accordance with the charter or other constituent document or the surname, name, patronymic of an individual, if the OPF of the enterprise is an individual entrepreneur. Enter the title of the document in capital letters. Specify the number and date of the order. The subject of the document must correspond to the announcement of downtime for the enterprise as a whole or for a separate structural unit. The reason for issuing an order may be short delivery of material, lack of orders, and others.
In the content of the order, indicate the last names, first names, patronymics of the employees for whom the downtime is declared, the names of their positions, structural divisions. During downtime, employees cannot perform their labor function prescribed in the contract. If the downtime occurred due to the fault of the employer or reasons beyond his control, then downtime days are paid to specialists in the amount of 2/3 of the salary, the average salary (if it is announced, for example, due to the lack of applications from customers), in full (when the employer is at fault).
Specify a start and end date for the downtime. If it ends earlier or later than the date written in the order, then the director should issue a new order in which to enter the actual date of its end.
If the downtime occurred due to the fault of the employee, then this period is not paid to him, but an administrative penalty is imposed in the form of a fine.
During downtime, the employee cannot perform his job duties, so the employer has the right to allow employees not to be present at the workplace during the downtime. This fact should be indicated in the order.
Assure the order with the seal of the company, the signature of the director of the organization. Familiarize employees with the document. Employees should put a personal signature and date familiarization.
Sources:
- How to apply for and pay for downtime at the enterprise
The labor legislation of the Russian Federation provides for three options for downtime: due to the fault of the employee, due to the fault of the employer, and for reasons beyond the control of both. The main difference between downtime due to the fault of the employee is that during this period he is not supposed to accrue wages. Therefore, the correct registration of downtime due to the fault of the employee, as the most conflict situation, is especially important in order to protect the employer from problems with the labor inspectorate and litigation.
You will need
- - an act confirming the guilt of the employee in idle time;
- - reflection of downtime in the forms T-12 and T-13;
- - an order to transfer an employee to idle time.
Instruction
As soon as you become aware of the need to transfer the employee to idle time due to his fault, draw up an act in which you document and record in as much detail as possible the circumstances that led to the downtime and testify to the fault of the employee. For example, if he broke the machine due to an intentional or negligent violation of technology.
If necessary, involve a specialist who is authorized to make an appropriate conclusion. The law does not require an act or expertise. But if the employee goes to court or to the labor inspectorate, with these documents you will have a better chance of proving your case.
Regardless of the reasons for downtime, its fact must be reflected in unified forms T-12 and T-13, used by non-budgetary organizations to record working hours and calculate wages. Downtime due to the fault of the employee is reflected in them with the digital code "33" or the letter "VP".
Prepare an order to transfer an employee to downtime due to the fault of the employee. Strict legislative form this document is not available, an arbitrary one is quite suitable. However, it is desirable to reflect all important circumstances in it in as much detail as possible.
The period of downtime is not limited by law. In practice, it is optimal to reflect in the order the approximate time (for example, one week to repair or replace equipment disabled by an employee) that will be required to eliminate the causes of downtime. If necessary, you can always extend the downtime or, if possible, withdraw the employee from it ahead of schedule. To do this, simply prepare a new corresponding order.
Sources:
- what is a simple worker
Temporary suspension of the work of the enterprise, or downtime, must be formalized in accordance with the instructions of Article No. 157 of the Labor Code of the Russian Federation, so that in the event of an inspection by the labor inspectorate, no violations on the part of the employer are revealed.
The employer fired the employee for absenteeism during downtime. The courts sided with him.
Downtime is a temporary stoppage of work for various reasons (for example, for economic reasons). It is not always obvious how to organize employees during downtime. The courts have provided a number of clarifications.
Does an employee need to be at work during downtime?
The employee did not show up for work due to downtime. The employer regarded it as absenteeism. On this basis, the dismissal of the employee was issued. The latter did not agree with the decision of the employer and went to court. However, the court upheld the employer.
The reasoning of the court was as follows: downtime is working time. During downtime, employees do not have the right to independently decide whether they need to be at their workplaces. The employer has the right to involve employees in other duties that can be performed during a forced break. That is, absence from the workplace during downtime can be considered absenteeism.
At the same time, the employee may stay at home with the permission of the employer. Exemption from work during downtime can be fixed in these acts:
- Collective agreement.
- Acts for internal use.
- Labor contract.
- Forced break order.
Problem
The problem is that I simply have no one to apply to. The company has no employees. All employees were released from their jobs and therefore the plant is closed. My direct boss refused to fire me on the same day when the downtime ends, and makes me work for 2 weeks after the downtime. And I don't know what to do.
Solution
Hello!
You need to quit correctly:
The fact is that an employee has the right to apply for dismissal at any time - vacation, illness, downtime.
And the countdown of the notice period will begin from the next date after the date the employer receives the letter of resignation.
So, apply for a layoff during the downtime period, and then the date of dismissal can either fall during the downtime period, or it can go beyond the downtime period.
The law does not establish a restriction on how the employee must submit this application, that is, it can also be sent by mail - by registered mail (Letter of Rostrud dated 05.09.2006 N 1551-6).
You can apply in the following ways (your choice):
Through the secretariat, the personnel (personnel) department of the organization, so that on the second copy you are given an incoming number and a mark official about the acceptance of this application;
By registered mail with registered acknowledgment of receipt and description of the attachment;
Through a courier service;
From the mail (we are talking about the post office, main post office) by fax or e-mail (if there is an official e-mail address).
If it is by registered mail, then you need to understand that the countdown of the notice period will begin from the date following the date of delivery of this application. The delivery date will be indicated on the return receipt, which will be returned to you at the address.
Again, you can apply for your resignation on the day you go to work, i.e. after downtime.
But in order not to "work off", as you all write for two weeks, then simply indicate in the Application good reasons or that the employer violates the Labor Code of the Russian Federation in relation to you.
Good reasons must be documented, and violations of the Labor Code of the Russian Federation in relation to you must be proven.
For example, a good reason that the plant has been idle for a long time, this is proved by an order for idle time, or non-payment of salary, also a good reason, and a violation of the Labor Code of the Russian Federation.
If you provide valid reasons or violations, then you will be required to be fired on the date that you indicate in the application, for example, this may be the date you return to work after downtime.
So, you are an employee of a bank (perhaps another organization where they do not need excessive labor force) and the good guys from the interim administration no longer really need your services. At the same time, there is no guarantee that sooner or later you will suddenly not be needed. In this situation, in order to save a lot, the management offers either to write a statement and leave of their own free will (spoiler: by no means!), Or go into idle time.
Perhaps, as was the case in my case, they will not offer anything at all. But after a flurry of work in the early days, when it was necessary to collect a bunch of documents, make inventories, make transfer certificates, over time, the workload drops sharply, which, in conditions of the strictest discipline, when they do not give freedom of movement, you also want to go into idle time.
What are the features of this regime from the point of view of the worker? First of all, payment for downtime is determined by article 157 Labor Code RF. From the point of view of the law, there are two regimes - through the fault of the employee and through the fault of the employer. In the first case, 2/3 is paid from salary, in the second case - 2/3 from average earnings .
As a careful and close study of the forums has shown, no administration, on its own initiative, admits downtime to be its own fault.
There were cases when, under the pressure of threats of going to the labor inspectorate or to the court, they changed their minds. Complaints about the actions of the interim administration are a separate, very interesting topic. What are they substantiating? They need to save. They say that the actions of the employees led to the revocation of the bank's license.
- The most important thing is freedom! You don't have to go to work anymore. "Hatching" from 8 to 17 with care for signature in the magazine is also no longer necessary.
- Money is paid. Not big, but, believe me, it's better than in the case of voluntary dismissal and problems in the labor market.
- Communication with employers is not lost - it is quite possible to be aware of the processes taking place in credit institution. In our case, there was a parallel litigation with creditors and a decision on further actions was a very important issue.
Here's my downtime calculation sheet for you to review:
The disadvantages of downtime can be quite noticeable:
- Significant drop in income. Downtime is not beneficial for those who have a very significant variable part of their earnings. That is, if you usually paid large bonuses, you can forget about them. In fairness, it should be pointed out that the new management no longer provides for any bonuses for the remaining employees. So you need to count not from “warm” times, but from what is required by the contract. No other way.
- According to the rules, they can be called to work at any time. This is the right of the administration. Moreover, “at any moment” means not only a day, but also an hour. This is motivated by the fact that if the employee were, for example, busy at the factory, in his case, “idle” is the ability to sit next to the machine and do nothing, because the machine, for example, broke down. Kind "uncles" from the administration, as a rule, allow downtime at home.
- No one will pay for short-term calls.
The next question is how to knock yourself out best conditions. Such, in which they pay according to the average (simple due to the fault of the administration), while they do not annoy with unnecessary calls to work and do not load with anything superfluous. Of course, in the presence of appropriate personal qualities, everyone is quite able to "push" this issue with the administration on their own. In case of any doubt, it will not be superfluous to find a lawyer or, more precisely, a lawyer who specializes in labor disputes. In this case, it will be much easier to ensure the compliance of management in matters regulating downtime.