We fire an employee for an immoral offense: algorithm and documents. Separate grounds for dismissal of teachers

For committing an immoral offense, only employees performing educational functions (teachers, teachers, mentors, educators, nannies and other persons engaged in educational activities) can be dismissed. Employees performing only technical and auxiliary duties (watchman, driver, caretaker, accountant) cannot be dismissed on this basis (clause 46 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 N 2).

The concept of "immoral offense" is not defined in the legislation. Therefore, the employer independently decides which offense should be considered immoral. In practice, petty hooliganism, the use of alcoholic beverages in public place, involving minors, fighting, cruelty to animals, drug use, swearing in the presence of minors, etc.

For dismissal on the indicated grounds, it does not matter where the offense was committed (at work or at home) (paragraph 46 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 N 2) and whether the children were witnesses to its commission.

If an immoral misconduct was committed at work in the performance of a labor function, then upon dismissal one should be guided by the general rules for the application of a disciplinary sanction.

If the misconduct bears signs of a crime, then the employer has the right to contact the law enforcement agencies, but his decision will be enough for dismissal.

Important! The application of punishment in the form of dismissal in this case is only the right of the employer. Therefore, he may confine himself to a reprimand or remark, or not to apply a penalty to the employee at all.

Practice situation

What measures should be taken by the school administration to discipline teachers for the use of obscene language?

The management can apply disciplinary measures to the employee, for example, in the form of a reprimand or dismissal, subject to the observance of the procedure established by the law.

In accordance with paragraph 47 of the Resolution of the Plenum of the Armed Forces of the Russian Federation, if an immoral offense was committed by an employee at the place of work and in connection with the performance of his labor duties, such an employee may be dismissed from work on the grounds provided for in paragraph 8 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, subject to the procedure for the application of disciplinary sanctions established by Art. 193 of the Labor Code of the Russian Federation. It should also be borne in mind that according to paragraph 2 of Art. 55 of the Law of the Russian Federation of 10.07.1992 N 3266-1 "On Education" disciplinary investigation of violations by a teacher educational institution the norms of professional conduct and (or) the charter of this institution can only be carried out on the basis of a written complaint against it. A copy of the complaint must be given to the teacher. After receiving a parental complaint, the principal should establish a committee of inquiry to investigate the incident. The commission should demand explanations from the teacher, interview students whose parents wrote complaints. If the fact of using obscene language is confirmed, then the employer will have the right to dismiss the teacher.

Registration of the fact of committing an immoral offense

There is no unified document that must be drawn up upon discovering the fact of committing an immoral offense. In practice, this fact is recorded in a memorandum of the person who identified it. If there are several witnesses, then an act should be drawn up. The memo or act must reflect:

Surname, name, patronymic of the employee who discovered the fact of the misdemeanor;

The circumstances under which the offense was committed;

The date and time of the commission.

If the employees of the organization received information about the unlawful action directly from law enforcement agencies or from third parties, then it is not necessary to issue a memorandum.

On the basis of these documents, the employer initiates an official investigation, the task of which is to identify the guilty person.

Some immoral misconduct may carry signs of a criminal offense or an administrative offense, the culpability of the employee is determined by the court.

The commission of a criminal offense can be considered a sufficient basis for the application of a penalty in the form of dismissal. Copies of the verdict or resolution on an administrative offense (if any) are evidence of the fact that the employee has committed an immoral offense.

Creation of a commission to investigate the fact of committing an immoral offense

A commission to investigate the employee's immoral misconduct should be created regardless of where the immoral misconduct was committed.

An order is issued on the formation of the commission, which indicates the names and positions of the employees included in its composition, the purpose and date of the creation of the commission, the period of its validity (it may not be limited to a specific case), as well as the powers of the commission.

The following tasks are set before the commission of inquiry into the fact of committing an immoral offense:

Establishing the circumstances of committing an immoral offense, including the time, place and method of committing it;

Identification of persons directly guilty of committing an immoral offense;

Identification of the reasons for the misconduct;

Determination of the possible measure of punishment for a person who has committed an immoral offense.

The commission has the right to demand explanations from employees suspected of committing a misconduct, and if they refuse to provide explanations, draw up an appropriate act. If such explanations are received during the investigation, then it is no longer necessary to re-demand them when imposing a penalty.

It is necessary to familiarize all employees included in it with the order on the creation of the commission. It is not necessary to introduce him to the employee in respect of whom the investigation is being conducted, since the legislation does not contain such a requirement.

Registration of the decision of the commission to investigate the fact of committing an immoral offense

The results of the commission's work are reflected in the corresponding decision (act). The unified form of this document has not been approved, so the employer can develop it independently. The act needs to reflect:

Names and positions of all members of the commission;

Date, exact time and the place of drawing up the act;

The basis and timing of the investigation;

List of activities (briefly);

Time, place and circumstances of the offense;

The reasons and conditions for the commission of the offense;

Surnames, names and patronymics of the perpetrators and the degree of their guilt;

Proposed penalties (taking into account the personal and business qualities of the perpetrators) or further action.

If the immoral misconduct was committed not at work, then it is indicated how the employer became aware of this (complaint from neighbors, police appeal, etc.).

In the event that an employee commits a crime or an administrative offense, the verdict or ruling of the court, as well as of another body on the application of administrative punishment, is evidence of the commission of an immoral offense and the results of their study by the commission are reflected in the decision.

In addition, the act may contain other information.

The decision is signed by all members of the commission. It is necessary to familiarize the employee guilty of committing an immoral offense with it, against signature. In case of his refusal or evasion from familiarization, an appropriate act is drawn up.

All collected evidence of the commission of an immoral offense (memoranda, written testimony, acts, complaints from victims and other documents, including photographs, videos, printed materials (if the case has become public knowledge)) are attached to the decision of the commission.

Obtaining an explanation from an employee who has committed an immoral misconduct

Before issuing an order on the application of a disciplinary sanction in connection with the commission of an immoral offense, a written explanation must be required from the employee (Article 193 of the Labor Code of the Russian Federation). The Labor Code of the Russian Federation does not specify in what form such an explanation should be requested. Therefore, if the employee is ready to compose explanatory note, a written requirement can be omitted. If the situation is clearly of a conflicting nature, then it is better to issue this requirement in writing and familiarize the employee with it against signature. If he refuses to sign, it is necessary to draw up an appropriate act.

If, after two working days from the date of the request, the employee has not provided an explanation, then a corresponding act is drawn up (Article 193 of the Labor Code of the Russian Federation). In the presence of such an act and a document indicating that an explanation was requested from the employee, the issuance of an order (order) to terminate (terminate) the employment contract is possible without an explanatory note (Article 193 of the Labor Code of the Russian Federation).

Execution of an order on the application of a disciplinary sanction in the form of dismissal and an order (order) to terminate (terminate) an employment contract with an employee for committing an immoral offense

Dismissal for committing an immoral offense is one of the forms of disciplinary action (part 3 of article 192 of the Labor Code of the Russian Federation). In accordance with Art. 193 of the Labor Code of the Russian Federation, the application of a penalty must be formalized by an order (order) of the employer. Thus, before issuing an order for the dismissal of an employee, it is necessary to draw up an order on the application of a penalty to him.

How to correctly draw up an order on the application of a penalty to an employee? For more details, see clause 1 of this material.

There is no unified form for such a document, so the organization develops it independently. The order must reflect the following information:

Surname, name, patronymic of the employee;

Employee position;

Structural unit where the employee works;

An offense committed by an employee, with references to violated clauses of the contract or job description and on documents confirming this violation;

The circumstances of the misconduct, the degree of its severity and the employee's fault.

As a basis for issuing an order, the details of an act, memorandum or other document fixing the misconduct, an employee's explanatory note, or an act on refusal to provide explanations are indicated.

After issuing an order on the application of a penalty in the form of dismissal and familiarizing the employee with it, it is necessary to draw up an order (order) to terminate the employment contract (unified form N T-8, approved by the Resolution of the State Statistics Committee of the Russian Federation of 05.01.2004 N 1). It must be indicated that labor relations are terminated in accordance with clause 8, h. 1, Art. 81 of the Labor Code of the Russian Federation in connection with the commission of an immoral offense. In the column "Basis", the details of the order on the application of a disciplinary sanction should be reflected.

It is necessary to familiarize the employee with the order against signature. If he refuses to affix his signature, an entry is made in the order: "I am familiar with the order, I refused to sign" or "It is impossible to acquaint with signature" (part 2 of article 84.1 of the Labor Code of the Russian Federation).

Terms of dismissal of an employee for committing an immoral offense

If an immoral misconduct was committed at work, then the employee can be dismissed no later than one month from the moment this fact was revealed, but no later than six months from the date of the misconduct. The day of discovery is the day when the employee's immediate supervisor became aware of the commission of an immoral offense.

If the immoral misconduct was committed not at the place of work and not in the performance of labor duties, then the dismissal of the employee is not a disciplinary measure, the application of which is limited in time in accordance with Art. 193 of the Labor Code of the Russian Federation. In this regard, dismissal can be made at any time, but no later than one year from the moment the misconduct was discovered (part 5 of article 81 of the Labor Code of the Russian Federation and paragraph 47 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

Registration of a work book upon dismissal for committing an immoral offense

Information about the dismissal is entered in the work book, while it is indicated that the employee is dismissed for committing an immoral offense on the grounds of clause 8, part 1 of Art. 81 of the Labor Code of the Russian Federation. Upon receipt of a work book, he must sign on his personal card and in the book for registering the movement of work books and inserts in them (clause 41 of the Decree of the Government of the Russian Federation of 04.16.2003 N 225 "On work books").

Registration of a personal card upon dismissal for committing an immoral offense

A record of dismissal for committing an immoral offense on the grounds of clause 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation. Upon receipt of the work book, the employee must sign a personal card (clause 41 of the Decree of the Government of the Russian Federation of 04.16.2003 N 225 "On work books").

Payments to be made to an employee upon dismissal for committing an immoral offense

When an employee is fired for committing an immoral offense, he needs to pay wages for the period worked, compensation for unused vacation and other amounts due (bonuses, etc.). The payment is made on the day of dismissal, which is recognized as the last working day (Articles 84.1 and 140 of the Labor Code of the Russian Federation).

If the employee did not work on the day of dismissal, then these amounts must be paid no later than the next day after the dismissed submission of the corresponding request (Article 140 of the Labor Code of the Russian Federation). At the same time, the Labor Code of the Russian Federation does not establish the form of such an appeal. This means that the employee's oral statement is sufficient. In the event of a dispute about the amount due to an employee upon dismissal, on the day of dismissal or an appeal with a corresponding request, he must pay an uncontested amount (Article 140 of the Labor Code of the Russian Federation). This amount should be understood as the amount for which the employee has no claims.

In the event of a dispute about the amounts to be paid (for example, about the amount of compensation for unused vacation or bonuses), these issues are resolved after the termination of the employment contract in the manner prescribed for the consideration of an individual labor dispute (Chapter 60 of the Labor Code of the Russian Federation).

An employment contract may be terminated by the employer in the event that an employee performing educational functions commits an immoral offense incompatible with the continuation of this work - clause 8, part 1 of Art. 81 of the Labor Code of the Russian Federation

When considering cases of reinstatement at work of persons, labor contract with which it was terminated in connection with the commission of an immoral offense incompatible with the continuation of this work (paragraph 8 of the first part of Article 81 of the Labor Code of the Russian Federation), the courts should proceed from the fact that, on this basis, only those employees who are engaged in educational activities, such as teachers , teachers educational institutions, masters of industrial training, educators of children's institutions, and regardless of where the immoral offense was committed: at the place of work or at home.

If the guilty actions giving rise to the loss of trust, or an immoral misconduct were committed by an employee at the place of work and in connection with the performance of his labor duties, then such an employee may be dismissed from work (respectively, according to paragraph 7 or 8 of part one of Article 81 of the Labor Code of the Russian Federation) if subject to compliance with the procedure for the application of disciplinary sanctions established by Article 193 of the Code.

If the guilty actions giving grounds for loss of confidence, or, accordingly, an immoral misconduct were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, then the employment contract can also be terminated with him under clause 7 or clause 8 part one of Article 81 of the Labor Code of the Russian Federation, but not later than one year from the date of the discovery of the misconduct by the employer (part five of Article 81 of the Labor Code of the Russian Federation). (clauses 46, 47 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 Labor Code of the Russian Federation "

Judicial practice of dismissal for committing an immoral misconduct

1. When considering cases on the reinstatement of persons at work, the employment contract with whom has been terminated in connection with the commission of an immoral offense incompatible with the continuation of this work (clause 8, part 1 of article 81 of the Labor Code of the Russian Federation), one should proceed from the fact that according to on this basis, the dismissal of only those employees who are engaged in educational activities is allowed

J. applied to the court with a claim against OJSC for reinstatement at work, recovery of average wages during the forced absence from work, compensation for moral damage, recognition of the order of dismissal unlawful, indicating that he worked as a locomotive driver, and later as an instructor-driver in a locomotive operational depot.

Canceling the decision of the district court to refuse to satisfy the claims, the panel of judges indicated the following.

Refusing to satisfy the claims, the court of first instance proceeded from the fact that the plaintiff, who worked as a driver-instructor with the performance of an educational function, committed an immoral offense, expressed in the fact that he demanded money from the driver K. presented by him for inclusion in the list of workers of the brigade for incentive in the form of a performance bonus for accident-free management.

Meanwhile, the court did not take into account that in accordance with paragraph 8 h. 1 Article. 81 of the Labor Code of the Russian Federation, an employment contract may be terminated by the employer if the employee performing educational functions commits an immoral offense incompatible with the continuation of this work.

It should be borne in mind that this basis can serve as a reason for the dismissal of only those employees for whom educational functions are the main content of their work.

The Labor Code of the Russian Federation does not contain a definition of an immoral offense. There is no such definition in the resolution of the Plenum of the Supreme Court of the Russian Federation No. 2.

In the opinion of the judicial board, immoral should be understood as an offense that violates the norms of morality accepted in society, committed by an employee at work or in everyday life and does not meet the moral and ethical requirements for the work performed by him or the position held.

Teaching activity is not only a purposeful process of educating citizens in order to get them an appropriate education, but also a process of upbringing (preamble of the RF Law of July 10, 1992 N 3266-1 "On Education"). The noted specificity of teaching activities presupposes the establishment by the legislator of special requirements for persons engaged in it. One of these special requirements is enshrined in clause 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

The work performed by the plaintiff is related to the training of workers of locomotive brigades in order to obtain professional skills for their work in the main specialty, but not the appropriate education.

At the same time, the locomotive operational depot within the meaning of the provisions of Art. 12 of the Law of the Russian Federation "On Education" also cannot be attributed to an educational institution.

Since J., not being an employee performing educational functions, could not be dismissed under paragraph 8 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, the termination of an employment contract with him does not comply with the requirements of labor legislation. (Extract from the definition of the Judicial Collegium for Civil Cases of Omsk regional court dated September 3, 2008 N 33-3296 / 2008; Bulletin of Judicial Practice of the Omsk Regional Court N 3 (36), 2008)

2. When considering cases of reinstatement of persons at work, the employment contract with whom was terminated due to the commission of an immoral offense incompatible with the continuation of work, it should be assumed that, on this basis, only those employees who are engaged in educational activities are allowed to be dismissed. for example, teachers, teachers of educational institutions, masters of industrial training, educators of children's institutions, and regardless of where the immoral offense was committed: at the place of work or at home. See further "Review of the practice of consideration by the courts of the Kaliningrad region in 2008 of civil cases on reinstatement at work"

Dismissal for committing an immoral act

Grounds for dismissal for committing an immoral offense

The concept of "immoral offense" is not defined in the legislation. Therefore, the employer independently decides which offense should be considered immoral. In practice, petty hooliganism, the use of alcoholic beverages in a public place, the involvement of minors in this, fights, cruelty to animals, drug use, profanity in the presence of minors, etc. are recognized as immoral offenses.

If an immoral misconduct was committed at work in the performance of a labor function, then upon dismissal one should be guided by the general rules for the application of a disciplinary sanction.

If the misconduct bears signs of a crime, then the employer has the right to contact the law enforcement agencies, but his decision will be enough for dismissal.

Practice situation

What measures should be taken by the school administration to discipline teachers for the use of obscene language?

The management can apply disciplinary measures to the employee, for example, in the form of a reprimand or dismissal, subject to the observance of the procedure established by the law.

In accordance with paragraph 47 of the Resolution of the Plenum of the Armed Forces of the Russian Federation, if an immoral offense was committed by an employee at the place of work and in connection with the performance of his labor duties, such an employee may be dismissed from work on the grounds provided for in paragraph 8 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, subject to the procedure for the application of disciplinary sanctions established by Art. 193 of the Labor Code of the Russian Federation. It should also be borne in mind that according to paragraph 2 of Art. 55 of the Law of the Russian Federation of 10.07.1992 N 3266-1 "On Education", a disciplinary investigation of violations by a teacher of an educational institution of the norms of professional behavior and (or) the charter of this institution can be carried out only upon a complaint filed against him in writing. A copy of the complaint must be given to the teacher. After receiving a parental complaint, the principal should establish a committee of inquiry to investigate the incident. The commission should demand explanations from the teacher, interview students whose parents wrote complaints. If the fact of using obscene language is confirmed, then the employer will have the right to dismiss the teacher.

Registration of the fact of committing an immoral offense

- surname, name, patronymic of the employee who discovered the fact of the misdemeanor;

- the circumstances under which the offense was committed;

- the date and time of the commission.

If the employees of the organization received information about the unlawful action directly from law enforcement agencies or from third parties, then it is not necessary to issue a memorandum.

On the basis of these documents, the employer initiates an official investigation, the task of which is to identify the guilty person.

Some immoral misconduct may carry signs of a criminal offense or an administrative offense, the culpability of the employee is determined by the court.

Creation of a commission to investigate the fact of committing an immoral offense

A commission to investigate the employee's immoral misconduct should be created regardless of where the immoral misconduct was committed.

The following tasks are set before the commission of inquiry into the fact of committing an immoral offense:

- establishing the circumstances of the immoral offense, including the time, place and method of its commission;

- identification of persons directly guilty of committing an immoral offense;

- identification of the reasons for the misconduct;

- determination of the possible measure of punishment for a person who has committed an immoral offense.

Registration of the decision of the commission to investigate the fact of committing an immoral offense

- the names and positions of all members of the commission;

- date, exact time and place of drawing up the act;

- the basis and time of the investigation;

- a list of activities (briefly);

- time, place and circumstances of the misconduct;

- the reasons and conditions for the commission of the offense;

- surnames, names and patronymics of the guilty persons and the degree of their guilt;

- the proposed measures of punishment (taking into account the personal and business qualities of the perpetrators) or further actions.

Read also: Legal consequences of illegal transfer and dismissal

If the immoral misconduct was committed not at work, then it is indicated how the employer became aware of this (complaint from neighbors, police appeal, etc.).

In addition, the act may contain other information.

Obtaining an explanation from an employee who has committed an immoral misconduct

Before issuing an order on the application of a disciplinary sanction in connection with the commission of an immoral offense, a written explanation must be required from the employee (Article 193 of the Labor Code of the Russian Federation). The Labor Code of the Russian Federation does not specify in what form such an explanation should be requested. Therefore, if the employee is ready to draw up an explanatory note, the written request can be omitted. If the situation is clearly of a conflicting nature, then it is better to issue this requirement in writing and familiarize the employee with it against signature. If he refuses to sign, it is necessary to draw up an appropriate act.

Execution of an order on the application of a disciplinary sanction in the form of dismissal and an order (order) to terminate (terminate) an employment contract with an employee for committing an immoral offense

How to correctly draw up an order on the application of a penalty to an employee? For more details, see clause 1 of this material.

There is no unified form for such a document, so the organization develops it independently. The order must reflect the following information:

- surname, name, patronymic of the employee;

- structural unit where the employee works;

- a misdemeanor committed by an employee, with references to the violated clauses of the contract or job description and to documents confirming this violation;

- the circumstances of the misconduct, the degree of its severity and the employee's fault.

As a basis for issuing an order, the details of an act, memorandum or other document fixing the misconduct, an employee's explanatory note, or an act on refusal to provide explanations are indicated.

After issuing an order on the application of a penalty in the form of dismissal and familiarizing the employee with it, it is necessary to draw up an order (order) to terminate the employment contract (unified form N T-8, approved by the Resolution of the State Statistics Committee of the Russian Federation of 05.01.2004 N 1). It must be indicated that labor relations are terminated in accordance with clause 8, h. 1, Art. 81 of the Labor Code of the Russian Federation in connection with the commission of an immoral offense. In the column "Grounds", the details of the order on the application of a disciplinary sanction should be reflected.

Terms of dismissal of an employee for committing an immoral offense

Registration of a work book upon dismissal for committing an immoral offense

Registration of a personal card upon dismissal for committing an immoral offense

A record of dismissal for committing an immoral offense on the grounds of clause 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation. Upon receipt of a work book, an employee must sign a personal card (clause 41 of the Decree of the Government of the Russian Federation of 04.16.2003 N 225 "On work books").

Payments to be made to an employee upon dismissal for committing an immoral offense

Dismissal from civil service for immoral behavior

Can they be fired from the civil service (tax) for candid photos found on the Internet (before the civil service, she was a nude model). The photos were taken a long time ago. Answer: Hello. As if such photos cannot serve as an official basis for dismissal.

But this is according to the Labor Code. But the norms of labor legislation for civil servants and law enforcement officers have their own nuances, which are regulated by internal regulations... For example, a law enforcement officer may be fired for immoral behavior. Whether your photos will be recognized by the management as immoral - I cannot know. In any case, in such scenarios, let them be fired forcibly without your consent.

Then it will be possible to simply recover in the authorities through a court decision. Of course, this is on condition that you have an irresistible desire to continue civil service. In case of any difficulties in protecting your rights and interests, I recommend that you contact the services of an experienced lawyer from the region of residence. Best regards, Serhiy Nechiporuk.

Dismissal for an immoral act

Vadim Artificial intelligence(182428) 5 years ago

Upon dismissal of an employee under paragraph 8 of Art. 81 of the Labor Code of the Russian Federation for committing an immoral offense, only employees performing educational functions can be dismissed. These include teachers, instructors, industrial training masters, educators.

Technical staff of educational and educational institutions (cleaners, storekeepers, etc.). cannot be dismissed on this basis.

Immoral offenses incompatible with the continuation of work can be committed by persons carrying out educational functions both in a team or in everyday life. However, under all conditions, the commission of immoral misconduct must be proven. Dismissal on the basis of a general assessment of the behavior of a person on the basis of non-specific or insufficiently verified facts, rumors, etc. is inadmissible.

Termination of an employment contract for an immoral offense may follow, in particular, for appearing in public places in a drunken state, offending human dignity and public morality, for involving minors in drunkenness.

When considering cases on the reinstatement of persons at work, the employment contract with whom has been terminated in connection with the commission of an immoral offense incompatible with the continuation of this work (paragraph 8 of Article 81 of the Labor Code of the Russian Federation). courts should proceed from the fact that, on this basis, only those employees who are engaged in educational activities, such as teachers, teachers of educational institutions, masters of industrial training, educators of children's institutions, are allowed to be dismissed, and regardless of where the immoral offense was committed: at the place of work or at home.

If the guilty actions giving rise to the loss of confidence, or an immoral misconduct were committed by an employee at the place of work and in connection with the performance of his labor duties, then such an employee may be dismissed from work (respectively, according to paragraph 7 or 8 of Article 81 of the Labor Code of the Russian Federation), subject to compliance the procedure for the application of disciplinary sanctions established by Article 193 of the Labor Code.

Who can be fired for immoral wrongdoing? ("Personnel business" practical magazine on personnel work, No. 7, July, 2007)

Who can be fired for immoral wrongdoing? ("Personnel business" practical magazine on personnel work, No. 7, 2007)

What is an immoral act and who can commit it? - not every employer will immediately answer this question. The Labor Code does not clarify what is considered an immoral misconduct, therefore, managers often use this specific ground for dismissal incorrectly, and employees dismissed for this reason win labor disputes in courts. Let's see what kind of employees can actually be fired for committing an immoral misconduct and how to do it right.

A crime against morality

An immoral offense is actions that violate the norms of morality and ethics, contrary to generally accepted ideas about reasonable and dignified behavior. Immoral offenses are recognized as illegal actions (theft, violence, insult, hooliganism), and simply condemned by society (for example, excessive drinking, rudeness towards others, unworthy behavior in everyday life).

And now - attention! Any of your employees can commit an immoral offense, because no one is immune from a sudden outburst of anger or momentary weakness. However, only an employee performing educational functions can be dismissed for such actions (clause 8 of part 1 of Article 81 of the Labor Code of the Russian Federation). In other cases, you must either choose another basis for terminating the employment contract, or limit yourself to a more lenient disciplinary sanction. And if there are no grounds for collection, then take other measures - have a heart-to-heart talk with the offender or contact the police.

Who performs educational functions?

At first. these are, of course, teaching staff - teachers of primary, secondary and higher educational institutions (including private schools), institutions additional education as well as kindergarten teachers and nannies. Secondly. other workers whose job function includes education are masters of industrial training, coaches of sports sections, heads of creative circles and studios, as well as employees who are engaged in educational or educational work in addition to their main activities (for example, heads of internal affairs bodies and their deputies for educational work *). Private tutors and nannies also fulfill the educational function defined by their employment contract and job description. This is well illustrated by the following example.

Read also: Dismissal during reorganization

Spouses Lyudmila and Peter S., under an agreement with the Lastochka agency, hired a nanny, Natalia D., for their five-year-old daughter. At first Natalia proved herself well - she fed the child on time, walked with him, played educational games. But once the owners noticed that the nanny came to work drunk, behaved rudely and cheekily. The agency fired Natalia for committing an immoral offense. The employee appealed the dismissal in court, referring to the fact that the nanny should only take care of the child, but not take care of his upbringing. However, the court refused to reinstate the plaintiff at work, since her job description contained a direct reference to the educational function. In particular, there was a clause that the nanny should form the child's skills of cultural behavior.

Employees who, although they work in children's institutions, do not perform educational functions, cannot be dismissed for committing an immoral offense.

The cook of the school cafeteria Nina M. shouted rudely at the third-grader Artyom A. who was trying to get breakfast without waiting in line, and pushed him violently away from the counter, as a result of which the boy fell and injured his knee. The employee was fired for committing an immoral offense incompatible with the continuation of work, but the court reinstated her in her previous position. The judge explained to the employer that Nina M., while working at the school, did not perform educational functions, which means that her dismissal on this basis is illegal.

Two sides of the same offense

An immoral misconduct can be committed at the place of work in connection with the performance of work duties and outside the place of work or at the place of work, but not in connection with the performance of work duties. Moreover, in the second case, the culprit can also be dismissed on this basis, but the procedure for terminating the employment contract will be somewhat different **.

Question in topic

The gymnasium teacher was noticed in assault - he beat students on the hands with a ruler several times. Can we terminate the employment contract with him for this, and if so, how to formulate the basis for dismissal?

Head of HR Department (Moscow)

Yes, you can. As for the grounds for dismissal, the described actions, of course, can be regarded as an immoral offense incompatible with the continuation of work (clause 8, part 1 of Article 81 of the Labor Code of the Russian Federation). However, in this case, it is better to use a special ground for dismissal provided for in subparagraph 2 of paragraph 4 of Article 56 of the Education Law *. It sounds like this: the use, including one-time, of methods of education associated with physical and (or) mental violence against the personality of the student, pupil.

Please note that the fact of the teacher's misconduct must be confirmed by written evidence. If the leader or colleagues of the teacher witnessed it, they can draw up an act about it. In other cases, a written complaint from the student or his parents is required, indicating the specific circumstances of the incident and attaching supporting documents (for example, a medical report). Upon receiving such a complaint, you must assemble a commission and conduct a disciplinary investigation (Article 55 of the Law). At the end of the investigation, the head of the organization decides on the dismissal of the employee or other measures that need to be applied to him.

Dmitry GLADYSHEV answered the question,

Director of LLC Law Firm & ldquoKonsult-Region & rdquo (Yaroslavl)

Dismissal for immoral misconduct at the place of work is formalized according to the rules for imposing a disciplinary sanction (Article 193 of the Labor Code of the Russian Federation). If the incident occurred not at the place of work (for example, the teacher was convicted of cruelty to his own children or in a fight with a neighbor), then the dismissal will not be considered a disciplinary sanction (part two of Article 192 of the Labor Code of the Russian Federation). In this case, the termination of the employment contract is drawn up in accordance with paragraph 8 of the first part of Article 81 of the Labor Code without the procedure for imposing a disciplinary sanction. An employment contract with such an employee can be terminated no later than one year from the day the employer learned of the misconduct (part five of article 81 of the Labor Code of the Russian Federation).

In order to dismiss an employee for an immoral offense not related to labor duties, the employer must have sufficient evidence, for example, a copy of the police report, a court order imposing an administrative penalty, testimony of witnesses.

Dismissal procedure

Any dismissal can serve as a reason for the employee to go to court. This is especially true in our situation, when the departure of an employee is accompanied by a conflict. In order to defend his position with honor in court, the employer must clearly and logically build the dismissal process.

First, document the employee's immoral behavior. To do this, draw up an act (sample), collect written explanations of witnesses, complaints from victims (sample). Be sure to ask for an explanatory note from the culprit himself. If a medical examination of the victim or the perpetrator was carried out (for example, regarding the detection of the last alcohol in the blood), keep the medical report. All this will help you to reliably establish the guilt of the offender. For a medical opinion, you can contact a full-time doctor, if he is in the organization, or in medical institution... If the victim has beatings or other injuries, they contact the trauma center. If administrative or criminal proceedings are initiated on the fact of an immoral misconduct, the victim may be sent for examination to the forensic medical examination department. Remember that the examination for the presence of alcohol in the blood is carried out only by a health worker who has undergone special training (narcologist) ***.

When all the evidence of an immoral misconduct is present, assess its severity. It is required to determine precisely whether this incident can serve as a basis for dismissal or it is sufficient to apply a softer disciplinary measure to the perpetrator. Especially carefully one should evaluate immoral offenses committed in everyday life.

If the immoral offense received a public outcry and was written about in the media, save the printed materials - they may be useful to you in court.

The question of the severity of the immoral offense is very difficult problem, requiring a comprehensive assessment of the circumstances of the incident, the identity of the culprit and other factors. Therefore, it is advisable to bring it up for discussion by a specially created commission and formalize the commission's recommendations in a protocol. Based on this document, the head of the organization will choose the disciplinary measure.

If, based on the results of the investigation, the head of the organization has come to the conclusion that the employee deserves the highest measure, proceed with the formalization of the dismissal. It is necessary to issue an order to terminate the employment contract in connection with the commission of an immoral offense incompatible with the continuation of this work (clause 8, part 1 of article 81 of the Labor Code of the Russian Federation). On the last working day, pay off the employee and issue him a work book.

In conclusion, we note that when considering cases in court, similar topics, which we talked about, employers usually have difficulties in proving their case. The testimonies of witnesses, who are often children, are inconsistent and ambiguous, and documentary evidence of an immoral misconduct is inconclusive or completely absent. Therefore, we advise you to build your position only on clear, reliable and consistent evidence.

* Order of the Ministry of Internal Affairs of Russia dated September 25, 2000 No. 995 On measures to improve educational work in the internal affairs bodies of the Russian Federation.

** Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2003 No. 2, part five of Art. 81 of the Labor Code of the Russian Federation.

*** Temporary instruction on the procedure for medical examination to establish the fact of alcohol consumption and intoxication from September 1, 1988 No. 06-14 / 33-14.

The following in the section:

We fire an employee for an immoral offense: algorithm and documents

To dismiss an employee for an immoral offense under clause 8, h. 1, Art. 81 of the Labor Code of the Russian Federation is not easy at all. Difficulties arise not only with the qualification of an employee's illegal actions as an immoral offense, but also with the fact that not every employee can be dismissed on this basis. We will tell you how to properly arrange such a dismissal.

Terms of termination of an employment contract on the basis of "immoral misconduct"

Terminate the employment contract with the employee under clause 8, h. 1, Art. 81 of the Labor Code of the Russian Federation - in connection with the commission of an immoral misconduct by an employee incompatible with the continuation of work in the position held, it is possible only if certain conditions are met. Namely, only an employee performing educational functions can be dismissed for such actions. In other cases, you must either choose another basis for terminating the employment contract, or limit yourself to a more lenient disciplinary sanction. And if there are no grounds for collection, take other measures - talk to the offender “heart to heart” or contact the police.

Dismissal on the basis of "immoral misconduct" is also possible in a situation where the immoral misconduct was committed at the place of work in connection with the performance of work duties and outside the place of work or at the place of work, but not in connection with the performance of work duties. Moreover, in the second case, the culprit can also be dismissed on this basis, but the procedure for terminating the employment contract will be somewhat different.

For example, the teacher was seen in assault - he beat students on the hands with a ruler several times. These actions, of course, can be regarded as an immoral offense incompatible with the continuation of work (clause 8, part 1 of article 81 of the Labor Code of the Russian Federation). However, in this case, it is better to use the special ground for dismissal provided for in sub. 2 p. 4 art. 56 of the Law of 10.07.92 No. 3266-1 "On Education" (hereinafter - the Law on Education) 1. It sounds like this: "The use, including one-time, of methods of education associated with physical and (or) mental violence against the personality of the student , pupil ".

1 The document becomes invalid on September 1, 2013 in connection with the adoption of the Federal Law of December 29, 2012 No. 273-FZ "On Education in the Russian Federation".

An immoral offense is actions that violate the norms of morality and ethics, contrary to generally accepted ideas about reasonable and dignified behavior.

Immoral offenses are recognized as illegal actions (theft, violence, insult, hooliganism), and simply condemned by society (for example, excessive drinking, rudeness towards others, unworthy behavior in everyday life).

Educational workers can be divided into two categories.

Firstly, these are pedagogical workers - teachers of primary, secondary and higher educational institutions (including private schools), institutions of additional education, as well as educators and nannies in kindergartens.

Secondly, other workers whose work function includes education:

Industrial training masters;

Sports section coaches;

Leaders of creative circles and studios;

As well as employees who are engaged in educational or educational work in addition to their main activities (for example, the heads of the internal affairs bodies and their deputies for educational work - order of the Ministry of Internal Affairs of Russia dated 02/01/2007 No. 120 "On comprehensive reform of the system of educational work in internal affairs bodies ").

But this is according to the Labor Code. But the norms of labor legislation for civil servants and law enforcement officers have their own nuances, which are regulated by internal regulations. For example, a law enforcement officer may be fired for immoral behavior. Whether your photos will be recognized by the management as immoral - I cannot know. In any case, in such scenarios, let them be fired forcibly without your consent.

Dismissal for an immoral act

Vadim Artificial Intelligence (182428) 5 years ago

Technical staff of educational and educational institutions (cleaners, storekeepers, etc.). cannot be dismissed on this basis.

Remaining Answers

Who can be fired for immoral wrongdoing? ("Personnel business" practical magazine on personnel work, No. 7, July, 2007)

Who can be fired for immoral wrongdoing? ("Personnel business" practical magazine on personnel work, No. 7, 2007)

Mikhail Razinov

A crime against morality

Who performs educational functions?

At first. These are, of course, pedagogical workers - teachers of primary, secondary and higher educational institutions (including private schools), institutions of additional education, as well as educators and nannies in kindergartens. Secondly. other workers whose job function includes education are masters of industrial training, coaches of sports sections, heads of creative circles and studios, as well as employees who are engaged in educational or educational work in addition to their main activities (for example, heads of internal affairs bodies and their deputies for educational work *). Private tutors and nannies also fulfill the educational function defined by their employment contract and job description. This is well illustrated by the following example.

Employees who, although they work in children's institutions, do not perform educational functions, cannot be dismissed for committing an immoral offense.

Two sides of the same offense

Question in topic

Head of HR Department (Moscow)

Dmitry GLADYSHEV answered the question,

Director of LLC Law Firm & ldquoKonsult-Region & rdquo (Yaroslavl)

Dismissal procedure

First, document the employee's immoral behavior. To do this, draw up an act (sample), collect written explanations of witnesses, complaints from victims (sample). Be sure to ask for an explanatory note from the culprit himself. If a medical examination of the victim or the perpetrator was carried out (for example, regarding the detection of the last alcohol in the blood), keep the medical report. All this will help you to reliably establish the guilt of the offender. For a medical opinion, you can contact a full-time doctor, if he is in the organization, or at a medical institution. If the victim has beatings or other injuries, they contact the trauma center. If administrative or criminal proceedings are initiated on the fact of an immoral misconduct, the victim may be sent for examination to the forensic medical examination department. Remember that the examination for the presence of alcohol in the blood is carried out only by a health worker who has undergone special training (narcologist) ***.

If the immoral offense received a public outcry and was written about in the media, save the printed materials - they may be useful to you in court.

The question of the severity of an immoral offense is a very complex problem that requires a comprehensive assessment of the circumstances of the incident, the identity of the perpetrator and other factors. Therefore, it is advisable to bring it up for discussion by a specially created commission and formalize the commission's recommendations in a protocol. Based on this document, the head of the organization will choose the disciplinary measure.

In conclusion, we note that when considering in court cases like the ones we talked about, employers usually have difficulties in proving their case. The testimonies of witnesses, who are often children, are inconsistent and ambiguous, and documentary evidence of an immoral misconduct is inconclusive or completely absent. Therefore, we advise you to build your position only on clear, reliable and consistent evidence.

* Order of the Ministry of Internal Affairs of Russia dated September 25, 2000 No. 995 On measures to improve educational work in the internal affairs bodies of the Russian Federation.

The employer has the right to dismiss an employee performing educational functions for an immoral offense incompatible with the continuation of this work. Only a pregnant woman cannot be dismissed on this basis (Article 261 of the Labor Code of the Russian Federation).
Thus, and this is confirmed by paragraph 46 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2, on this basis, only those employees who are directly involved in educational activities can be dismissed. These are, for example, teachers, teachers of educational institutions, masters of industrial training, educators of children's institutions. In addition, it does not matter where the immoral act was committed: at the place of work or not.
An immoral offense is considered to be an offense that contradicts generally accepted norms and rules (appearance in public places while intoxicated, foul language, fight, behavior that degrades human dignity, etc.).
It is important to note that the dismissal of an employee on this basis is not allowed later than one year from the date of the discovery of the misconduct by the employer. This is stated in Art. 81 of the Labor Code of the Russian Federation.
Note! If it is decided to fire a teacher of an educational institution for an immoral act, the provisions of Art. 55 of the Law of July 10, 1992 N 3266-1 "On Education". It says that the investigation of violations in this case is possible only upon receipt of a written complaint about the teacher's actions. In addition, it is stated that a copy of the complaint should be sent to the teacher.
If an immoral act was committed by an employee at work, then in order to impose a disciplinary sanction in the form of dismissal, the procedure established by Art. 193 of the Labor Code of the Russian Federation. Namely, to demand from the employee a written explanation, which he must submit within two working days. If no explanation is provided, an act is drawn up. It is also necessary to comply with the terms for imposing a disciplinary sanction, provided for in Art. 193 of the Labor Code of the Russian Federation.
Since dismissal in this case is a measure of disciplinary responsibility, an appropriate order is issued on the application of a disciplinary sanction in the form of dismissal, which is drawn up in an arbitrary form. The basis is Art. 193 of the Labor Code of the Russian Federation.
The employee is introduced to the order against signature within three working days from the date of issuance of the order (not counting the time the employee is absent from work). If the employee refuses to read the order, an act is drawn up.
The termination of the employment contract itself is formalized on the basis of Art. 84.1 of the Labor Code of the Russian Federation by order of dismissal in form N T-8. There are no provisions in the legislation indicating that these two orders can be combined into one or replaced by each other. Therefore, two separate above-mentioned orders should be drawn up. The Rostrud Letter dated June 1, 2011 N 1493-6-1 confirms that in this situation the issuance of two orders is not a violation of labor legislation.
In the order of dismissal in the column "basis (document, number, date)" of the order of dismissal, the requisites of the order on the application of a disciplinary sanction in the form of dismissal are indicated. In the column "grounds for termination (termination) of an employment contract (dismissal)" indicate: "in connection with the commission of an employee performing educational functions, an immoral offense incompatible with the continuation of this work, on the grounds of clause 8, part 1 of article 81 of the Labor Code of the Russian Federation ". A similar entry is made in the work book and the employee's personal card.

Article 81 of the Labor Code of the Russian Federation establishes a list of grounds for terminating an employment contract at the initiative of the employer. One of these grounds is the commission by an employee performing educational functions of an immoral offense that is incompatible with the continuation of this work, - paragraph 8. But with the application of this basis in practice, certain difficulties arise. After reading the article, you will learn what act is considered immoral, what categories of employees can be dismissed on this basis, what features must be taken into account and how to formalize the termination of employment in such cases.

What is considered immoral?

- hooliganism;

- the use of alcoholic beverages in a public place and drugs, as well as the involvement of minors in this;

- animal abuse;

- profanity in the presence of minors;

- viewing pornographic products and coercion into sexual acts of children; etc.

Who can be fired for immoral wrongdoing?

Anyone can commit an immoral offense - no one is immune from a sudden outburst of anger or momentary weakness. However, the law restricts the circle of persons whom the employer has the right to dismiss under clause 8, part 1 of Art. 81 of the Labor Code of the Russian Federation: this basis can only be applied to employees performing educational functions. In other cases, for dismissal, you will have to look for another reason or limit yourself to a milder disciplinary sanction - a reprimand or reprimand.

What kind of workers perform educational functions? The Plenum of the RF Armed Forces in clause 46 of Resolution No. 2 of 03/17/2004 "On the Application by the Courts of the Russian Federation of the Labor Code of the Russian Federation" (hereinafter - Resolution No. 2) clarified that, first of all, these are pedagogical workers - teachers, teachers of educational institutions, masters of industrial training, educators and nannies of children's institutions.

The educational function, in addition to teachers and teachers, is carried out by coaches of sports sections, heads of creative circles, sections and studios, as well as employees who are engaged in educational work in addition to their own job duties, for example, deputies for educational work.

Governors and nannies working under employment contracts for individuals, also perform educational functions, which means that they can also be dismissed on this basis.

Please note that employees who, although they work in children's institutions, do not perform educational functions, cannot be fired for committing an immoral offense. Thus, Zh. Filed a lawsuit against the OJSC for reinstatement at work, recovery of the average wage for the time of the forced absence, compensation for moral damage, and the recognition of the order of dismissal as illegal. In support of his claims, he indicated that since 1995 he worked as a diesel locomotive driver, and since 2002 - as an instructor driver in the locomotive operational depot of the West Siberian railroad... By order of 04/22/2008, he was dismissed under clause 8, part 1 of Art. 81 of the Labor Code of the Russian Federation - an immoral offense committed by an employee performing educational functions that is incompatible with the continuation of this work. The order of dismissal is considered illegal, since he did not commit an immoral offense, in addition, by the nature of his official functions, he is not a subject of a disciplinary offense, for which dismissal is stipulated under paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The District Court dismissed the claim.

Canceling the decision of the court, the judicial board of the regional court reported the following. Refusing to satisfy J.'s demands, the court of first instance proceeded from the fact that the plaintiff, who was working as a driver-instructor with the performance of an educational function, committed an immoral offense, expressed in the fact that J. demanded money from driver K., who was presented by him for inclusion in the list employees of the brigade for incentives in the form of a bonus based on the results of work for accident-free management in 2007.

Meanwhile, the court did not take into account the following. Committing an immoral offense can be the basis for the dismissal of only those employees for whom educational functions are the main content of their work, and it does not matter where the immoral offense was committed - at the place of work or at home.

According to the judicial board, immoral should be understood as an offense that violates the norms of morality accepted in society, committed by an employee at work or at home and does not meet the moral and ethical requirements for the work performed or the position held.

As can be seen from the Regulations on the driver-instructor of locomotive brigades of JSC, available in the materials of the case, the work performed by J. is related to the training of workers of locomotive brigades in order to obtain professional skills in their main specialty, but not the appropriate education. At the same time, the locomotive operational depot within the meaning of the provisions of Art. 12 of the Law of the Russian Federation of 10.07.1992 N 3266-1 "On Education" also cannot be attributed to an educational institution.

In addition, local regulations and the list of job duties of the driver-instructor of locomotive crews do not provide for the plaintiff's performance of educational activities or educational functions.

Since J., not being an employee performing educational functions, could not be dismissed under paragraph 8 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, the termination of an employment contract with him does not meet the requirements of labor legislation (Definition of the Judicial Collegium for Civil Cases of the Omsk Regional Court of 03.09.2008 N 33-3296 / 2008).

We formalize the termination of labor relations

Dismissal under clause 8 h. 1 Art. 81 of the Labor Code of the Russian Federation is a disciplinary measure, therefore, it is necessary to strictly follow the procedure for bringing an employee to such responsibility, established by Art. 192, 193 of the Labor Code of the Russian Federation. But before considering the execution of documents for dismissal, we note that an employee can commit an immoral misconduct at the place of work and in connection with the performance of labor duties; at the place of work, but not in connection with the performance of work duties; outside the place of work. Depending on the circumstances under which the misconduct was committed, the procedure for dismissal will differ.

In particular, in paragraph 47 of Resolution No. 2, the Plenum of the RF Armed Forces clarified that if an immoral offense was committed at the place of work and in connection with the performance of labor duties, such an employee may be dismissed under paragraph 8 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, subject to the procedure for the application of disciplinary sanctions established by Art. 193 of the Labor Code of the Russian Federation. If the immoral offense was committed outside the place of work or at the place of work, but not in connection with the performance of labor duties, then the employment contract can also be terminated under clause 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation, but no later than one year from the date of the discovery of the misconduct by the employer (part 5 of article 81).

Since, as a result of dismissal for any reason, labor disputes and, as a result, proceedings in court are possible, the employer must clearly and consistently comply with the procedure established by labor legislation.

Defining the immorality of a misconduct

Let us repeat that the labor legislation does not define which offense is considered immoral. But in accordance with the dictionaries of Ozhegov and Ushakov, "immoral" means "who does not take into account morality, does not take into account moral norms, does not have moral rules, immoral." Thus, an immoral offense should be considered a guilty act (both action and inaction) that grossly violates moral norms.

For your information. Since between an employee who has committed an immoral offense and the person brought up, in most cases, there is constant contact, the employer should assess how this misconduct will affect educational process... After all, a prerequisite for dismissal under clause 8, h. 1, Art. 81 of the Labor Code of the Russian Federation is the incompatibility of a committed misconduct with the continuation of work on the implementation of educational functions.

Most often, dismissal under clause 8, h. 1, Art. 81 follows the use of physical violence and insults against students or other persons (parents of the pupils, colleagues, etc.). There cannot be a reason for dismissal, for example, complaints that the employee "behaves incorrectly", "makes offensive statements." It is necessary to clearly and clearly indicate what kind of insult, when and under what circumstances it took place. On the other hand, the prevailing arbitrage practice proceeds from the premise that an immoral offense is not only an insult, foul language, but also any action that degrades the dignity of the person being educated. So, A. V. N. was dismissed under clause 8, h. 1, Art. 81 of the Labor Code of the Russian Federation due to the fact that she threw a rag at a student and hit him on the cheek. The court reinstated her at work, but the cassation instance overturned this decision and refused A.V.N. in satisfying the claims, considering it proven that an immoral offense was committed, incompatible with the continuation of work (Cassation ruling of the Saratov Regional Court dated 02.12.2010 in case N 33-6025 / 2010).

In any case, it is up to the employer to decide whether the offense is immoral or not.

We fix the offense

First of all, it is necessary to document the fact of immoral behavior. For this, an act is best suited - it is drawn up in the presence of witnesses, who will subsequently be able to confirm the employee's immoral behavior with their testimony. Let's give an example of such an act.

Municipal budgetary educational institution

"Average comprehensive school N 70 "

(MBOU SOSH N 70)

Act N 2

about committing an immoral offense

By me, the deputy director for teaching and educational work Volkova Anna Yurievna, in the presence of the teacher primary grades Sobakina Evgenia Aleksandrovna and the teacher of Russian language and literature Koshkina Olga Vladimirovna drew up a real act stating that on March 12, 2013 at 14 h 15 min physical education teacher Turnikov Ivan Andreevich in the school gymnasium drank alcohol with students of 9 "B" class - Sidorov P O. and Smeshko RD On the tennis table there was a bottle of vodka and a sausage. Noticing us, I.A.Turnikov tried to hide the bottle with the remnants of alcohol, but spilled it, as he was already in a state of alcoholic intoxication.

Volkova A. Yu. Volkova

Sobakina E. A. Sobakina

Koshkina O. V. Koshkina

Acquainted with the act _________________ I. A. Turnikov

I. A. Turnikov refused to familiarize himself with the act.

Volkova A. Yu. Volkova

Sobakina E. A. Sobakina

Koshkina O. V. Koshkina

If the immoral offense was committed in the presence of only pupils or students (that is, in the absence of other adults), it is not possible to draw up an act. In such cases, parents usually make a written statement in which they describe what happened in the lesson, training or lecture. Such a statement, like an act, serves as the basis for a verification of the facts set forth.

For your information. If the teacher was intoxicated, it is necessary to record this fact. Refer the employee to a full-time specialist, if available in the organization, or to a medical facility. If the victim has beatings and injuries, he must be sent to the trauma center - there they will be recorded and given first aid.

Determine the guilt of an employee of a misdemeanor

Before a disciplinary action is taken, the employer must request from the employee a written explanation of the reasons for the misconduct. If, after two working days, the employee does not provide the specified explanation, then an appropriate act is drawn up (Article 193 of the Labor Code of the Russian Federation). Simultaneously with the request for an explanation, it is necessary to initiate an internal investigation. For this, an order is issued, which determines the composition of the commission, the purpose of its creation, the period of its validity (it may not be limited to one case), as well as its powers.

For your information. Some immoral offenses may carry signs of a criminal offense or an administrative offense, the guilt of which is established by a court. Copies of court decisions are evidence of an immoral misconduct, so there is no need to conduct an internal investigation in this case.

The results of the commission's work are reflected in the corresponding act. The unified form of this document has not been approved, so the employer can develop it independently. In the act, in addition to indicating the members of the commission, the place and time of its drawing up, it is necessary to reflect:

- the basis and time of the investigation;

- a list of activities (briefly);

- time, place and circumstances of the misconduct;

- the reasons and conditions for the commission of the offense;

- surnames, names and patronymics of the guilty persons and the degree of their guilt;

- the proposed measures of punishment (taking into account the personal and business qualities of the perpetrators) or further actions.

If the immoral misconduct was committed not at work, then it is indicated how the employer became aware of this (complaint from neighbors, police appeal, etc.).

The act is signed by all members of the commission. It is necessary to familiarize the employee guilty of committing an immoral offense with it, against signature. In case of refusal or evasion of familiarization, an appropriate act is drawn up.

On the basis of the investigation report, the employee's explanations, the employer decides on the application of disciplinary action. Note that when choosing a measure by virtue of Art. 192 of the Labor Code of the Russian Federation, the employer must take into account the severity of the offense and the circumstances under which it was committed. In addition, the employer has to draw a conclusion about the compatibility or incompatibility of an immoral offense with the continuation of educational work. They are incompatible if the offense:

- had a detrimental effect on the child being brought up;

- gives grounds to assume that the employee in the future may commit a similar or other offense that will have a detrimental effect on the person being brought up.

We comply with the deadlines

It is very important to investigate the reasons for the misconduct as soon as possible, since disciplinary action applies no later than one month from the day the offense was discovered, not counting the time of the employee's illness, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees. Recall that the day the misdemeanor was discovered, from which the course of this period begins, is the day when the person to whom the employee is subordinate at work (service) becomes aware of the misdemeanor, regardless of whether he is endowed with the right to impose disciplinary sanctions (clause 34 Resolution No. 2).

A disciplinary sanction cannot be applied later than six months from the date of the misconduct, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The indicated time limits do not include the time of the criminal proceedings.

Note. Dismissal for an immoral misconduct committed by an employee not in connection with the performance of labor duties is not allowed later than one year from the date the misconduct was discovered by the employer.

We formalize the dismissal

If, based on the results of the investigation, the head of the organization has come to the conclusion that the employee deserves to be fired, an order must be issued to this effect. In the order, be sure to correctly formulate the grounds for dismissal: "The employment contract was terminated in connection with the commission of an employee performing educational functions, an immoral offense incompatible with the continuation of this work, paragraph 8 of the first part of Article 81 of the Labor Code of the Russian Federation."

For your information. Dismissal of an employee at the initiative of the employer is not allowed (except in the case of liquidation of the organization or termination of activities individual entrepreneur) during the period of temporary incapacity for work and during the period of being on vacation. If a dismissal order is issued during this period, according to Part 6 of Art. 81 of the Labor Code of the Russian Federation, such an order will be recognized as illegal and will entail the restoration of the employee in his previous position.

The employer's order on the application of a disciplinary sanction is announced to the employee against signature within three working days from the date of publication, not counting the time the employee is absent from work. If he refuses to familiarize himself with the specified order (order) against signature, then a corresponding act is drawn up (Article 193 of the Labor Code of the Russian Federation).

A record of termination of an employment contract is also made in the work book, which is issued to the employee on the last working day.

N records	date	Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating the reasons and reference to the article, clause of the law)	Name, date and number of the document on the basis of which the entry was made
Number	Month	Year
1		2		3	4
…	…	…	…	…	…
8	14	03	2013	The employment contract was terminated due to	Order dated 03/14/2013
				With the commitment of an employee performing	N 7th
				Educational function, immoral
				Misconduct incompatible
				With the continuation of this work,
				Clause 8 of the first part of Article 81
				Labor Code of the Russian Federation.
				Inspector OK Bulkina
				Familiarized with Turnikov

If on the day of the employee's dismissal it is impossible to issue a work book due to his absence or refusal to receive a document in his hands, the employer sends the employee a notification about the need to come for the work book or agree to send it by mail. Sending a work book by mail to the address indicated by the employee is allowed only with his consent.

Note. Don't forget to get your personal card.

From the day the specified notification is sent, the employer is released from liability for the delay in issuing the work book to the employee.

On the last working day, the resigning person must be paid all amounts due, including compensation for unused vacation.

Additional ground for dismissal of teachers

Nowadays, the media quite often consider cases of improper behavior of teachers when they use non-standard, sometimes cruel methods of upbringing related to the physical (beatings and any other actions that cause pain, forced imprisonment, food, drink, etc.) or mental (threats, deliberate isolation, insults and humiliation of dignity, excessive demands, systematic unfounded criticism, etc.) violence against the student's personality.

For such teachers, clause 2 of Art. 336 of the Labor Code of the Russian Federation and pp. 2 p. 4 art. 56 of the Law on Education provides an additional basis for termination of an employment contract - the use, including one-time, of methods of upbringing associated with physical and (or) mental violence against the personality of a student, pupil.

Note! Effective September 1, 2013, the Law on Education will expire and a new one will be in effect instead. the federal law dated December 29, 2012 N 273-FZ "On education in the Russian Federation". It does not contain additional grounds for terminating the employment contract for teachers.

Usually, the employer finds out about this from the complaints of the students or their parents (other representatives of the child). Moreover, such a complaint can be both oral and written and come from one person or from a team.

Dismissal on this basis is not attributed to disciplinary sanctions, however, given that violence is used as a method of education, that is, in connection with the performance of a teacher's job duties, dismissal on this basis requires compliance with the rules for bringing employees to disciplinary responsibility.

In addition, Art. 55 of the Education Law obliges the employer to conduct an internal investigation. This is due to the fact that the use of physical or mental violence by a teacher against the personality of a student or pupil is a violation of the norms of professional behavior.

Terminating an employment contract on this basis in an order, as in work book and a personal card, you must refer to paragraph 2 of Art. 336 of the Labor Code of the Russian Federation.

Summarize

As you can see, the dismissal of an employee performing educational functions for committing an immoral offense is a rather laborious process. Let us briefly outline the main points that an employer should pay attention to.

1. If the fact of committing an immoral offense is discovered, it must be recorded in an act or memorandum.

2. It is necessary to ask the employee for an explanation of the reasons for the misconduct. The employee has two working days to give explanations.

3. A commission is created to investigate the fact of committing an immoral offense, the results of which are documented in an act.

4. The terms of bringing to disciplinary responsibility are checked. By general rule dismissal is permissible within a month from the date of discovery of the offense. If the immoral offense was committed not in connection with the performance of labor duties, the dismissal must be made no later than one year later.

Only strict adherence to the dismissal procedure will help the employer avoid the restoration of a negligent employee in his previous position. And here is a confirmation from judicial practice.

K. worked in a state educational institution and was fired for immoral behavior. Considering the dismissal unlawful, she appealed to the district court with a demand for reinstatement at work, the collection of wages for the time of the forced absence from work and compensation for moral damage.

As established by the court and follows from the materials of the case, K. was hired to work at the GOU. By order of September 27, 2011, the employer ordered to apply disciplinary action to K. in the form of dismissal and prepare documents for dismissal on the basis of clause 8, part 1 of Art. 81 of the Labor Code of the Russian Federation from September 27, 2011. At the same time, the order does not contain references to specific facts indicating that the employee has committed an immoral offense.

It follows from this order that on September 23, 2011, the student's parent handed over an audio recording, consisting of five parts for the period April - May 2011, to the school principal, which recorded the negotiations between the teacher-defectologist and two educators, including K. It was this recording that justified the dismissal.

The GOU believed that the immorality of K.'s misconduct consisted in rude, demeaning statements addressed to students and work colleagues in the presence of other students and adults at different periods of time when the plaintiff was performing her professional duties. The immorality of the statements was that they emphasized the limited abilities of students, discussed their parents in front of children, ignored the physiological needs of the student.

K. did not dispute her voice on the audio recording, but believed that her statements were not offensive or immoral, the audio recording itself was composed in such a way that it did not allow to determine when, in connection with what and in what context these statements took place.

Under these circumstances, having analyzed the contents of the submitted printout of the audio recording, the court concluded that the recorded individual statements of K. did not prove that she had committed an immoral offense, since the audio recording was composed of different parts in violation of the chronology of events and does not allow to establish where, under what circumstances, in what context and in the presence of whom these statements were made, and the statements of the plaintiff themselves are not deliberately dismissive, rude, degrading.

Evaluating explanatory K., the court did not find any confessionary testimony in relation to her committing specific immoral offenses, including statements degrading the dignity of pupils, their parents or colleagues at work, or testifying to a gross violation of professional ethics by the plaintiff.

The acts drawn up by the employer on September 26, 2011 also do not contain a reference to the specific actions or statements of the plaintiff, which were imputed to K. as an immoral offense. As part of the investigation carried out by the defendant, in addition to analyzing the content of the provided audio materials, no other actions were taken, the school students and their parents were not questioned according to the information provided in the audio recording.

According to paragraph 23 of Resolution No. 2, when considering cases of reinstatement at work 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 established order dismissal is the responsibility of the employer. To this end, the employer must provide evidence that not only indicates that the employee has committed a disciplinary offense, but also that when a penalty was imposed, the severity of this offense and the circumstances under which it was committed were taken into account (part 5 of article 192 of the Labor Code of the Russian Federation ), as well as the employee's previous behavior, his attitude to work. Since the GOU did not provide sufficient evidence of K.'s guilt in committing an immoral offense, the Vyborg District Court of St. Petersburg concluded that the dismissal was unlawful and satisfied K.'s demands. .2012 N 33-6119/2012).