Immoral offense. Dismissal for committing an immoral act
"labor law", 2009, No. 6
Some amendments should be made to the labor legislation, establishing the unity of the procedure for dismissing employees for immoral offenses.
The labor activity of employees, connected with the implementation of their educational function, has a special legal and social significance. The work of this category of workers imposes on them responsibility for their own behavior, tk. their mistakes often cause damage not only to the employer, but also to other citizens, as a rule, minors.
This circumstance is reflected in the current Labor Code of the Russian Federation, which, among other things, provides for an additional ground for termination, at the initiative of the employer, of labor relations with an employee who performs an educational function due to his official and service behavior.
Clause 8, Part 1, Art. 81 of the Labor Code of the Russian Federation provides that an employee whose labor activity is associated with the education of citizens may be dismissed by the employer in connection with the commission of an immoral offense incompatible with the continuation of this work. Paragraphs 1 and 2 of Art. 336 of the Code, providing as grounds for termination of an employment contract with a teacher a repeated gross violation of the charter within one year educational institution, as well as the use, including a single one, of methods of education associated with physical or mental violence against the personality of a student or pupil.
The main feature of the above grounds for dismissal is that they are largely evaluative. Approaches to the interpretation of immorality, the rudeness of the violation and the possibility of continuing work can be very different, which, as a result, entails different conclusions of the courts when considering disputes on claims for the reinstatement of citizens dismissed in connection with the above actions. Unfortunately, we can state the ambiguity of judicial practice in this category of cases, which creates difficulties in applying the norms of labor legislation on the termination of employment contracts with employees engaged in educational activities in educational and other institutions different levels. At the same time, the accumulated experience of law enforcement agencies allows us to highlight the main points that an employer should take into account when applying paragraph 8 of part 1 of Art. 81 and pp. 1, 2 art. 336 of the Labor Code of the Russian Federation.
1. Subjects in respect of which the application of paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation
First of all, it is necessary to focus on the fact that dismissal for committing an immoral offense is allowed only in relation to a limited circle of subjects. labor relations, which is not subject to broad interpretation. This category includes only employees who directly perform educational functions in the relevant organization. At the same time, the legislator does not establish any requirements for the employer, i.e. as such, not only an educational institution, but also any other enterprise in which there are employees who carry out educational functions in accordance with their official duties can act.
The Supreme Court of the Russian Federation in the Decree of the Plenum of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" indicated an approximate list of positions in respect of which the application of paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation. These include: teachers educational institutions various levels, masters of industrial training at enterprises, educators of children's institutions, etc. At the same time, it has no legal significance, educational activities are carried out in relation to minors or persons who have reached the age of 18, for example, in higher educational institutions.
At the same time, the commission of an immoral offense by employees of educational and educational institutions, in which functional responsibilities does not include the direct implementation of educational activities, does not entail dismissal in accordance with paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation.
A typical example of this issue is the following litigation.
V. and K. filed a lawsuit against general education school on reinstatement in connection with their illegal dismissal for committing an immoral offense. According to the materials of the civil case, during the school sports day on April 28, 2003, physical education teacher K. asked the school’s deputy director for economic issues V. to bring a challenge cup to reward the winner of the running competition, which was stored in a glass case in the director’s office. V. refused to comply with K.'s request, explaining that the lock of the display case was jammed and, opening it, one could break the key. In the presence of schoolchildren in grades 5-8 and their parents, K. and V. began to insult each other, a serious quarrel broke out between them, which turned into a fight. On the same day, outraged parents of schoolchildren filed a written complaint with the school director against the actions of the physical education teacher and the school's deputy director for economic issues, asking them to punish the perpetrators. The parent committee was entrusted to control the situation.
The principal of the school requested written explanations from V. and K. about what had happened, and on June 2, 2003 (at the end of the school year) an order was issued to dismiss the teacher of physical education K. and the deputy director of the school for economic issues V. under clause 8 of the 1 tbsp. 81 of the Labor Code of the Russian Federation for committing an immoral offense. Having considered the case on the merits, the court found V.'s dismissal unreasonable, since the job description of the deputy director of the school for economic issues did not provide for the direct implementation of educational functions and the employment contract with him could not be terminated on the indicated basis. The court decided to reinstate V. at work with payment for forced absenteeism.
The court found the dismissal of physical education teacher K. quite justified, since the job description of the teacher physical education provides for the performance of educational functions, and ruled to dismiss the claim for reinstatement and payment for forced absenteeism<1>.
<1>Commentary on judicial practice. Issue 10 / Ed. O. Abramova, M. Bocharnikova. M.: Yurid. lit., 2004. S. 18.
Thus, when considering cases of this category, the most important evidence is the job description of the dismissed employee, which contains information about the presence or absence of the obligation of the dismissed person to perform educational functions.
With regard to the application of Art. 336 of the Labor Code of the Russian Federation, it should be noted here that the additional grounds for dismissal provided for by it apply exclusively to teaching staff of the relevant educational or other institutions, i.e. the circle of subjects whose dismissal is allowed is even narrower.
2. Grounds for dismissal under paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation
The concept of immoral offense in the legislation is not disclosed. At the same time, as you know, approaches to the interpretation of moral norms can be completely different and depend on many factors. This circumstance cannot but give rise to contradictions in law enforcement practice.
M.A. Bocharnikova gives an approximate list of acts that the courts, when considering such disputes, are recognized as immoral: "Among the indicated offenses incompatible with the continuation educational work may include scandals, fights, appearance in public places in a state of alcoholic, narcotic or other toxic intoxication, misbehavior in everyday life, cruelty to animals, etc.<2>.
<2>There. S. 17.
Most a prime example The immorality of the actions of a pedagogical worker can be an attempt to persuade pupils to act of a sexual nature, which took place in one of the litigations at the suit of a dismissed teacher.
I. worked in Kayakent secondary school N 1 as a teacher of geography and biology. By order of the director of the school of January 3, 2002 N 20, he was dismissed from work under paragraph 3 of Art. 254 of the Labor Code of the Russian Federation for committing an immoral offense. A criminal case was initiated against I. under Art. 133 of the Criminal Code of the Russian Federation (compulsion to act of a sexual nature).
I. appealed to the court with the above requirements, referring to the fact that he did not commit an immoral offense, the dismissal was the result of his refusal to vote in the elections for the head of the administration of the Kayakent district for a relative of the school director. He was acquitted in a criminal case by a court verdict.
On July 2, 2003, by decision of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Dagestan, the decision of the court of first instance was canceled and a new decision was issued to satisfy the claim.
In a supervisory submission to the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, Deputy Prosecutor General of the Russian Federation Zvyagintsev A.G. asked to cancel the Ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Dagestan of July 2, 2003 and the Ruling of the Presidium of the Supreme Court of the Republic of Dagestan of January 22, 2004, and to leave the decision of the court of first instance unchanged.
Having checked the case materials, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation found the supervisory submission of the Deputy Prosecutor General of the Russian Federation A.G. Zvyagintsev. justified and subject to satisfaction on the following grounds.
In accordance with Art. 387 of the Civil Procedure Code of the Russian Federation, the grounds for canceling or changing judicial decisions by way of supervision are significant violations of the norms of substantive or procedural law. From the materials of the case, in the opinion of the Judicial Collegium, it is seen that the courts of the cassation and supervisory instances of the Republic of Dagestan committed significant violations of the norms of substantive and procedural law, expressed as follows.
In accordance with paragraph 3 of Art. 254 of the Labor Code of the Russian Federation, which was in force at the time of I.'s dismissal and provided additional grounds for terminating the employment contract (contract) of certain categories of workers, the employment contract (contract) of an employee performing educational functions may be terminated in the event of an immoral offense incompatible with the continuation of this work .
As can be seen from the case, the reason for the dismissal of I. was his immoral behavior in relation to the students of the 6th "c" class of the Kayakent secondary school N 1 S., T. and I.A. The court of first instance recognized the dismissal of I. under paragraph 3 of Art. 254 of the Labor Code of the Russian Federation legal. The court found that I., having invited the said students to extra classes, "stepped on their feet, stroked their backs, felt various parts of the body, standing behind them, pressed them to the table." Such behavior of I., whose work is directly related to the upbringing of children, is immoral, incompatible with the continuation of educational activities.
The Judicial Collegium for Civil Cases and the Presidium of the Supreme Court of the Republic of Dagestan did not agree with the conclusions of the court, believing that, by virtue of Art. 61 of the Code of Civil Procedure of the Russian Federation, the court verdict that came into legal force, by which I. was acquitted on the charge under Art. 133 of the Criminal Code of the Russian Federation, in the absence of an event of a crime, was mandatory for the court considering this civil case. Meanwhile, according to paragraph 4 of Art. 61 of the Code of Civil Procedure of the Russian Federation, a court verdict in a criminal case that has entered into legal force is mandatory for the court considering the case on the civil law consequences of the actions of the person against whom the court verdict was issued, on the issues of whether these actions took place and whether they were committed by this person. Thus, the prejudicial significance of a court verdict in a criminal case for a civil case is limited only to questions of whether the relevant act took place and whether it was committed by this person. All other facts are subject to proof general rules provided for in Art. 56 Code of Civil Procedure of the Russian Federation.
In itself, the fact of an acquittal against the plaintiff under Art. 133 of the Criminal Code of the Russian Federation is not proof that he did not commit immoral actions that served as the basis for terminating the employment contract with him. When considering a criminal case, an incorrect qualification of the act committed by I. under Art. 133 of the Criminal Code of the Russian Federation, but it was not recognized that he did not commit the actions for which he was fired. The circumstances of the commission of I. immoral offense confirmed in a civil case investigated and assessed by the court in accordance with Art. 67 of the Code of Civil Procedure of the Russian Federation with evidence: materials of an official investigation, testimonies of witnesses and others. This evidence was given a proper assessment in the decision of the court of first instance, and therefore there were no grounds for canceling this decision on cassation.<3>.
<3>Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation of November 11, 2005 N 20-vpr05-35.
The previously existing Code of Labor Laws of the RSFSR contained in paragraph 3 of Art. 254 similar wording of the grounds for dismissal of employees performing educational functions, which also gave rise to difficulties in judicial practice. In the current Labor Code of the Russian Federation, the legislator made an attempt to concretize the general norm of clause 8, part 1, art. 81 introduction to paragraphs 1 and 2 of Art. 336 additional grounds for the dismissal of teachers, who in the vast majority of cases carry out the education of minors. This article gives the employer the right to terminate the employment contract with the teacher in the event of:
- repeated within one year of gross violation of the charter of the educational institution;
- application of educational methods related to physical and (or) mental violence against a person in relation to students.
Both can be regarded as an immoral act, which indicates the competition of the above grounds for dismissal. According to the author, in such cases, the special rule of Art. 336 of the Labor Code of the Russian Federation, and paragraph 8 of Part 1 of Art. 81 is the basis for dismissal if the immoral offense is not associated with a violation of the charter of the educational institution (although, as practice shows, the charters of many educational institutions provide for the duty of teachers to observe the norms in work and life common culture and morality) and physical or mental abuse of students.
The following case may serve as a typical example.
Parents of 7th grade students from one of the schools in Moscow applied to the director of the school with a written complaint about the behavior of the physics teacher Z., who screamed during the laboratory work On November 19, 2003, students S, V., Yu. and A., who, in her opinion, did not handle the equipment very carefully, and allowed herself insulting remarks about them. Correct behavior in relation to students is part of the duties of a teacher listed in the school charter, so the school principal, after conducting an appropriate disciplinary investigation, came to the conclusion that Z. had grossly violated the school charter and reprimanded her. Imposing order disciplinary action was published on November 24, 2003.
On February 5, 2004, the school principal received a written complaint from the parents of 9th grade student R., which stated that on February 4, 2004, their son R. had been removed from the classroom by teacher Z. for unprepared homework. It followed from the parents' explanation that R. had not solved the physics problems that were given at home, because on February 3, 2004 he took part in swimming competitions as part of the Moscow swimming championship among young men.
In addition, on February 4, 2004, the head teacher of the secondary school submitted a memorandum to the director, stating that on February 4, 9th grade student R., in the third lesson, was sitting on a bench near the locker room on the 1st floor of the school. When asked why he was not present at the lesson, R. replied that Z.'s teacher had asked him to leave the class because of his homework not done.
The principal of the school decided to conduct a disciplinary investigation. The explanatory note, which was requested from Z., indicated that R. did not really do his homework, but he was not removed from the class for this. After some time, R. raised his hand and asked permission to leave the class because he had a headache and wanted to go to the medical office. However, the school nurse confirmed that R. had not applied for medical assistance on 4 February 2004.
The order to dismiss Z. under paragraph 1 of Art. 336 of the Labor Code of the Russian Federation for a repeated gross violation of the charter of an educational institution during the year was signed on February 10, 2004.
Z. filed a lawsuit for reinstatement at work and for payment for forced absenteeism, stating in the statement of claim that the charter of the school does not contain a list of gross violations of the charter and therefore her actions cannot be recognized as a gross violation of the charter of the school.
9th grade pupils Ya., V., Sh., K., who were called by the court as witnesses, testified that Z., angry with R. for not doing his homework, yelled at him and demanded that R. leave the class .
The court, after hearing the parties, examining the testimony of witnesses and examining the written evidence in the case, concluded that the dismissal was lawful and justified, since the actions for which Z. was dismissed actually took place and can be considered a gross violation of the school charter. Firstly, incorrect behavior towards students is a violation of the duties of a pedagogical worker, determined by the charter of the school. Secondly, the charter of the school established the duty of the teacher to comply with the internal labor regulations, which, in turn, provide for the prohibition of teachers and other school employees to remove the student from the lesson.
The court decided to dismiss Z.'s claim for reinstatement and payment for forced absenteeism, and such a decision seems to be absolutely correct. The absence in the charter of the school of an independent list of gross violations of the charter does not mean that dismissal under paragraph 1 of Art. 336 of the Labor Code of the Russian Federation is impossible. Failure to perform or improper performance of the duties of a teacher established by the charter of an educational institution, job description, as well as violation of the internal labor regulations can be recognized as a gross violation of the specified charter, since it provides for the obligation of an employee of an educational institution to comply with the requirements of the relevant local regulations<4>.
<4>Commentary on judicial practice. Issue 10 / Ed. O. Abramova, M. Bocharnikova. M.: Yurid. lit., 2004. S. 21.
Often teaching staff challenge the immorality of their own actions, motivating their behavior by the peculiarities of the educational process, as well as the misperception of their behavior by students.
Thus, in particular, several students approached the dean of the faculty of one of the universities with a complaint that the teacher K. in the classroom often touches on the topic of sexual relations, asks them relevant questions, which is negatively perceived by them and is regarded as coercion to actions of a sexual nature.
The dean of the faculty raised the question of the dismissal of this teacher in connection with an immoral offense, excluding the further implementation of pedagogical and educational activities, before the leadership of the university. In the explanatory note, the teacher indicated that the topics he touched on were provided for work program special course "History of world culture" and do not go beyond teaching ethics.
However, according to the results of the check by the rector of the university, K. was dismissed from the university under clause 8, part 1, art. 81 of the Labor Code of the Russian Federation. The labor inspectorate that conducted the inspection on K.'s complaint pointed out to the higher educational institution that K.'s labor rights had been violated, since the dismissal order was issued without sufficient grounds, supported by anything other than the statements of two faculty students.
Thus, in this dispute, the main point was the perception of the actions of the teacher K. on the part of the students, and the question of the immorality of his act is quite difficult to objectively assess due to the impossibility of confirming certain factual data.
3. Features of the procedure for dismissal under paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation
The implementation of educational activities imposes on the employees who carry it out additional responsibilities related to their behavior not only directly at the workplace, but also in their personal lives.
Dismissal for committing an immoral offense is allowed if it is committed both at the place of work and outside it. This circumstance has key value when deciding on the procedure for terminating an employment contract at the initiative of the employer in accordance with paragraph 8 of part 1 of Art. 81 of the Labor Code.
If an immoral offense took place in the performance of official duties during working hours, then, in accordance with the explanation of the Plenum of the Supreme Court of the Russian Federation, the dismissal is carried out in compliance with the procedure for bringing employees to disciplinary responsibility, established by Art. 193 of the Labor Code of the Russian Federation, including the period for imposing a penalty<5>.
<5>Clause 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 of the Russian Federation of the Labor Code of the Russian Federation" // Bulletin of the Supreme Court of the Russian Federation. No. 6. 2004. P. 3.
A special place is occupied by the immoral actions of employees engaged in educational activities, committed by them during non-working hours and not in connection with the performance of official duties. In such situations, the question of the justification for dismissal is decided depending on the specific circumstances, including the severity of the misconduct, the period that has expired after it was committed, whether it is connected with work, the subsequent behavior of the employee and other factors.
According to M.A. Bocharnikova, the above differences in the procedure for the dismissal of pedagogical and other employees performing educational functions are not entirely justified, because. make the possibility of dismissal of unscrupulous teachers who have committed an immoral offense in the workplace dependent on the expiration of deadlines and other formal circumstances. She proposes to introduce a unified dismissal procedure under paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation, which would not provide for compliance with the rules for bringing employees to disciplinary responsibility. The author considers this proposal justified, since an employee who has violated moral norms in the workplace, which is more socially dangerous, is in a privileged position compared to persons who have committed violations outside of official activities, because. the procedure for imposing disciplinary sanctions is focused on protecting the interests of the employee and any deviation from it entails the release of the employee from liability. However, in the interests of minors, such an approach in the situations under consideration seems inappropriate.
It would be quite reasonable to grant the employer the right to dismiss an employee engaged in educational activities for committing an immoral offense for a certain period (longer than the period for imposing a disciplinary sanction), regardless of where and under what circumstances this offense was committed.
So, for example, the district court considered the case on the claim of T., dismissed from a higher educational institution under paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation.
According to the case file, T. was fired for committing an immoral offense, expressed in appearing at a lecture in a state of intoxication and using profanity in a speech to students that offends the dignity of students. This lecture was filmed by one of the students on a video camera of the phone and distributed among the students of this university through the local computer network of the university.
After the discovery of the video by the rector of the university, T. was fired.
In the statement of claim, the plaintiff pointed out that the university missed the deadline for imposing a disciplinary sanction for a misconduct that took place more than six months ago. Since T.'s immoral behavior was committed by him at the workplace, the court, guided by the above explanation of the Supreme Court of the Russian Federation, recognized T.'s demands as subject to satisfaction and reinstated him at work<6>.
<6>Case No. 2-3732//04 of the Leninsky District Court of Vladimir.
4. Dismissal of teachers for the use of physical or mental violence against students
As already noted, the use of physical or mental violence by a teacher, which is certainly an immoral offense, entailing dismissal under paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation, acts as a special basis for the termination of labor relations, provided for in Art. 336 of the Labor Code of the Russian Federation.
Unfortunately, cases of the use of violence against minors in educational institutions of various types and types currently occur quite often. Often, dismissal on this basis is disputed by employees in the judiciary. The most difficult problem, as a rule, is the establishment of the fact of the use of violence, because. often, apart from the testimony of directly minors, no other evidence can be obtained.
For example, P. went to court with a claim for reinstatement, pointing out that she was unreasonably dismissed for using methods of education related to the use of violence against the student's personality.
According to the materials of the present case, on April 11, 2002, 3rd grade student V. of the comprehensive school came home three hours after the end of classes (classes ended at 11:50 a.m.), explaining that teacher P. had locked him in class after school as a punishment for unfinished homework and conversations in the Russian language lesson and opened the door only at 2 pm. 45 min.
V.'s parents filed a written complaint against P.'s actions with the director of the school and asked them to conduct a disciplinary investigation and impose an appropriate disciplinary sanction on the teacher. From P.'s explanatory note, it followed that she did not commit the actions that are imputed to her, but P.'s explanations were inconsistent and unconvincing, and the school director decided to terminate the employment contract with P. under paragraph 2 of Art. 336 of the Labor Code of the Russian Federation for the use, including a single one, of methods of education related to physical and (or) mental violence against the personality of a student or pupil. The dismissal order was issued on April 16, 2002.
At the hearing, the plaintiff supported her claims in full and testified that at the end of the lessons she accompanied all the students in her class to the locker room, at 12 noon. locked the classroom and went home.
The school guard, who was called to court as a witness, confirmed that on 11 April 2002 P. left the school at about 12 noon. day and that day she never returned to school. In addition, the mother of R. (V.'s classmate), also acting as a witness, testified that on 11 April 2002 at about 1 pm. on the way to the store I saw V. standing at the kiosk with computer games.
The court, after hearing the parties, examining the testimony of witnesses and examining the written evidence in the case, came to the conclusion that P. was dismissed without sufficient grounds, since the fact of the use of physical and mental violence against the personality of the student was not proven during the trial. The court decided to satisfy P.'s claim for reinstatement and payment for forced absenteeism<7>.
<7>Commentary on judicial practice. Issue 10 / Ed. O. Abramova, M. Bocharnikova. M.: Yurid. lit., 2004. S. 22.
In another case, the court, on the contrary, having interrogated a large number of underage schoolchildren, established the fact that the teacher violated the existing rules for the implementation of educational activities.
V. had been working in a secondary school as a teacher of Russian language and literature since September 16, 1992. By order No. 99 of December 21, 1999, V. was reprimanded for violating labor discipline. By order No. 17 of March 9, 2000, V. was dismissed from work under paragraph 3 of Art. 254 Labor Code of the RSFSR.
Considering the disciplinary sanction and dismissal unlawful, V. filed a lawsuit to cancel the orders for disciplinary action and dismissal and reinstatement, wages during the forced absenteeism, indicating in her statement that there were no violations of labor discipline on her part, because after being on a disability certificate from November 23, 1999 to December 8, 1999, on December 9, 1999, she was in the Central District Court of Tver as a participant litigation, which was caused by a subpoena. She considers her dismissal illegal, because. did not commit immoral acts.
Regarding the illegality of her dismissal, the plaintiff explained to the court that she did not commit immoral, violent actions in relation to the students R. and A.. The representative of the defendant incorrectly qualified her actions, the decision to dismiss the representative of the defendant took alone. V. believes that her right to work, her constitutional rights were grossly violated, and the dismissal procedure was violated. The dismissal order does not specify her specific actions and their consequences.
Regarding the dismissal of plaintiff V., the representative of the defendant explained to the court that on February 15, 2000, at the lesson of literature and after it, the teacher of the Russian language and literature V. used physical violence against students A. and R., who, sitting at the first desk, were whispering . V. looked at the students, but did not make any remarks to them. Then she went up to A. and, pulling him out from behind the desk, sent him to the corner. Then V. came up behind R. and, grabbing him by the shirt, also pulled him out from behind the desk. R. stumbled over his briefcase and fell on the desk, as a result of which the septum of the bones of the nose was broken, the cuffs of his shirt were torn. Calling R. "a scoundrel and a scoundrel," V. sent him to a corner. I took their diaries. When the bell rang from class, she told the students to write down their homework. A. went to the teacher's desk and took his diary to write down the assignment. V. grabbed the diary from the boy's hands and hit him hard on the cheek with the diary. After that, V. began to write a remark in his diary. After writing a note, she closed the diary. A. again reached for the diary. V. hit him on the arm with the diary. Some time later, mother A came to the school. She was outraged by the behavior of teacher B. and wrote a statement asking to look into the situation and take action against the teacher. A. was sent to the emergency room, where he was diagnosed with an abrasion of the soft tissues of the cheek. On February 17, 2000, V. was handed a copy of A.'s mother's statement and asked to give explanations on this matter, but V. refused to explain what the act was drawn up about. On February 24, 2000, the mother of a 7th grade student, R., filed a statement with a request to look into the fact of assault committed by teacher V. against her son. This, in turn, prompted the headmaster to launch an internal investigation. All students who were present on February 15, 2000 at the literature lesson were asked to write what they saw. Of the 19 students present that day, 14 confirmed that V. slapped A on the cheek. ran out of the classroom with a bell or sat at a desk and did not see what was happening at the table, because the other guys surrounded the table, but they heard the noise and saw the diary flying to the corner of the table. From 19 February to 8 March 2000 V. was on sick leave. On March 9, she went to work, she was given a copy of R.'s mother's statement and was again asked to write an explanation about what happened at the literature lesson and after it on February 15, 2000, but V. did not give an explanation. Qualifying the teacher's use of the Russian language and literature V. , performing educational functions, physical violence that took place on February 15, 2000 at a literature lesson and after it in the 7th "in" class in relation to students A. and R., as an immoral act, the school administration came to the conclusion that it was impossible to continue V. work as a teacher of the Russian language and literature, so it was decided to dismiss her under paragraph 3 of Art. 254 of the Labor Code of the RSFSR for committing an immoral offense incompatible with the continuation of this work. At the end of the working day on March 9, 2000, V. was invited to the director's office, where she got acquainted with the dismissal order of March 9, 2000, but refused to sign.
In accordance with paragraph 3 of Art. 254 of the Labor Code of the RSFSR, an employment contract for certain categories of workers may be terminated if an employee performing educational functions commits an immoral offense that is incompatible with the continuation of this work.
Within the meaning of this article, the commission of an immoral offense incompatible with the continuation of this work can serve as a basis for dismissal only in relation to employees engaged in educational activities. According to the official duties of a teacher of a secondary general education school, adopted at the pedagogical council on November 5, 1998, in the trade union committee on November 4, 1998 and approved by the director of school N 10 on November 20, 1998, with which V. was acquainted, about which there is her personal signature , the teacher performs the following duties: he trains and educates the student, taking into account the specifics of the subject taught, etc. Thus, the plaintiff V., working as a teacher of the Russian language and literature at school, performed educational functions.
In accordance with paragraph 4 of Art. 18.4 of the Charter of the Municipal Educational Institution of Secondary School No. 10, the use of methods of physical and mental violence against students is not allowed. During the court session, it was established that on February 15, 2000, the teacher of the Russian language and literature, V., during a literature lesson and after it in the 7th grade, used physical violence against students A. and R.
This fact is confirmed:
testimony of witness A., who explained to the court that on February 15, 2000, at a literature lesson taught by teacher V., he and his desk mate R. were whispering. V. looked at them, but made no remarks. Then they giggled. V. went up to R., took him by the scruff of the neck and with a strong jerk pulled him out from behind the desk, which tore his shirt. R. could not resist and fell on the edge of the desk, but V. continued to push him into the corner. Then she went up to A. and, grabbing him by the collar, took him to a corner. She then took their diaries. When the bell rang and the teacher began to give the assignment, he went to the table and took the diary to write down the assignment, but V. tore the diary out of his hands and, calling him a "bastard", hit him in the face with the diary, which made him dizzy and had a headache , an abrasion formed on the cheek. Then V. wrote down the remark in her diary. A. again reached for the diary, but in response V. hit him on the hands with the diary. After that, he went to the director's office and told the head teacher about what had happened. On the same day, he went to the emergency room, where bodily injuries were recorded;
the testimony of witness A.N. - mother A., who explained to the court that on February 15, 2000 her son came running from school excited and said that the teacher had hit him. His cheek was red. She went to school to sort things out. The head teacher was at the school, teacher V. was no longer there. She wrote a statement. The son complained of dizziness, and she asked the head teacher Yu. to go with the child to the emergency room, because. she could not do it herself due to family circumstances. After about 2 weeks, 5 men came to her house, began to defend V., and then they said that her son was a bully, after which she asked them to leave the apartment. On the eve of May 9, V.'s defenders again came to her, asked her to withdraw the statement from the police, they said that V. had a difficult life, they said that V. had hit her son in an emotional state. Then a woman repeatedly called her and persuaded her to withdraw her statement from the police;
the testimony of witness F., who explained to the court that on February 15, 2000 he was present at a literature lesson taught by V. He was sitting in the 3rd row at the 2nd desk, behind the desk where R. and A were sitting. During the lesson R. and A. whispered. V. reprimanded them. Towards the end of the lesson, A. and R. laughed. V. pushed A. out by the collar and took her to a corner. Then - R., but he stumbled over his briefcase and hit the bridge of his nose on the desk. When the bell rang, A went to the teacher's desk to pick up his diary. A. took the diary, but V. snatched the diary from A.'s hands and hit him in the face with the diary. Then she sat down and began to write a remark in her diary. A. got a scratch on his cheek from being hit with the diary;
witness Sh., who explained to the court that on February 15, 2000, at a literature lesson taught by V., R. and A. sat at the same desk and whispered, then laughed softly. V. took R. by the collar and dragged him into a corner, he stumbled and hit his nose on the table, she dragged R. by the collar all the way to the corner, tore his shirt. Then she took A. by the collar and put her in a corner too. Sh., she also put him in a corner, then put him out the door, but then returned him to the classroom. He saw V. hit A. in the face with the diary. After the blow, A. got a scratch;
testimony of witness Sh.T. - Sh.'s mother, who explained to the court that on February 15, 2000, her son came home excited, worried about what had happened at the literature lesson. The son was offended that the teacher called him a scoundrel. Claims that her son cannot be persuaded to give the "necessary" testimony. He only says what really happened;
testimony of witness K., who explained to the court that on 15 February 2000 V. gave a literature lesson in their class. A. and R. were talking in class. V. made a remark to them, they fell silent, and then began to talk again. V. went up to the boys and dragged them into a corner, first one and then the other. When V. pulled R.'s shirt, he fell. When the bell rang from the lesson, she packed her things and left, so she did not see how V. hit A. in the face with the diary, because already left the class;
the testimony of witness P., who explained to the court that on 15 February 2000 the literature lesson in their class was taught by V., A. and R. whispered in the lesson and then giggled. He saw how V. approached R., grabbed him by the collar, so that he fell on the desk. Then V. pulled R. out from behind the desk and pushed her to the corner. He did not see how A. was pulled out from behind the desk;
the testimony of witness Z., who explained to the court that on 15 February 2000, during a literature lesson, V. pulled A. and R. out of their desks and put them in a corner because they were talking in class. When V. was pulling R. out of the desk, he hit his nose on the desk. Then V. took the children's diaries to write down a remark. When the bell rang from the lesson, A. took his diary from the teacher's desk to write down his homework. V. snatched the diary from A. with the words: "Why do you take the diary without permission from the teacher's table?" and slapped him across the face with the diary. In her opinion, this was done on purpose, and not by accident. She sits at the 2nd desk behind the desks of A. and R., so she saw and heard everything;
the testimony of witness I., who explained to the court that on 15 February 2000, at a literature lesson, teacher V. took R. and A. by the collar and put them in a corner because they were whispering in class. This happened about halfway through class. When V. took R. by the scruff of the neck, he stumbled and hit the desk. When the bell rang from the lesson, A. took her diary from the teacher's table, V. snatched the diary from A.'s hands and hit A. on the cheek with it. The witness saw it clearly. A.'s cheek turned red from the blow, and then a bleeding scratch appeared on it. R. and A. were in a state of shock. The guys were outraged by the act of teacher V., so they went to the director of the school;
the testimony of witness L., who explained to the court that she learned about what happened on February 15, 2000 at a literature lesson from the words of the children who came home that day indignant at the behavior of the teacher;
by the decision to dismiss the criminal case in part of April 17, 2000, according to which on February 15, 2000, at a literature lesson in a secondary school, teacher V. grabbed student R. by the clothes, pulled him sharply towards her, which caused R. not to have time to get up, stumbled and hit the bridge of his nose on the corner of the desk. Thus, as a result of negligence, V. caused R. a fracture of the bones of the nose without displacement of fragments, which, according to the conclusion of the forensic medical examination, is a slight bodily injury. Since criminal liability for careless infliction of minor bodily harm is not provided for, the criminal case against V. on this fact was terminated in part;
certificate on the criminal case of August 8, 2000 N 020319, according to which on February 25, 2000 the prosecutor of the Moskovsky district initiated a criminal case on the fact of inflicting bodily harm on A. under Art. 116 of the Criminal Code of the Russian Federation, and on March 3, 2000 - a criminal case on the fact of inflicting bodily harm on R. under Art. 115 of the Criminal Code of the Russian Federation. The proceedings in the case were suspended due to the search and illness of V. On 17 July 2000 the investigation in the criminal case was resumed;
statements by A. and his mother with a request to deal with the case of assault and take action against teacher V.;
A.'s diary, where on February 15, 2000, in the column "Literature" V. wrote the remark "Behavior is ugly";
R.'s statement, according to which on 15 February 2000 her son R. came home with a torn shirt cuff and redness on the bridge of his nose.
Thus, the fact of the use of physical violence by the teacher V. during the literature lesson and after it to the students of the 7th grade of the secondary school A. and R., which took place on February 15, 2000, was fully confirmed in the court session. The court has no reason not to trust the interrogated witnesses and written evidence. The testimonies of witnesses are specific, consistent, consistent with the testimony of other witnesses and written evidence. Written evidence is properly formatted. All the evidence is admissible and relevant and in their totality confirms the existence of circumstances justifying the defendant's objections.
The court indisputably established that A. and R. violated discipline in the lesson, whispering and giggling, and A. showed bad manners and took the diary from the teacher's table without permission, but this did not give V. the right to use physical violence against them for this. The Court considers that the administration of the secondary school correctly qualified V.'s actions of 15 February 2000 at a literature lesson in relation to pupils A. and R. as an immoral offense incompatible with continuing to work as a teacher. This immoral offense is sufficient for dismissal on this basis, regardless of the fact that V. was certified in 1996 and was assigned the 1st category.
After checking the legality and validity of V.'s dismissal under paragraph 3 of Art. 254 of the Labor Code of the RSFSR, the court concluded that the dismissal was legal and justified. At the same time, the procedure for dismissal on this basis was not violated. Labor legislation does not require the prior consent of the relevant elected trade union body upon dismissal under paragraph 3 of Art. 254 Labor Code of the RSFSR. The fact that Vlasova G.The. is a member of a free trade union - TTOSP SMOT, also does not oblige the administration to obtain the prior consent of this organization for dismissal, since this trade union has nothing to do with the school staff<8>.
<8>Judicial practice in labor cases / Comp. DI. Rogachev. M .: TK "Velby", publishing house "Prospect", 2004. P. 26.
5. Legal consequences of committing an immoral offense by a teacher
If the administration of an educational, upbringing or other institution establishes the fact that a teacher has committed an immoral offense, the head is given the right, at his own discretion, taking into account all circumstances, to decide to terminate the employment contract with this employee. However, in practice there are cases of demotion of offenders, which is recognized by the courts as unlawful.
Savina S.N. worked as the head of the Department of Foreign Languages of the Yelabuga State Pedagogical Institute. By order of the rector of the institute dated April 25, 1994 N 31-d, she was relieved of her post under paragraph 3 of Art. 254 of the Labor Code of the Russian Federation for committing immoral offenses incompatible with the continuation of this work.
Order N 36-d with additions made by order of June 1, 1994 N 47-d, Savina S.N. was hired as an associate professor of the same department of foreign languages from April 26, 1994. On November 11, 1995, a competition was announced at the institute to fill the position of associate professor of the department of foreign languages. About the competition Savina S.N. was notified, but did not submit an application for participation in the competition.
By order of July 16, 1996 N 66-k Savina S.N. was dismissed from the post of associate professor as not having applied for the competition.
Considering that the dismissal of the head of the department and the dismissal from the position of the assistant professor of the department violate her rights and are caused by the hostile attitude of the institute's leadership towards her, Savina S.N. applied to the court for reinstatement. The case has been repeatedly considered by courts of various levels.
By the decision of the Yelabuga City Court of February 18, 1998, left unchanged by the ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Tatarstan of April 17, 1998, the claims were denied.
Ultimately, the case was considered in the supervisory instance by the Presidium of the Supreme Court of the Russian Federation, which declared the judicial acts to be canceled on the following grounds.
In accordance with paragraph 3 of Art. 254 of the Labor Code of the Russian Federation (in force at the time of the plaintiff's dismissal), which provides additional grounds for terminating an employment agreement (contract) for certain categories of employees, an employment agreement (contract) for an employee performing educational functions may be terminated in the event of an immoral offense incompatible with the continuation of this work.
According to the meaning of the above norm of the law, according to the Presidium of the Supreme Court of the Russian Federation, when workers and employees performing educational functions commit an immoral offense, it is impossible for these persons to continue not any other, namely educational activities.
In this case, the employment contract (contract) of workers and employees with an enterprise, institution, organization when applying paragraph 3 of Art. 254 of the Labor Code of the Russian Federation is terminated and the named persons cease their activities in the implementation of educational functions.
As can be seen from the case file, the plaintiff worked at the institute for 24 years, was elected head of the department of foreign languages three times by competition. On September 13, 1990, the academic council of the institute re-elected her to this position for a new five-year term, which had not expired by the time of her dismissal. At the same department, she led teaching work with students.
The reason for the release of Savina S.N. from the position of the head of the department under paragraph 3 of Art. 254 of the Labor Code of the Russian Federation were the facts of insulting the teachers of the department. The court considered these actions an immoral offense incompatible with the continuation of work in his position.
It also follows from the case materials that the plaintiff was not actually fired by the defendant, but, being relieved of her post by the head of the department, continued to work here as an assistant professor, while her educational activities were not interrupted for a single day (case sheets 4 - 6, 16 v. 1).
The courts did not take into account that, in accordance with the charter of the Yelabuga State Pedagogical Institute and the regulations on the departments of the Yelabuga State Pedagogical Institute, approved in the prescribed manner, the implementation of educational functions is one of the main activities of the teaching staff of the Institute in work with students. The production functions of the head of the structural unit (department) of the institute are not limited to the implementation of educational activities in relation to subordinate employees (see clause 4 of the charter, clauses 1, 2, 3 of the regulation). Consequently, the plaintiff could not be dismissed due to the impossibility of continuing educational activities.
Thus, the courts allowed the incorrect application of the substantive law, in connection with which the decision of the court of first instance and subsequent judicial decisions in this part are subject to cancellation with the issuance of a new decision in the case on the restoration of Savina C.GN. in the former position of the head of the Department of Foreign Languages at the Yelabuga State Pedagogical Institute<9>.
<9>Decree of the Presidium of the Supreme Court of the Russian Federation of July 21, 1999 N 71pv-99pr // Legality. 1997. N 4. S. 37.
Based on the above example, it can be pointed out that it would be quite reasonable to introduce changes to the labor legislation that would allow the employer, in addition to dismissing an employee who has committed an immoral offense, also transfer him to another position in an organization that does not involve the performance of educational functions. Naturally, such a transfer is possible only with the consent of the employee, and in case of his refusal, the employment relationship must be terminated.
Summing up the consideration of the problem of dismissal of employees engaged in educational activities for committing immoral offenses, including the use of methods of education related to physical or mental violence against the personality of students, one should pay attention to a number of issues.
In particular, a clearer explanation of the Supreme Court of the Russian Federation about what should be recognized as immoral actions of employees performing an educational function is needed. Although it is impossible to give an exhaustive list of immoral offenses, as well as to indicate the content of moral norms, it is quite possible to identify their most common types based on a generalization of judicial practice.
Some amendments should be made to the labor legislation, establishing the unity of the procedure for dismissing employees for immoral offenses committed both at the workplace and at home.
A.S. Feofilaktov
Boss
legal department
Vladimirsky
state
Who can be fired for immoral misconduct? One of the grounds for dismissal at the initiative of the employer is the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8, part 1, article 81 of the Labor Code of the Russian Federation). At the same time, the concept of "immoral misconduct" is not defined by law, the employer himself determines in which case the actions of the employee will be considered immoral. According to the generally accepted rules for interpreting the concepts of the Russian language, the term “immorality” is a psychological and socio-ethical category that denotes a person’s orientation, expressed in the rejection of the moral foundations of society, a nihilistic attitude towards moral standards, and the spiritual decay of the individual.
Difficulties in dismissal for immoral misconduct
A written complaint may be accompanied by a medical report confirming the infliction of harm to physical or mental health, the conclusion of a psychologist. Please note: since the violation by a teacher of an educational institution of the norms of professional conduct or the charter of an educational institution is disciplinary offense(art.
55
of the Law on Education) dismissal under paragraphs 1 and 2 of Art. 336 of the Labor Code of the Russian Federation is carried out after the application of disciplinary measures, in the manner specified in Art. 193 of the Labor Code of the Russian Federation. Failure by the employer to comply with the procedure for dismissal, provided for by the norms of the Labor Code and the Law on Education, entails the reinstatement of the employee in court.
In confirmation, we cite the decision of the Karabudakhkent district court. O. worked in secondary school No. 5 (hereinafter referred to as the school) as a teacher of fine arts.
3. immoral act
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That is, no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, as well as his stay on vacation. Moreover, in this case, the dismissal under paragraph 8 of part 1 of Art.
81 of the Labor Code of the Russian Federation cannot be applied later than six months from the date of the misconduct. If the immoral offense is committed outside the place of work or at the place of work, but not in connection with the performance of his labor duties, then terminate the employment contract under paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation, the employer has the right within one year from the day he becomes aware of the negative act of his employee. From the point of view of law and society, the essence of the incident is much more important than the place.
Please note: the dismissal of an employee under paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation is permissible only if the immoral offense is incompatible with the continuation of this work.
When an employer is ashamed of his employee
Attention
Despite the fact that persons involved in training and education are subject to increased requirements for the observance of moral and ethical standards behavior, in each specific case, the employer should assess the misconduct committed, figure out what caused it to be committed, and take into account the proportionality of the committed misconduct to such a measure of disciplinary action as dismissal. Another type of disciplinary sanction can also be applied to an employee: a remark or a reprimand.
We also note that an immoral offense committed at the place of work must be associated with the performance by the employee of his labor duties. So, for example, if an employee had a conflict with a colleague at the workplace and this incident occurred in the absence of those being brought up, this misconduct can be assessed as not related to his job duties.
Dismissal for an immoral offense (Davydova E.V.)
T.) to JSC Football Club Baltika (hereinafter referred to as the Club) on reinstatement, collection of wages for the time of forced absenteeism, collection of compensation for moral damage, issuance of a duplicate work book. The court found the following. T. worked in the Club as a head coach.
By order of February 26, 2007 No. 12, he was dismissed under paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation. As the basis for dismissal, the order stated that T.
said in an interview published in the Kaliningradsky Sport newspaper that information about the Club's expenses and the appendix to the employment contract did not correspond to reality. The director of the Club believed that T. grossly violated the terms of the employment contract, slandered him, spreading false information in the media, thereby undermining the authority of the Club. After hearing the parties and examining the materials of the case, the court concluded that dismissal under paragraph 8 of part 1 of Art.
Immoral behavior and dismissal for it
On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation "an approximate list of employees in respect of which this ground for dismissal is applicable. From a legal point of view, this list is open, which allows in practice to supplement it. Although the process of education takes place not only in the field of education, but also in production, in the penitentiary system, and you never know where else, this ground for dismissal is still focused on employees of educational institutions. This is logical, since it is their influence on the formation of the personality of pupils and students that is most significant and significant, and their personal behavior and moral character serve as role models. Despite the fact that the concept of "immoral misconduct" is used in law, no normative legal act there is no definition.
immoral offense
The dismissal procedure depends on where the immoral offense is committed (at the place of work or at home). According to clause 47 of Resolution No. 2, 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, subject to the procedure for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation, within a month from the date of discovery of the misconduct. If an immoral offense is committed by an employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, the employment contract may be terminated with him no later than one year from the date of discovery of the misconduct by the employer.
Recall that by virtue of Part 4 of Art.
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Labor Code of the Russian Federation on the basis of insufficiently verified facts. In addition, when dismissing on the specified basis, one should take into account the severity of the committed immoral offense, the circumstances under which it was committed, etc. The club didn't.
In his interview, T. expressed his subjective opinion, his view of the situation in the Club. His speech is the implementation of the rights to freedom of thought and speech guaranteed by the Constitution of the Russian Federation to every citizen, which in no way refers to an immoral offense. Statements that are in the nature of criticism of the head of the Club cannot be considered an immoral offense either. Based on the foregoing, the court considered that the statutory grounds for the dismissal of T. under paragraph 8 of part 1 of Art.
Career
A disciplinary investigation of violations by a teacher of an educational institution of the norms of professional conduct and (or) the charter of this educational institution is carried out only on the basis of a complaint filed against him, filed in writing. A copy of the complaint is transferred to this teacher (Article 55 of the Law of the Russian Federation "On Education"). If the head of the educational institution received such a complaint from the student or his parents, he needs to assemble a commission and conduct a disciplinary investigation, after which a decision on dismissal or other penalties should be made. Documents drawn up by law enforcement agencies (a protocol on an administrative offense, a decision on an administrative offense case, a court decision, etc.) can confirm immoral behavior in everyday life. Normative base 1Gusov K.N., Tolkunova V.N. Labor law of Russia: textbook.
We dismiss an employee for an immoral offense: an algorithm and documents
Plenum of the Supreme Court of the USSR dated 11/01/1985 No. 15 "On the practice of application by the courts of legislation aimed at strengthening the fight against drunkenness and alcoholism" immoral offenses were indicated as guidelines. This is “drinking alcoholic beverages or appearing in public places in a state of intoxication that offends human dignity And public morality»; “involving minors in drunkenness, bringing them to a state of intoxication”; "manufacture, storage, purchase, sale of moonshine or other strong alcoholic beverages of home production." Judge for yourself what from this list is condemned today ... So who and how will evaluate the worker's act from the standpoint of morality? Whose level of morality should be the measure? The answer is quite obvious - the employer.
Separate grounds for the dismissal of teachers
Stompelev” in reimbursement of expenses for the services of a representative of 1500 RUB. When reviewing this case on V.'s complaint in the supervisory procedure, the presidium of the Yaroslavl Regional Court noted: a school teacher could be brought to disciplinary responsibility for an offense that is not a violation of labor discipline in the sense defined by Art. 192
of the Labor Code of the Russian Federation, but not compatible with the special status and level of responsibility of a person performing pedagogical and educational functions. It was also noted that publicly insulting work colleagues within the walls of the school is a violation not only of the internal regulations, but also of the norms of behavior accepted in society, which is incompatible with the activities of a teacher.
One of the grounds for termination of an employment contract at the initiative of the employer, provided for by the Labor Code, is dismissal for an employee committing an immoral offense. incompatible with the continuation of work (clause 8, part 1, article 81 of the Labor Code of the Russian Federation).
The category of persons who can be dismissed for immoral behavior also includes employees who carry out educational functions in accordance with their official duties in other, non-educational organizations. Thus, the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” establishes an approximate list of positions to which paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation. In addition to teachers and teachers of educational institutions of various levels, they include masters of industrial training at enterprises, educators of children's institutions. At the same time, the age of the persons in respect of whom educational activities are carried out does not matter.
The person who revealed this fact, at least draws up a memorandum addressed to the head of the organization. It is better if it is an act signed by several persons. The report shall indicate the last name, first name, patronymic of the person (persons) who discovered the fact of the misconduct, the circumstances under which the misconduct was committed, the date and time of its commission.
The employer must request a written explanation from the employee in writing. The employee must put a mark on the requirement that he received it. If no explanation is received after two working days, an appropriate act is drawn up.
On the basis of an act or a memorandum, by order of the employer, a commission is created to investigate the fact of committing an immoral offense. The results of its work are formalized in the form of an act (decision), which is signed by all members of the commission. During the meeting, all circumstances of the case, explanations of the employee, testimony of witnesses, complaints of victims, information obtained from official sources, etc.
Based on the act of investigation and the submitted documents, the head decides (if there are grounds for this) to dismiss the employee under paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation or apply another disciplinary measure to him - a remark or a reprimand. Dismissal for committing an immoral offense incompatible with the continuation of work is carried out on the basis of an order to terminate the employment contract (unified form T-8, approved by Decree of the State Statistics Committee of the Russian Federation dated 01/05/2004 No. 1 "On approval unified forms primary documentation on the accounting of labor and its remuneration). The order is announced to the employee against signature within three working days from the date of publication, not counting the time of his absence from work. If the employee refuses to familiarize himself with the order, an appropriate act is drawn up (part 6 of article 193 of the Labor Code of the Russian Federation).
For your information: upon dismissal of an employee who has committed an immoral act outside the place of work, the procedure for disciplinary action in accordance with Art. 193 of the Labor Code of the Russian Federation does not apply, and the dismissal itself is not allowed later than one year from the date of discovery of the misconduct by the employer (part 5 of article 81 of the Labor Code of the Russian Federation).
Dismiss an employee under paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation is possible if he commits an immoral offense not only at work, but also in a public place, and at home, as mentioned in paragraph 46 of Resolution No. 2. In this case, the employer also needs to conduct an internal investigation in order to confirm immoral behavior and objectively assess not only the severity of the misconduct committed, but also its connection with work, the subsequent behavior of the employee, etc. If immoral behavior is confirmed by a court decision that has entered into force, protocol on an administrative offense or other official document, the employment contract may be terminated without following the investigation procedure.
Compliance with the dismissal procedure by the employer will be the key to success in the event of a case being considered in court. Thus, the Sherbakulsky District Court of the Omsk Region considered the case on the claim of N. against “B” for reinstatement, recovery of wages for the time of forced absenteeism and compensation for non-pecuniary damage.
N. worked in kindergarten"B" educator. According to the employment contract dated November 20, 2008, concluded for an indefinite period, she provided training and education for preschool children, taking into account the specifics of the educational program. 03/01/2010 N. was dismissed under paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation - for the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work. The immoral offense was committed by N. on 01/05/2010 in everyday life and was expressed in the fact that she, in a state of intoxication, danced in a cafe in an indecent way, which caused ridicule and a negative reaction from others.
Information about this event was brought to the head of the Department of Education local resident who witnessed what happened. The head of the department requested an explanation from N. and gave recommendations to the head of "B" to prepare an order for the dismissal of N. In addition, eyewitnesses of the incident were interviewed, and on 11.02.2010 a meeting was held in the team. Having assessed all the circumstances, taking into account the recommendations of the Office, the decision of the meeting of the teaching staff, the consequences of the immoral offense and the circumstances of its commission, on March 1, 2010, the employer issued an order to dismiss N., which she refused to sign in the presence of two witnesses. At the same time N. was issued a work book.
As a result of interviewing witnesses, examining documents, taking into account the provisions of Decree No. 2, Art. 81, 84.1 of the Labor Code of the Russian Federation, the court found no violations in the procedure for dismissal of N. N.'s claims were denied.
Alexey, dismissal under this article is quite rare and controversial, and you should be aware that an employee can appeal against it in court.
Regards, Anna
Teachers are a separate category of workers. Their work, in addition to generally binding norms and rules, is regulated by a number of regulations - decrees of the Government of the Russian Federation, orders of the Ministry of Education and Science, etc. And in addition to the general grounds for dismissal, special ones can be applied to teaching staff. As a rule, such dismissals are quite conflicting, so the employer must clearly and accurately follow the dismissal procedure for the chosen reason. Let's talk about the nuances of terminating an employment contract with employees of educational organizations on separate grounds.
Among the special grounds for the dismissal of pedagogical workers are:
- p. 8 h. 1 art. 81 of the Labor Code of the Russian Federation(commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work);
- p. 13 h. 1 art. 83 of the Labor Code of the Russian Federation(the emergence of restrictions established by the Labor Code of the Russian Federation, other federal law and excluding the possibility of the employee fulfilling obligations under an employment contract on engaging in certain types of labor activity);
- p. 2 h. 1 art. 336 of the Labor Code of the Russian Federation
Dismissal for an immoral act
First of all, we will clearly define what misconduct can be considered immoral and whether any employee educational organization may be dismissed on this basis.The Labor Code does not define an immoral misconduct, the employer independently determines whether this or that misconduct is such, based on their own concepts of morality. However, in any case, the following will be recognized as immoral:
- drinking alcoholic beverages;
- fights;
- insults and obscene expressions;
- depraved or other actions that negatively affect others.
Note that forcing pupils to lie can also be regarded as an immoral offense and in such a situation, the dismissal of an employee of an educational organization performing educational functions will be legal ( The appeal ruling of the Moscow City Court dated June 20, 2014 in case No. 33‑22169 ).
Thus, any violation of moral principles and norms of behavior accepted in society can be considered an immoral offense.
But in addition to determining the immorality of the committed act, the employer should clearly understand that not any employee can be fired for such. So, the Plenum of the Armed Forces of the Russian Federation in Decree No. 17.03.2004 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" pointed out that only those employees who are engaged in educational activities, for example, teachers, teachers of educational institutions, masters of industrial training, educators of children's institutions, can be fired for committing an immoral act, and regardless of where the immoral offense was committed - at the place of work or at home ( 46).
Of course, the educational function, in addition to teachers and teachers, is also 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 official duties, for example, deputies for educational work. Thus, the Altai Regional Court refused to reinstate the director of the MKOU secondary school. The director believed that he did not belong to the employees performing educational functions, since he provided leadership and did not teach lessons. However, the court pointed out that the fact that the plaintiff does not teach lessons, that is, is not a direct participant in the educational process, does not indicate that he did not fulfill educational functions. The principal of the school is in direct contact with the students, applies educational measures, therefore, he performs educational functions ( The appeal ruling of the Altai Regional Court dated August 27, 2014 in case No. 33‑6014/14 ).
So, we figured out who can be fired for committing an immoral act and what to consider as such. Now about how to carry out the dismissal itself. Remember that dismissal p. 8 h. 1 art. 81 of the Labor Code of the Russian Federation will be legal if three circumstances take place simultaneously:
- performance of educational functions by the employee;
- committing an immoral offense;
- incompatibility of the committed offense with the continuation of work related to the performance of educational functions.
If an immoral act is committed at the place of work and in connection with the performance of labor duties, then such an employee may be dismissed, subject to the procedure for applying disciplinary sanctions established by Art. 192, 193 Labor Code of the Russian Federation. If an immoral offense is committed outside the place of work or at the place of work, but not in connection with the performance of labor duties, the employment contract according to p. 8 h. 1 art. 81 of the Labor Code of the Russian Federation may also be terminated, but no later than one year from the date of discovery of the misconduct ( paragraph 47 of Resolution No. 2 ).
Procedure for terminating an employment contract p. 8 h. 1 art. 81 of the Labor Code of the Russian Federation next:
Emergence of restrictions on engaging in certain types of labor activity
Law No. 387-FZ a new one was introduced into the Labor Code Art. 351.1 which establishes restrictions on employment in the field of education, upbringing, development of minors, organization of their recreation and rehabilitation. In addition, it has been adjusted Art. 331 of the Labor Code of the Russian Federation. According to these standards, the following persons are not allowed to teach:- who have or had a criminal record, are or have been subjected to criminal prosecution (with the exception of persons whose criminal prosecution was terminated on rehabilitating grounds) for crimes against life and health, freedom, honor and dignity of a person (with the exception of illegal placement in a psychiatric hospital, slander and insults ), sexual inviolability and sexual freedom of the individual, against the family and minors, public health and public morality, the foundations of the constitutional order and state security, as well as against public security;
- having an unexpunged or outstanding conviction for intentional grave and especially grave crimes.
When dismissing on this basis, it should be borne in mind that dismissal on this basis can be made only after receiving official reference from the Interior Ministry.
For your information
Administrative regulations for the provision public service approved Order of the Ministry of Internal Affairs of the Russian Federation dated 07.11.2011 No. 1121 .
You should not think that if a teacher was convicted of crimes named in Art. 331 of the Labor Code of the Russian Federation, prior to entry into force Law No. 387-FZ, then there is no need to fire the employee. As judicial practice confirms, it does not matter when the teacher was convicted, the fact itself is important. So, P., believing that he was illegally dismissed from MBOU "Youth Sports School", went to court. He substantiated the requirements by the fact that the restrictions provided for by Part 2 Art. 331 And Art. 351.1 of the Labor Code of the Russian Federation for the implementation of pedagogical activities, in this case are not subject to application, since he was hired before the introduction of these restrictions in the labor legislation.
Meanwhile, the court found that in 2005 P. was convicted on Part 1 Art. 111 of the Criminal Code of the Russian Federation and the conviction has been cancelled. Taking into account the legal position set out in Resolution of the Constitutional Court of the Russian Federation of July 18, 2013 No. 19-P, the court noted that the provisions of the named articles of the Labor Code provide for an indefinite and unconditional ban on employment professional activity in the areas specified in these provisions for persons who have a criminal record or whose criminal record has been expunged or extinguished, found guilty. Therefore, the dismissal was recognized as legal and justified ( The appeal ruling of the Supreme Court of the Republic of Mordovia dated July 22, 2014 in case No. 33‑1253/2014 ).
In addition, some heads of educational organizations “in the old fashioned way” believe that this ground for dismissal is applicable only to those employees who directly carry out pedagogical or educational activities. That is, a janitor, watchman, supply manager cannot be fired for p. 13 h. 1 art. 83 of the Labor Code of the Russian Federation. However, the current version of the Labor Code of the Russian Federation is formulated in such a way that the restriction is established not in relation to a specific labor function, but in relation to the field of activity. This means that on this basis it is possible to dismiss both the watchman and the cleaner, and other employees who are not directly involved in pedagogical or educational work, that is, the restriction applies to all personnel of educational organizations, including technical and auxiliary, since they also carry out labor activity in the above areas (appellate rulings of the Judicial Collegium for Civil Cases of the Chelyabinsk Regional Court dated July 24, 2014 in case No. 11‑7669/2014 , Kurgan Regional Court dated June 13, 2013 in case No. 33‑1596/2013 , of the Krasnoyarsk Regional Court dated August 20, 2012 in case No. 33‑6847/2012 etc.).
However, simply dismissing the teacher will not work. As with dismissal for an immoral act, a certain procedure must be followed. In particular, the termination of an employment contract due to p. 13 h. 1 art. 83 of the Labor Code of the Russian Federation is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the qualifications of the employee, and a vacant lower position or lower paid job), which the employee can perform taking into account his state of health. The employer is obliged to offer all the vacancies that meet the specified requirements, available to him in the given area. The employer is obliged to offer vacancies in other areas, if this is provided for by the collective agreement, agreements, labor contract.
Application of methods of education related to violence against a person
According to paragraph 9 of Art. 13 federal law dated December 29, 2012 No. 273-FZ "On Education in the Russian Federation" implementation use educational programs methods and means of training and education, educational technologies harmful to the physical or mental health of students is prohibited. Therefore, the Labor Code provides for one more reason for the dismissal of teachers - p. 2 h. 1 art. 336(use, including a one-time use, of methods of education associated with physical and (or) mental violence against the personality of a student, pupil).What methods of education are considered physical or mental abuse? We believe that the former include beatings and any other actions that cause pain, forced deprivation of liberty, food, drink, etc. The latter include threats, deliberate isolation, insults and humiliation, making excessive demands, systematic and unfounded criticism, demonstrative negative attitude towards the student, etc.
Here, the employer will have to conduct an investigation, during which to establish what kind of violence was used against students or pupils and whether it was at all. In addition, it is necessary to stock up on evidence - statements from parents, testimonies - and conduct an official investigation. If this is not done, the restoration of the tyrant teacher cannot be avoided. For example, the Volgograd Regional Court reinstated D., who was fired for a “moral insult” at work at the State Budgetary Educational Institution “PU”: at the lesson she hit student A. with a pointer on the leg, student B. hit her in the face, and she used rude obscene language against P. scolding. The dismissal order was issued on the basis of explanatory notes of students, statements, claims of parents. Explanations with D. were requested. However, the court satisfied D.’s demands and reinstated her at work, since GBOU “PU” did not conduct an official investigation, therefore, the court could not establish specific facts of D.’s use of physical and psychological violence against students ( The appeal ruling of the Volgograd Regional Court dated April 11, 2014 in case No. 33‑3888/14 ).
This ground for dismissal does not apply to disciplinary sanctions, however, an internal investigation will still have to be carried out.
Here is an example of an entry in work book dismissal on the grounds under consideration.
| №
records | date | Information about hiring, transfer to another permanent job, qualifications, dismissals (indicating the reasons and referring to the article, paragraph 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 | ||
| 510 | 11 | 11 | 2014 | Employment contract terminated | Order dated 06/22/2012 |
due to single use | No. 21 | ||||
methods of education related | |||||
with physical violence | |||||
student, paragraph 2 of Article 336 | |||||
Labor Code | |||||
Russian Federation. | |||||
Pisakina's secretary | |||||
Registration of dismissal
According to the general rules, dismissal is issued by order ( Art. 84.1 of the Labor Code of the Russian Federation). The basis for issuing such an order will be upon dismissal:- By p. 8 h. 1 art. 81 of the Labor Code of the Russian Federation- a memo or an act on fixing the fact of immoral behavior of a teacher, an explanatory delinquent act or an act on refusal to give explanations, an act of an official investigation;
- By p. 13 h. 1 art. 83 of the Labor Code of the Russian Federation- a certificate from the Ministry of Internal Affairs about the presence of a criminal record or the fact of criminal prosecution, possibly an order from the prosecutor;
- By P.2 hours 1 tbsp. 336 of the Labor Code of the Russian Federation- Complaints of parents and students in writing, an explanatory note of a pedagogical worker, an act of investigation.
Based on the order, an entry is made in the work book and personal card.
Then, on the last working day, it is necessary to issue a work book to the dismissed person and make a settlement with him in accordance with Art. 140 of the Labor Code of the Russian Federation. At the written request of the employee, the employer is also obliged to provide him with duly certified copies of documents related to work.
Summarize
In conclusion, we recall that since dismissal for the reasons considered quite often ends in a labor dispute, it is necessary to prepare all the documents, as well as stock up on sufficient evidence of an immoral offense committed by the employee or the use of educational methods related to violence against the personality of students. After all, it is for the employer Decree No. 2 the obligation is imposed to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal ( item 23).Approved by the Decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1 "On approval of unified forms of primary documentation for accounting for labor and its payment."
Federal Law No. 387-FZ dated December 23, 2010 “On Amendments to Article 22.1 of the Federal Law “On State Registration legal entities And individual entrepreneurs"and the Labor Code of the Russian Federation".
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 organs through a court decision. Of course, this is provided that you have an irresistible desire to continue public service. In case of any difficulties in protecting your rights and interests, I recommend contacting the services of an experienced lawyer from the region of residence. Sincerely, Sergey 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, only employees performing educational functions can be dismissed for committing an immoral offense. These include teachers, teachers, masters of industrial training, 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 who carry out educational functions both in a team and in everyday life. However, under all conditions, the commission of immoral offenses must be proven. It is unacceptable to dismiss on the basis of a general assessment of the behavior of a person on the basis of vague or insufficiently verified facts, rumors, etc.
Termination of an employment contract for an immoral offense may follow, in particular, for appearing in public places in a state of intoxication that offends human dignity and public morality, for involving minors in drunkenness.
When considering cases on the reinstatement of persons whose employment contract was terminated due to their committing an immoral offense incompatible with the continuation of this work (clause 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, for example, 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 guilty actions that give rise to a loss of confidence, or an immoral offense are 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 (accordingly, under paragraph 7 or 8 of Article 81 of the Labor Code of the Russian Federation) subject to compliance the procedure for applying disciplinary sanctions established by Article 193 of the Labor Code.
Other answers
Who can be fired for an immoral act? ("Personnel business" practical magazine on personnel work, No. 7, July, 2007)
Who can be fired for an immoral act? ("Personnel business" practical magazine on personnel work, No. 7, 2007)
Mikhail Razinov
What is an immoral offense and who can commit it? - not every employer will immediately answer this question. The Labor Code does not explain what is considered an immoral offense, therefore managers often use this specific ground for dismissal incorrectly, and employees dismissed for this reason win labor disputes in courts. Let's see which employees can actually be fired for committing an immoral act and how to do it right.
Crime against morality
An immoral offense is an action that violates the norms of morality and morality, 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! An immoral offense can be committed by any of your employees, 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 the first 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 milder disciplinary sanction. And if there are no grounds for the recovery, then take other measures - talk heart to heart with the offender or contact the police.
Who performs educational functions?
Firstly. these, of course, are pedagogical workers - teachers of primary, secondary and higher educational institutions (including private schools), institutions additional education, as well as educators and nannies in kindergartens. Secondly. other employees whose labor function includes education - 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 *). Tutors and nannies working for private individuals also perform an educational function, determined by their employment contract and job description. This is well illustrated by the following example.
Spouses Lyudmila and Petr S., under an agreement with the Lastochka agency, hired a nanny Natalya 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 one day the owners noticed that the nanny came to work in a state of intoxication, behaved rudely and cheekily. The agency fired Natalya for committing an immoral act. The employee appealed the dismissal to the court, referring to the fact that the nanny should only look after the child, but not engage in his upbringing. However, the court refused to reinstate the plaintiff at work, because her job description contained a direct indication of the educational function. In particular, there was a clause that the nanny should form the child's cultural behavior skills.
Employees who, although they work in children's institutions, but do not perform educational functions, cannot be dismissed for committing an immoral offense.
The school cafeteria cook, Nina M., rudely yelled at third-grader Artem A., who was trying to get breakfast without waiting in line, and pushed him off the counter with force, causing the boy to fall and injure his knee. An employee was fired for committing an immoral act 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 offense can be committed at the place of work in connection with the performance of labor duties and outside the place of work or at the place of work, but not in connection with the performance of labor duties. Moreover, in the second case, the perpetrator can also be dismissed on this basis, however, the procedure for terminating the employment contract will be somewhat different **.
Question on topic
The teacher of the gymnasium was seen in assault - he hit the 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 personnel department (Moscow)
Yes, you can. As for the grounds for dismissal, the described actions can certainly be regarded as an immoral offense incompatible with the continuation of work (clause 8 of the first article 81 of the Labor Code of the Russian Federation). However, in this case, it is better to use the special grounds for dismissal provided for in subparagraph 2 of paragraph 4 of Article 56 of the Law on Education*. It sounds like this: the use, including a single one, of methods of education associated with physical and (or) mental violence against the personality of a student or pupil.
Please note that the fact of the misconduct of the teacher must be confirmed by written evidence. If the head or colleagues of the teacher became a witness, they can draw up an act about this. In other cases, a written complaint is required from the student or his parents, indicating the specific circumstances of the incident and attaching supporting documents (for example, a medical report). Upon receiving such a complaint, you must convene 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.
The question was answered by Dmitry GLADYSHEV,
Director of LLC Law Firm &ldquoConsult-Region&rdquo (Yaroslavl)
Dismissal for an immoral offense at the place of work is drawn up according to the rules for imposing a disciplinary sanction (Article 193 of the Labor Code of the Russian Federation). If the incident did not occur at the place of work (for example, the teacher was caught in abuse with their own children or in a fight with a neighbor), then 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 formalized under 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 about the misconduct (part five of article 81 of the Labor Code of the Russian Federation).
To dismiss an employee for an immoral act not related to job responsibilities, the employer must have sufficient evidence, such as a copy of the police report, a court order imposing an administrative penalty, and testimonies 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 honorably defend its position in court, the employer must clearly and logically build the dismissal process.
First of all, document the fact of immoral behavior of the employee. To do this, draw up an act (sample), collect written explanations of witnesses, complaints of victims (sample). Be sure to ask for an explanatory note from the perpetrator of the incident. If a medical examination of the victim or perpetrator was carried out (for example, in order to detect alcohol in the blood of the latter), 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 staff doctor, if there is one in the organization, or a medical institution. If the victim has beatings or other injuries, they turn to the trauma center. If administrative or criminal proceedings are initiated on the fact of an immoral offense, then the victim may be sent for examination to the forensic medical examination department. Remember that only a specially trained health worker (narcologist)*** can conduct a blood alcohol test.
When all the evidence of an immoral act is present, evaluate its severity. It is required to determine exactly whether this incident can serve as a basis for dismissal or whether it is sufficient to apply a milder disciplinary sanction to the perpetrator. Particular attention should be paid to immoral offenses committed in everyday life.
If an immoral offense has received public attention and has been written about in the media, save printed materials - they may be useful to you in court.
The question of the severity of an immoral act is very difficult problem requiring a comprehensive assessment of the circumstances of the incident, the identity of the perpetrator and other factors. Therefore, it is advisable to submit it for discussion by a specially created commission and formalize the recommendations of the commission in a protocol. Based on this document, the head of the organization will choose the measure of disciplinary action.
If, following the results of the investigation, the head of the organization came to the conclusion that the employee deserves the highest measure, proceed to formalize 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 (paragraph 8 of the first article 81 of the Labor Code of the Russian Federation). On the last working day, pay off the employee and give him a work book.
In conclusion, we note that when considering cases in court, such as those we talked about, employers usually have difficulty proving their case. Testimony of witnesses, who are often children, is inconsistent and ambiguous, and documentary evidence of immoral behavior is unconvincing or non-existent. Therefore, we advise you to build your position only on clear, reliable and non-contradictory 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.
