Dismissal for failure to fulfill job duties. Dismissal for failure to fulfill official duties

Each employee of the organization has a certain list of job responsibilities in accordance with which he carries out his activities.

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The main responsibilities of a worker are stated in Article 21 of the Labor Code, and all issues and work rules are spelled out in detail in the local regulations of a particular company. Such acts include employment contracts, orders, and job descriptions.

A new specialist of the organization must be familiar with the job description, internal regulations and other internal documents of the company that are related to his labor functions.

Acquaintance is confirmed by signature.

What does the law say?

Normative base:

• Labor Code of the Russian Federation;
• Resolution No. 2 of the Plenum of the Supreme Court of the Russian Federation, 2004, according to which the Judicial authorities apply the norms of the Labor Code of the Russian Federation;
• local regulations of the company, job description, etc.

Violations for which dismissal is possible:

• Absence of a worker from the workplace, not supported by a valid reason (). Dismissal is also possible for repeated lateness to work.
• The employee’s reluctance to perform the functions assigned to him when labor standards or internal regulations change.
• Repeated gross violations in work activities and work hours. In case of a single violation, a disciplinary sanction is imposed on the employee.

The procedure for registering dismissal for repeated failure to fulfill job duties

Recognition of the facts

All facts of the economic life of any organization must be reflected in writing.

Failure by an employee to perform labor functions is reflected in the relevant act or memorandum.

Example:

In 2019, an employee of Garant LLC failed to submit an urgent report to the head of the organization in a timely manner; in connection with this, an act of dereliction of duty was issued.

Obtaining employee explanations

If the fact of non-fulfillment of official duties is recognized, a written explanation of the incident from the employee himself must be requested.

The request is made in two copies; on the employer’s copy, the employee puts his signature and date, confirming familiarization.

Failure to submit an explanatory note does not exempt the employee from the penalty.

Explanatory example:

Example of an employee's explanatory note

If paper is provided:

• explanations are studied, and a conclusion is made about the validity of the reasons that led to the failure to complete the work;
• the presence and severity of the employee’s guilt is determined;
• the situation preceding the violation is studied;
• the employee’s attitude towards work before the incident is studied.

If the violation does not entail serious consequences for the organization, the employer may limit itself to imposing a disciplinary sanction on the employee - he is reprimanded or reprimanded.

In a more serious situation with significant guilt of the employee, the employment relationship with the offender may be completely terminated.

If the employee refuses to give an explanation, then the employees draw up a report:

Example of an act on failure to provide written explanations

Deadlines

The employee is given two days from the date of familiarization with the request to provide written explanations of the violation.

If the employer decides to punish the employee, he must do so within a month from the date the violation was discovered. This period is extended by the number of days of illness of the employee, if any, or time is added to take into account the opinion of the representative body of workers.

If the offense is discovered later than six months after it was committed, the penalty is no longer applied.

If a violation is revealed by an audit, internal or external audit, then the employee is subject to punishment within two years after its commission.

Dismissal of some employees is not allowed even if failure to fulfill official duties is detected without good reason.

You cannot fire:

• a pregnant woman;
• employee at ;
• employee located in .

Preparation of personnel documents

To completely terminate the employment relationship with the offending employee, the employer draws up a document.

An example of filling out a dismissal order form

The employee must be familiarized with the order.

If he refuses to appear at the HR department to familiarize himself with this order, the employer records this circumstance with the appropriate act:

The paragraph on the grounds for dismissal indicates the previous document on the application of disciplinary measures to the employee, as well as the act on the new violation.

Work book and personal card

When making an entry in the employee’s work book, a reference is made to Article 81 of the Labor Code of the Russian Federation and the reason for dismissal is indicated.

Example of an entry in a work book

Familiarization of the dismissed person with the entry in the work book is confirmed by a signature on the employee’s personal card. The work record is also transferred there.

The work book must be issued on the last working day of the offender.

He puts his signature in the work book.

Payments and compensation to employees

Dismissal for repeated failure to fulfill job duties is not supported by the payment of any special benefits.

On the last day of work, the employee is given all the money he has earned, including if it was earned and not used.

The former employee must also be given a certificate of earnings for the last two years of work.

Employer's liability

The employer must approach the dismissal of the offending employee with special attention.

If he does not take into account some of the nuances, the employee will be able to challenge the decision and recover compensation from the employer.

If the employer made any mistakes and the result was disputed by the employee, the Federal Labor Inspectorate will hold the employer administratively liable.

Dismissing an employee under an article for failure to fulfill official duties is a complex procedure with a lot of nuances. Since the initiator of the dismissal procedure in a particular case is the employer, he must strictly comply with the conditions established by law.

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Basic provisions

The basis for severing the labor relationship between an employee and an employer at the initiative of the employer due to the employee’s failure to perform job functions is article number 81 of the Labor Code, in particular:

• Part 1, paragraph 5 - repeated failure by a subordinate to fulfill the labor duties assigned to him if the person has an outstanding penalty at the moment;
• Part 1, point 6 - a one-time, but gross violation of duties.

The main list of functions assigned to a subordinate is established by article of the Labor Code number 21, and a detailed and complete list must be specified in instructions, orders and, of course, employment contract.

At the same time, the employee becomes familiar with the range of cases assigned to him, specified in all regulations related to his activities, which is regulated article number 68 of the Labor Code, and signs with his own hand.

Accordingly, if the employment contract does not specify the duties of the employee, and the employer has not familiarized him with the instructions regulating the list of functions, bringing the subordinate to disciplinary liability and the person under the relevant Article 81 of the Labor Code will be quite problematic process.

Dismissal under paragraph 5 of Article 81 of the Labor Code is one of the measures of disciplinary liability; it is important for the employer to strictly follow the procedure for bringing it to justice.

It is important to remember, in accordance with Article No. 194 of the Labor Code, the maximum period during which a disciplinary sanction is valid is one year.

After this time, it is extinguished and the employee, unless another similar measure is applied to him, is considered not to have a penalty.

In addition, the employer at will, at the request of the immediate management of the employee or the subordinate himself, may remove the disciplinary sanction from the offender earlier, before the end of the year.

What reasons could there be?

If a subordinate again violated labor duties during the period of disciplinary action, then the employer has the right to dismiss him in accordance with the fifth paragraph of the first part of Article 81.

In order for the legality of dismissal not to be questioned, it is necessary to simultaneously comply with such conditions:

In accordance with paragraph 6 of Article 81, an employer may dismiss an employee under article even if the subordinate has not previously committed any offenses. The grounds are such actions of the subordinate as:

1. absenteeism, that is, failure to show up for a shift for 4 or more hours from the moment it began;
2. the employee appeared at the workplace in a state of any type of intoxication;
3. disclosure of secrets, including personal data of another employee, that became known to him as a result of the performance of work duties;
4. committing embezzlement or theft established by a court verdict or decree;
5. identification of violations of labor protection requirements and rules, which could or have led to serious consequences.

The identified violation must be recorded by drawing up an appropriate act; otherwise, it cannot be considered sufficient grounds for dismissal.

In this case, it is necessary to take within 2 days the subordinate has a written explanation of the reason for the misconduct. If the reason for the misconduct is not significant or the employer does not consider it as such, the employee may be dismissed.

Detection of the fact of non-fulfillment of duties by an employee

If the employer has identified a violation committed by an employee, it is necessary to record the error so that the employee subsequently does not have the opportunity to challenge his dismissal under the article by appealing to the judicial authorities.

Common procedure for identifying and fixing violations are as follows:

An employee cannot be fired if an audit does not reveal any misconduct.

Requesting an explanation from the employee

If an employee makes a mistake in his work activity, his manager must draw up a memo that describes the current situation in detail.

In turn, the employee writes an explanatory note indicating the reasons for the offense; this possibility is regulated Article of the Labor Code number 193.

Find out how to write an explanatory note correctly from our article.

When demanding an explanation from an employee, managers should not forget about statute of limitations- So:

• If more than six months have passed since the violation, the employer cannot legally force the employee to write an explanatory note.
• If a violation is discovered not immediately, but after some time, no more than a month should pass from the date of its discovery, since in the future the manager’s demands to write an explanatory note to his subordinates will be illegal.

After management checks the explanatory note written by the employee, a decision will be made on the advisability and necessity of applying disciplinary measures to the subordinate.

If a positive decision is made, there will be a corresponding order has been issued, supported by documents regulating the range of employee responsibilities and confirming the negative consequences that arose as a result of improper performance of his job duties.

Disciplinary action

The employee is obliged to fulfill the job duties specified in the employment contract, as well as to comply with the rules and norms of labor discipline established at the enterprise and its regulations, which is regulated by Article 21 of the Labor Code.

In accordance with Article No. 22 of the Labor Code, the employer may require the employee to fulfill the above-mentioned duties, and in case of refusal or inadequate performance of obligations - bring a subordinate to disciplinary action.

There is only 3 types of disciplinary sanctions, which are applied legally. These, in accordance with article number 192, include:

1. comment;
2. issuing a reprimand;
3. dismissal of an employee.

When imposing a penalty, you should focus on the severity of the subordinate’s misconduct, since dismissal for a minor reason is often considered illegal.

Employers may not apply other disciplinary measures not prescribed by law, for example, refusal to pay bonus subordinate for late attendance at the workplace.

The detailed procedure and rules for attracting a subordinate to this type of responsibility are indicated in the Labor Code article number 193.

When deciding on punishment for a misdemeanor, it should be remembered that for each violation a penalty can be imposed once.

How to fire - instructions

When identifying a violation that is grounds for imposing a penalty, you should check whether the misconduct will be a legal basis for dismissal. To do this, you must comply with the following algorithm of actions:

1. An explanatory note is taken from the employee.
2. Check the statutory limitation periods for committing an offense and imposing a previous penalty.
3. Make sure there are no restrictions on the dismissal procedure.

Thus, Article 81 prohibits the termination of an employment contract due to failure to fulfill official duties with an employee who is on sick leave or on vacation. And Article 261 states that dismissal for this reason women will be illegal.

4. Registration of dismissal and imposition of a disciplinary sanction on an employee is formalized by the Order.

In this case, the employer can issue either two orders or both procedures in one, which refers to the imposition of a penalty in the form of dismissal, which is the reason for terminating the employment contract. After issuing an order, the manager must familiarize his subordinate with it within three days.

5. The next stage is making an entry in the work book.

In this case, the entry must correspond to the text of the TC. Full payment and issuance of documents to the employee is carried out on the last working day.

An employer may dismiss an employee under an article for failure to fulfill official duties. When carrying out the procedure, it is necessary to strictly observe the norms established by law and objectively assess the severity of the offense committed by the employee, then the decision made is practically It will be impossible to appeal in court.

Dismissal of an employee for repeated violation of labor duties - watch the video:

For the first offense of the employee

1. It is necessary to check whether there is a document according to which the employee is obliged to fulfill the job duty that he violated (failed to fulfill). An employee can be held accountable for committing a violation (non-fulfillment) of some job duty established by a clause in the job description, internal labor regulations, employment contract, etc. Violation is legal Not

2. Upon the first violation, a report is drawn up by the person who discovered the violation. The note makes references to the violated clauses of the job description, employment contract, or other document. In the report, you can make references to documents confirming the violation (audit report, document about defects in work, imposing a fine on the organization for a violation committed by an employee, etc.)

3. It is necessary to establish the absence of valid reasons for the employee’s disciplinary offense, to make sure that the employee certainly will not be able to justify it in the future with his illnesses, illnesses of relatives, weather conditions, accidents, etc.

For the first violation, a written explanation (explanatory note) is taken from the employee in order to find out its circumstances and reasons. If it follows from the explanatory note that the employee, for example, was late for work or did not complete the management’s assignment for a good reason, then the explanatory note is registered, placed in the file and cannot be considered as a basis for applying a disciplinary sanction or taken into account when dismissing under clause 5. .1 Art. 81 Labor Code of the Russian Federation. If it follows from the explanatory note that the employee does not have a valid reason for committing the offense (i.e., there are no supporting documents or other evidence), then the employee’s explanatory note becomes the basis for issuing an order to apply a disciplinary sanction.

If after two working days the employee has not provided the specified explanation, then a corresponding act (on the refusal to give an explanation) is drawn up. It is advisable that the act be certified by three employees.

4. It is necessary to find out whether the deadline for bringing the employee to disciplinary liability has expired. (Disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees. Disciplinary sanction cannot be applied later than six months from the date of the commission of the misconduct, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time frame does not include the time of criminal proceedings under Art.

5. An order is issued to apply a disciplinary measure to the employee in the form of a reprimand or reprimand. See an example of filling out an order for disciplinary action. Remark and reprimand according to Art. 192 of the Labor Code of the Russian Federation are penalties. They are not punitive measures and are not counted towards dismissal under clause 5, part 1 of Art. 81 of the Labor Code of the Russian Federation, deprivation of bonus, reduction of category, rank. It is recommended to make an order to apply a disciplinary sanction motivated, justified, with references to the clauses of the contract or instructions that were violated, to documents that confirm this, for example, memos, notifications of the Federal Tax Service of the Russian Federation about the delay in filing a declaration by an accountant, if the accountant is fired.

6. The order is registered in the Order (Instructions) Register. The court can also check this journal in the future if it suspects that the order was prepared “retroactively.”

7. The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act of refusal to familiarize himself with the order is drawn up. It is advisable that this act be signed by three employees.

For the employee’s second offense

8. Within 1 year from the moment a disciplinary sanction is imposed on an employee for the first disciplinary offense, a second violation (failure to fulfill) of some labor duty follows. It is necessary to check whether there is a document according to which the employee is obliged to fulfill the job duty that he violated (failed to fulfill). An employee can be held accountable for committing a violation (non-fulfillment) of some job duty established by a clause in the job description, internal labor regulations, employment contract, etc. Violation is legal Not assigned duties do not count.

9. Upon the fact of the second violation, a report is drawn up by the person who discovered the violation. The note makes references to the violated clauses of the job description, employment contract, or other document. In the report, you can make references to documents confirming the violation (audit report, document about defects in work, imposing a fine on the organization for a violation committed by an employee, etc.)

10. It is necessary to establish the absence of valid reasons for the employee’s second disciplinary offense, to make sure that the employee certainly will not be able to justify it in the future with his illnesses, illnesses of relatives, weather conditions, accidents, etc.

For the second violation, a written explanation (explanatory note) is taken from the employee to find out the reasons for it. If it follows from the explanatory note that the employee, for example, was late for work or did not complete the management’s assignment for a good reason, then the explanatory note is registered, placed in the file and cannot be considered as a basis for applying a disciplinary sanction or taken into account when dismissing under clause 5. .1 art. 81 Labor Code of the Russian Federation. If it follows from the explanatory note that the employee does not have a valid reason for committing the offense (i.e., there are no supporting documents or other evidence), then the employee’s explanatory note becomes the basis for issuing an order to apply a disciplinary sanction.

If after two working days the employee has not provided the specified explanation, then a corresponding act is drawn up (an act of refusal to give an explanation). It is advisable that the act be certified by three employees.

11. It is necessary to find out whether the deadline for bringing the employee to disciplinary liability has expired, because The type of dismissal in question is a disciplinary sanction, therefore the provisions of Art. 193 Labor Code of the Russian Federation. (Disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees. Disciplinary sanction cannot be applied later than six months from the date of the commission of the misconduct, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time frame does not include the time of criminal proceedings under Art.

12. Next, a dismissal order is issued (on the application of a disciplinary sanction in the form of dismissal for the second violation). The unified form T-8 is used, approved by the Decree of the State Statistics Committee of the Russian Federation on January 05, 2004. See an example of filling out an order.

13. The order is registered in the Order (Instructions) Register.

14. The employee must be familiarized with the order (instruction) of the employer to terminate the employment contract against signature. In the event that an order (instruction) to terminate an employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it against signature, a corresponding entry is made on the order (instruction). This is stated in Art. 84.1 Labor Code of the Russian Federation. If an employee refuses to familiarize himself with the order to terminate the employment contract, it is also recommended to act (an act of refusal to familiarize himself with the order), which is certified by the signatures of the originator and two employees. This document may be useful in court as additional evidence that the employer is right.

15. After this, a full settlement is made with the employee, monetary compensation is paid for unused vacation, wages and other payments due.

16. A record of termination of the employment contract is made in the work book and personal card. The resignation letter may look like this:

“Dismissed for repeated failure to fulfill labor duties without good reason, paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation.” Or: “The employment contract was terminated at the initiative of the employer due to the employee’s repeated failure to fulfill labor duties without good reason, paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation.”

The employee certifies with his signature the entries in the work book and the entry in the personal dismissal card.

17. A copy of the work book of the dismissed employee is made for the archive of the enterprise. The employee is given a work book on the day of dismissal. An entry about this is made in the Book of Accounting for the movement of work books and inserts for them. If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. Notifications are recorded in the Notification Log.

Keep in mind:

If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book. Upon written request from an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee’s application.

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Dismissal for repeated failure to fulfill job duties is carried out taking into account current labor legislation. The article contains step-by-step instructions for dismissal, samples of documents that the employer must issue.

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On what basis is dismissal carried out for repeated violation of labor discipline?

Dismissal for repeated failure to fulfill job duties is carried out if:

An employee repeatedly violates labor discipline without good reason;

Does not fulfill his duties in full;

Violates deadlines established by the employer.

Such grounds for termination of an employment contract are provided for in paragraph 5 of part 1 of Article 81 of the Labor Code of the Russian Federation.

Attention! Dismissal for repeated failure to fulfill job duties is possible if the unfulfilled job functions were actually assigned to the employee and secured by relevant documents, for example, an employment contract or job description. Otherwise, the employee will appeal the disciplinary sanction imposed on him and will refer to the fact that his duties did not include those that he did not fulfill, in the opinion of the employer.

How to fire for failure to fulfill job duties: step-by-step instructions

Dismissal for repeated failure to fulfill job duties is carried out according to the rules specified in Article 193 of the Labor Code of the Russian Federation:

Step 1. We record an employee violation.

Step 2. We document the fact of violation. For this purpose, you can draw up a memo, etc.

Step 3. We take a written explanation from the employee.

Step 4. We draw up an act if the offender refuses to give a written explanation. Experts at Sistema Personnel will tell you how to correctly draw up an employee’s absence report from the workplace.

Step 5. Taking into account all the available facts, we make a decision to impose a penalty.

Step 6. We fill out the order and present it to the employee against his signature.

Step 7. We draw up an act of refusal to sign the order if such an incident occurred.

Step 8. We make an entry in the work book and personal card of the employee.

Questions and answers from the HR System expert

Is it possible to fire an employee for repeated failure to fulfill job duties if he wrote a letter of resignation of his own free will?

Says Ivan Shklovets, Deputy Head of the Federal Service for Labor and Employment

Labor relations with an employee who has submitted a resignation letter of his own free will are terminated upon expiration of the notice period for dismissal (Article 80 of the Labor Code of the Russian Federation). Before the expiration of the specified period, you can...

Dismissal for repeated failure to fulfill job duties: order

An order to terminate an employment contract due to repeated failure to fulfill official duties is drawn up after all evidence of the fact has been collected, the employee has given a written explanation of the misconduct, or an act of refusal to issue it has been drawn up. The order is drawn up on a unified form No. T-8 or on a form developed and approved by the organization. The draft order will be agreed upon with the trade union if the violator was a member of this organization. Within three days, the employee is familiarized with the order and signed. This period does not include the time the offender is absent from work.

The entry is entered into the work book, and the employee’s personal card is closed.

An expert from the magazine “Personnel Business” will tell you. From the article you will learn when several violations are not recognized by the system. Is it necessary to assess the consequences of an offense? What penalties cannot be applied?

Terms of dismissal for repeated violation of labor discipline

Dismissal for repeated failure to fulfill job duties is carried out within the time limits specified in Part 3 of Article 193 of the Labor Code of the Russian Federation. The employment contract must be terminated within one month from the moment the misconduct is discovered. This period is suspended for the duration of vacation, illness of the employee, as well as for the period necessary to coordinate the dismissal of a trade union member with the trade union organization.

An expert from the magazine “Personnel Business” will tell you what to do if. From the article you will learn what documents to check before punishing for an offense. How to confirm that an employee did not complete a task. Is it possible to fire a benefit recipient for one violation?

Dismissal for repeated failure to fulfill job duties is possible if an employee repeatedly violates labor discipline without good reason and does not perform the functions assigned to him in full, within the deadlines established by the employer. Termination of a TD is carried out according to the rules specified in Article 193 of the Labor Code of the Russian Federation. It is necessary to terminate the employment relationship for a committed offense within one month from the moment it was discovered.

As practice shows, employers often ask the question: “what to do if an employee is negligent in the functional responsibilities assigned to him when concluding an employment contract”?

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The first step in this situation is to determine what constitutes “failure to fulfill labor duties” before making any decision and taking any measures against the employee.

What does it mean

The main labor duties are established by the Labor Code, which provides clear explanations for them. But the functional responsibilities must be described in detail in the employment contract that the employer concludes with the employee.

In addition, the enterprise must develop instructions on job responsibilities. Employers of some enterprises enshrine them in local acts, collective agreements, and orders.

Functional or job responsibilities in accordance with the requirements of labor legislation are determined by the profile of the enterprise, its main productive activities.

The concept of “job duties” denotes the main task that an employee of a certain position must perform at a specific facility, part of the technological chain of the work process.

As a rule, its main task consists of specific work processes and operations. For example, monitoring the timely execution of the preparation of working documentation.

The employee is obliged to enter information about registered documents into the computer database, make a note about the deadlines for their submission, and draw up a report on implementation.

In this case, the employee’s responsibilities include compliance with:

• internal labor regulations;
• established deadlines for submitting documentation;
• ethical standards of labor communication;
• confidentiality of proprietary information.

If an employee fails to fulfill his job duties, the employer has the right to apply disciplinary sanctions to him, the type of which depends on the severity of the offense committed by the employee.

According to generally accepted rules, the employee is subject to a verbal reprimand for the first violation, a written reprimand for the second with an entry in the work book, and, as a last resort, dismissal with the wording “under the article for systematic failure to fulfill functional duties.”

Dismissal procedure

The form contains:

• information about the employer, his full name, legal address;
• the date of commencement of the employment relationship with the employee;
• personal data of the employee;
• information about the position held, workplace.

It must contain information on previously drawn up reports, acts, explanatory notes confirming the facts of committed violations of labor discipline.

The order must indicate the basis for dismissal in accordance with the instructions, the measures taken in response to facts of failure by the employee to fulfill his duties.

What could be the consequences?

The employer is obliged to familiarize the hired employee with the job description and his responsibilities when concluding an employment contract with him.

After becoming familiar with future responsibilities, the employee must, in accordance with the instructions of the Labor Code, sign in the appropriate journal.

The procedure is carried out before the employment contract is signed. If it is not carried out, the employer is deprived of the right to apply sanctions against him, including dismissal for failure to perform official duties at the assigned workplace.

The employee must also be familiarized with internal regulations and local regulations that are directly related to the performance of his job duties.

Failure to fulfill functional duties is included in the number of violations of labor discipline. An employee can be dismissed on this basis if:

• Previously, any form of disciplinary action was applied to the employee due to failure to fulfill official duties;
• the employee does not have a valid reason to explain the violation related to the failure to fulfill work duties.

For the first violation, the employer has the right to reprimand by making an oral reprimand in accordance with the resolution of the plenum of the Supreme Court, which was published in March 2004. If the employee continues to commit violations, he will be given a written reprimand.