Dismissal of a person sentenced to imprisonment in Belarus. Dismissal of an employee sentenced to serve a sentence
At every enterprise, a situation may arise when one of the employees cannot continue to perform official duties due to serving a sentence in prison. If the employee faces a long imprisonment, the most appropriate action for the manager would be to dismiss the person sentenced to imprisonment. However, this procedure must be performed in accordance with the law.
Legal aspects
Criminal Code Russian Federation states that a criminal record is considered to be temporary or lifelong penalties provided for a person who has violated the law. If a person has a criminal record, their rights are limited, and in some cases a permanent ban on certain types of activities is established. And if an employee is sent to prison, it is quite possible to fire him, and not only as punishment for the act committed, but also due to the high risk of relapse.
Termination of employment relations with a person serving a prison sentence is carried out under the fourth paragraph of Art. 83.1 Labor Code, about which a corresponding note is made in the work book. But dismissal will be legal only after introductions court verdict V legal force, since until a decision is made in a criminal case, a person is officially considered innocent.
In addition, the convicted person has the right to file an appeal within ten days from the receipt of a copy of the verdict.
If the employee has not yet been convicted, but simply chose a restriction for him in the form of temporary isolation (i.e., detention) for a period preliminary investigation, there are no grounds for dismissal under the mentioned article, however, the accrual wages suspended during the investigation. At the same time, if the suspect was subsequently acquitted, the period of his stay in the pre-trial detention center is included in his work experience, since there was a requirement for absence from work. a respectful reason.
When assigning a suspended sentence, dismissal of a convicted employee is possible in cases where the committed act is incompatible with the continuation of work, casts a shadow on the professional qualities of the person or has a direct connection with his job responsibilities. These nuances are described in the relevant paragraphs of Art. 81.1 of the Labor Code, which should motivate the termination of employment relations after the court verdict enters into legal force.
If a decision on the case has not yet been made, but the employee is in custody, it is impossible to dismiss him in connection with a disciplinary violation - this action will be unlawful in the future can be appealed through court.
Labor relations with an employee sentenced to correctional labor, should be terminated under Articles 78 and 80 of the Labor Code, if there is written permission from the executive inspection. Other dismissal options will be considered a violation of the Labor Code.
Algorithm for terminating a contract
It is possible to dismiss an employee who has been sent to prison only if there is a document confirming the legality of the enterprise’s actions, so the first thing the employer should do to terminate the employment relationship is to request a copy of the conviction.
To do this, you can contact the relatives of the convicted person or send official request to court. As a rule, justice officials meet the enterprise halfway and issue a copy of the document.
After the necessary papers are received, the procedure is formalized in accordance with current legislation, namely:
In the future, a person who has served a prison sentence has the right to request that the organization provide him with a duplicate of the Labor Code, which does not indicate the reason for dismissal.
Dismissal by court decision
Separately, it is worth mentioning the case when an employee is sentenced to a punishment that deprives him of the right to continue his previous activities. In this situation, the organization not only has the right to relieve him from his position, but is obliged to do this within three days from the date of receipt of the copy court decision and notifications from criminal executive authorities. Dismissal must occur in the following way:
Termination algorithm employment contract dealing with an employee after his conviction is generally simple, but each specific situation may have its own nuances, therefore, if the manager is in doubt about making a decision, he should consult with a lawyer.
Dear experts, please clarify the following: the employee was sentenced to more than 8 years in prison. The court verdict came into force on July 15, 2016, but before the trial the employee was in custody for 6 months. What day should he be fired?
Answer
Answer to the question:
If an employee is sentenced to imprisonment and the sentence comes into force, then he can be dismissed under clause 4 of part 1 of Art. 83 Labor Code of the Russian Federation.
The date of dismissal will be the date the sentence comes into force.
The courts indicate that arrest does not apply to unexcused reasons for an employee’s absence from the workplace, since in this case nothing depends on his will, desire or unwillingness to fulfill his labor duties ( Resolution of the Moscow Presidium regional court dated 10/13/2004 No. 631). It is also noted that the detention or arrest of a person is made for committing illegal actions, not related to disciplinary offenses, for which the employer can apply disciplinary action.
Accordingly, such absence will not be considered absenteeism, which means that disciplinary sanctions, in particular dismissal, cannot be applied to the employee. However, there is no need to pay for the period of arrest.
While an employee is under investigation, he cannot be dismissed until the court verdict enters into legal force (Definition Supreme Court RF dated December 17, 2010 N 52-B10-3). The day of dismissal on this basis is the day the court verdict comes into force, and not the last actual day of work. In this case, you issue the order from the date when you received the court verdict that entered into force.
Based on Art. 129 of the Labor Code, wages are remuneration for the employee’s work. Since the arrested person cannot perform his duties, there is no basis for calculating his wages.
The legislation does not contain a clear procedure for registering an employee’s failure to appear at work due to detention (arrest). Therefore, it is best in this case to act according to generally established rules.
It is necessary to draw up a report regarding the employee’s absence from work. The document indicates the date and exact time of the employee’s absence, as well as the time the report was drawn up. The document must be drawn up daily before the employee returns to work or is dismissed (for example, the employee is sentenced to imprisonment). You can also receive a report or memo from the immediate supervisor of the arrested person regarding the employee’s failure to appear.
Next, you need to decide how to fill out the time sheet. If the employer does not yet know the reason for the employee’s absence, then the letter code “NN” (failure to appear for unknown reasons) or the digital code “30” should be entered on the time sheet. The same code can also be entered in cases where it is known from the very beginning that the employee has been arrested.
This is due to the fact that the unified form N T-12 (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1) does not provide an alphabetic or numeric code to indicate an employee’s failure to appear at work due to arrest.
Also sometimes they use the letter code “NB” (numeric - “35”) - removal from work. But this is not very correct. Thus, removal from work occurs only for certain circumstances, to which arrest does not apply. BUT: This code should be included in the report card only if the court suspended the arrested person from work and only from the moment specified in the decision
Based on the Application Procedure unified forms primary accounting documentation (approved by Resolution of the State Statistics Committee of Russia dated March 24, 1999 N 20) has the right to make changes to the time sheet. Consequently, he can enter an additional code indicating the absence of the employee due to arrest; these additions must be formalized by an appropriate order. (For example: ). For example, you can enter the code “NA”, but you can replace “NN” with another designation only after providing supporting documents.
If the employee was under arrest before the trial, then you should make a decision depending on the court decision. If a conviction is made that precludes the possibility of continuing work (imprisonment), then after the verdict comes into force you will dismiss the employee under clause 4 of part 1 of Art. 83 Labor Code of the Russian Federation. The date of the order will correspond to the date you receive the corresponding sentence (it can be given by relatives, a lawyer, you can request a copy of the sentence yourself from the court that issued the sentence). The date of dismissal will be the date the court verdict comes into force.
In the work book, make an entry according to the following example:
The recording of the wording in the dismissal order and the labor order must be the same.
For obvious reasons, you will not be able to familiarize the employee with the dismissal order. In accordance with Part 2 of Art. 84.1. TK F make a note on the order: “The employee was not familiarized with the order due to his absence from work on the day of dismissal (the employee was sent to the place of execution of the court sentence of imprisonment)”
On the issuance of documents upon dismissal:
In your case, the employee cannot receive a work book on the day of dismissal. The fact that an employee has been convicted does not relieve the employer of the obligation to send the employee a notice of the need to obtain a work record book or give instructions to send it by mail. Moreover, such a notice can be sent both to the employee’s place of residence before the conviction (at the address specified in the employment contract), and to the address correctional institution.
If an employee sends you written consent to send his work record book, then you will need to send it to the address indicated by him, and make a note in the logbook for recording the movement of work records about sending the work record book by mail.
If an employee gives a power of attorney to receive a work book, then the work book can be issued to a person who presents a properly executed power of attorney. The power of attorney can be certified by a notary. In a situation where an employee is sentenced to imprisonment, a power of attorney certified by the head of the criminal correctional institution at the place of serving the sentence will be equivalent to a notarized power of attorney.
An unclaimed work book, in the absence of an order for its forwarding or issuance by proxy, the employer is obliged to keep for 50 years. After serving the sentence, the employee can apply for it himself.
About the calculation:
Amounts accrued to the employee in the case of non-cash payments to employees in your organization must be made on the day of dismissal.
If you issue cash in cash, then these funds can also be issued on the basis of a power of attorney from the dismissed employee to the person specified in the power of attorney. If this does not happen, then the funds in accordance with Article 140 of the Labor Code of the Russian Federation You will have to issue it to the employee the next day after receiving the request from him.
Upon dismissal of this employee you need to make a settlement with him and pay compensation for unused vacation.
The issue of including the period of arrest in the length of service giving the right to annual leave has not been resolved by law.
There are two different positions:
- POSITION: Because courts recognize an employee’s absence from work due to arrest as a valid reason for absence, then this period must be included in the length of service giving the right to leave.
- POSITION: The opposite point of view boils down to the fact that this period is not included in the list (part 1 of Article 121 of the Labor Code of the Russian Federation) of periods that are included in the length of service giving the right to leave. In this connection, the length of service for determining compensation can be calculated on the date preceding the arrest. And based on the specified length of service, calculate compensation. In your situation, we believe that the second approach is more correct.
The choice of option remains with the employer.
Details in the materials of the Personnel System:
No you can not.
Detention or imprisonment is not recognized as grounds for termination of an employment contract. The basis for the dismissal of an employee is his conviction to a punishment that precludes the continuation of his previous work, in accordance with a court verdict that has entered into legal force (). For dismissal on this basis, it is necessary that the sentence imposes a type of punishment that excludes the possibility of working in the same place (for example, deprivation of the right to work certain activities or imprisonment). Thus, before a conviction is issued and it enters into legal force, the dismissal of an employee who is subject to criminal prosecution at the initiative of the employer is unlawful.
In the situation under consideration, in the work time sheet, until the moment of conviction or termination of criminal prosecution, the employee should indicate the letter code NB “Suspension from work (preclusion from work) for reasons provided for by law, without accrual of wages,” which corresponds to the digital code 35. If, for certain reasons, information about the whereabouts of a detained (custodial) employee is received late, the time sheet must indicate the letter code NN “Absence for unknown reasons (until the circumstances are clarified)” or the digital code 30. Conventions for drawing up a time sheet are given in , approved .
Ivan Shklovets,
- Situation:Is it possible to dismiss an employee who is in a pre-trial detention center due to the initiation of a criminal case?
- Answer: Is it possible to fire an employee who is in custody?
No you can not. The Labor Code of the Russian Federation does not contain such grounds for dismissal of an employee as detention.
An employee in custody can be dismissed only after he has been sentenced to such punishment as (). Such an employee can be dismissed no earlier than the court verdict enters into legal force. That is, the date of his dismissal will not be the last actual day of work preceding his detention, but the day the sentence enters into legal force. This conclusion also confirms arbitrage practice(see, for example, cassation ruling Saratov Regional Court dated January 26, 2012 No. 33-325/2012).
An employer can remove an employee from work only on grounds provided for by the Labor Code of the Russian Federation or other laws (). In particular, he must remove the employee from work at the request of the authorities or officials, authorized in accordance with the law (). These bodies include courts that issue decisions on the application of such a measure of criminal procedural coercion as temporary removal from office ().
Thus, the employer will be able to suspend an employee under investigation only if the court issues a ruling on temporary suspension ().
In the absence of such court order The employee under investigation retains his job. After all, the Labor Code of the Russian Federation does not provide for such grounds for removal from work as taking an employee into custody ().
There is no need to pay for the employee's time in custody. This conclusion follows from the provisions of the Labor Code of the Russian Federation, according to which wages are paid to an employee for fulfilling his duties. labor responsibilities and established labor standards. And in case of detention, the employee does not fulfill his labor function, therefore there are no grounds for paying him a salary.
The time of absence of the employee under investigation must be noted in. Not included in current regulations symbol for the period the employee is in custody. Therefore, employers should use the “NN” mark or the digital code “30” for this case, that is, failure to appear for unknown reasons. At the same time, commercial organizations can (Article , Law of December 6, 2011 No. 402-FZ,). Hence, commercial organization may independently establish a separate symbol for the time an employee is in custody.
If such an employee is suspended from work, then the report card should indicate the letter designation “NB” or the digital code “35”, used for removal from work for reasons provided for by law, without accrual of wages.
On whether it is possible to take into account the time of detention in order to provide annual leave, see the material.
Ivan Shklovets,
Deputy Head Federal service on labor and employment
3. Answer:How many times should an employee sentenced to imprisonment be fired? A copy of the court decision was received two weeks after it was issued
Dismissal of an employee sentenced to serve a sentence that precludes continuation of his previous work is possible only after the court verdict enters into force. The fact that the verdict has entered into force should be clarified in the court that made the relevant decision.*
4. Legal framework:
Labor Code of the Russian Federation
dated December 30, 2001 N 197-FZ
(edited on December 28, 2013)
Article 121. Calculation of length of service giving the right to annual paid leave
(as amended by Federal Law No. 90-FZ of June 30, 2006)
The length of service that gives the right to annual basic paid leave includes:
actual work time;
time when the employee did not actually work, but was behind him in accordance with labor legislation and other regulatory legal acts, containing norms labor law, collective agreement, agreements, local regulations, employment contracts, the place of work (position), including the time of annual paid leave, non-working holidays, days off and other rest days provided to the employee;
forced absence time illegal dismissal or suspension from work and subsequent reinstatement to the previous job;
the period of suspension from work of an employee who has not completed the mandatory medical checkup through no fault of one's own;
(as amended by Federal Law dated November 25, 2013 N 317-FZ)
the time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year.
The length of service that gives the right to annual basic paid leave does not include:
the time the employee is absent from work without good reason, including due to his removal from work in the cases provided for in Article 76 of this Code;
time of maternity leave until the child reaches established by law age;
the paragraph is no longer valid. - Federal Law of July 22, 2008 N 157-FZ.
The length of service that gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions includes only the time actually worked in the relevant conditions.
5. Shapes:Order on termination of an employment contract (dismissal) in connection with the conviction of an employee to punishment that precludes continuation of work
| Personnel Number | |||||||||||||||
| Kondratyev Alexander Sergeevich | 006 | ||||||||||||||
| (Full Name) | |||||||||||||||
| sales department | |||||||||||||||
| (structural subdivision) | |||||||||||||||
| Manager | |||||||||||||||
| (position (specialty, profession), rank, class (category) of qualifications) | |||||||||||||||
|
in connection with a sentence of imprisonment that precludes continued work, clause 4 of part 1 of article 83 of the Labor Code of the Russian Federation |
|||||||||||||||
| (grounds for termination (termination) of an employment contract (dismissal)) | |||||||||||||||
|
Base (document, number, date): |
verdict of the Saratov City Court |
||||||||||||||
| (employee statement, memo, medical report etc.) | |||||||||||||||
|
Supervisor organizations |
Director | A.V. Lviv | |||||||||||||
| (job title) |
signature) |
(full name) | |||||||||||||
According to clause 4, part 1, art. 83 of the Labor Code of the Russian Federation, an employment contract may be terminated due to circumstances beyond the control of the parties as a result of the employee being sentenced to punishment that precludes the continuation of the previous job. The application of such a punishment to an employee entails termination of the contract only if this punishment is imposed by a court verdict that has entered into legal force.
Termination of an employment contract on the specified basis is possible if the following conditions are met:
The court's verdict entered into legal force. In accordance with Art. 390 of the Code of Criminal Procedure of the Russian Federation, the court verdict comes into force after the expiration of the period established for appeal, if it was not appealed by the parties, or provided that the court decision appellate court this verdict was recognized as legal and justified;
It follows from the court verdict that the employer cannot continue with the employee labor Relations as a result of the punishment imposed on him by the last court verdict. For example, an employee is prohibited from engaging in certain activities within the framework of which he performs a labor function. It also excludes the possibility of an employee performing his previous work by imposing a sentence of imprisonment on him. A court sentence by which an employee is sentenced to a punishment that precludes him from performing his previous work may be canceled. After this, the employee has the right to be reinstated at his previous job, since there is no reason for dismissal. A person holding the position of such an employee may be dismissed under clause 2, part 1, art. 83 of the Labor Code of the Russian Federation, since the basis for reinstatement at work is the decision of a higher court to cancel the verdict on the basis of which the decision to dismiss was made.
Punishments that exclude the possibility of an employee continuing his previous job include:
a) deprivation of the right to hold office for public service, in organs local government or engage in certain professional or other activities (Article 47 of the Criminal Code of the Russian Federation). The corresponding sentence is mandatory for execution by the employer for whom the convicted person works. Based on the verdict, the employer is obliged:
No later than 3 days after receiving a copy of the court verdict and notifying the penal inspection, release the convicted person from a position that he is deprived of the right to occupy, or prohibit him from engaging in certain activities, send a message to the penal inspection about the fulfillment of the requirements of the sentence;
Submit, at the request of the penitentiary inspection, documents related to the execution of punishment;
If an employment contract with a convicted person is changed or terminated, report this to the penitentiary inspection within three days;
In the event of dismissal from the organization of a convicted person who has not served his sentence, make an entry in his work book about on what basis, for what period and what position he is deprived of the right to hold or what activity he is deprived of the right to engage in (Article 34 of the Criminal Executive Code of the Russian Federation) .
Please note that from January 1, 2020, the employer must include information about the basis and reason for termination of the employment contract in the information about labor activity, which he forms into in electronic format and submits to in the prescribed manner to the Pension Fund of Russia. It must be brought in strict accordance with the wording of the Labor Code of the Russian Federation or other federal law and with reference to the relevant article, part, paragraph of the article. In addition, if the employee is not subject to employment history, on the day of termination of the employment contract, the employer is obliged to provide him with information about his work activity with this employer (
"Human Resources Department budgetary institution", 2010, N 6
Question: The employee was convicted. Do we have the right to fire him? What date should I indicate in the work book?
Answer: The Labor Code of the Russian Federation provides for the possibility of terminating an employment contract in connection with the conviction of an employee to punishment, but only if the punishment excludes the possibility of continuing the previous work (Clause 4, Part 1, Article 83 of the Labor Code of the Russian Federation), that is, if as a punishment a measure was chosen in the form of arrest, imprisonment or deprivation of the right to occupy certain positions (engage in certain activities) (Article 44 of the Criminal Code of the Russian Federation). According to Art. 47 of the Criminal Code of the Russian Federation, deprivation of the right to hold certain positions or engage in certain activities consists of a prohibition to hold positions in the civil service, in local government bodies, or to engage in certain professional or other activities.
If the conviction is not related to the deprivation of the employee’s freedom or the right to occupy certain positions or engage in certain activities (for example, he was sentenced to correctional labor at the place of work), terminate the employment contract under clause 4 of part 1 of Art. 83 of the Labor Code of the Russian Federation is impossible.
It is possible to dismiss an employee on the specified basis only after the verdict has entered into legal force, since in accordance with Art. 49 of the Constitution of the Russian Federation, everyone accused of committing a crime is considered innocent until his guilt is proven in the manner prescribed by federal law and established by a court verdict that has entered into legal force. At the same time, according to Part 3 of Art. 84.1 of the Labor Code of the Russian Federation, the day of dismissal of an employee is the last day of his work, with the exception of cases when the employee did not actually work, but he retained his place of work (position). Therefore, if before the conviction the employee was under arrest or was suspended from work during the criminal proceedings, the day of his dismissal will be considered the day when the employer learned of the employee’s conviction, but not earlier than the day the court verdict entered into legal force.
In the work book convicted worker it is necessary to make the following entry: “The employment contract was terminated due to the employee being sentenced to a punishment that precludes the continuation of his previous work, in accordance with the court verdict that entered into legal force, paragraph 4 of part one of Article 83 of the Labor Code of the Russian Federation.”
If, according to a court verdict, an employee is sentenced to punishment in the form of deprivation of the right to occupy certain positions or engage in certain activities, an entry is made in the work book about on what basis, for what period and what position he is deprived of the right to occupy (what activities he is deprived of the right to engage in) ( clause 19 of the Decree of the Government of the Russian Federation dated 04/16/2003 N 225 “On work books”, as amended on 05/19/2008). For example, the wording may be as follows: “The employment contract was terminated due to a court verdict to deprive the right to engage in teaching activities for a period of two years, paragraph 4 of part one of Article 83 of the Labor Code of the Russian Federation.”
In addition, it should be remembered that according to Art. 84.1 of the Labor Code of the Russian Federation, on the day of termination of the employment contract, the employer is obliged to issue the employee a work book and make payments to him in accordance with Art. 140 Labor Code of the Russian Federation. However, the same article states that upon termination of the employment contract under clause 4, part 1, art. 83 of the Labor Code of the Russian Federation, the employer is not responsible for the delay in issuing the work book in the event of a discrepancy last day work with the day of registration of termination of employment relations. Therefore, after making the necessary entries in the work book, it is necessary to send a notification to the address where the sentence is served with a request for consent to send the work book by mail. If such consent is not given, the employer will be obliged to issue it to the employee no later than three working days from the date of the employee’s application.
N. N. Bulyga
Magazine editor
"Human Resources Department
Budgetary institution"
Signed for seal
According to clause 4, part 1, art. 83 of the Labor Code of the Russian Federation, an employment contract may be terminated due to circumstances beyond the control of the parties as a result of the employee being sentenced to punishment that precludes the continuation of the previous job. The application of such a punishment to an employee entails termination of the contract only if this punishment is imposed by a court verdict that has entered into legal force.
Termination of an employment contract on the specified basis is possible if the following conditions are met:
The court's verdict entered into legal force. In accordance with Art. 390 of the Code of Criminal Procedure of the Russian Federation, a court verdict comes into force after the expiration of the period established for an appeal, if it was not appealed by the parties, or provided that the decision of the appellate court recognized this verdict as legal and justified;
It follows from the court verdict that the employer cannot continue employment relations with the employee due to the punishment imposed on the employee by the last court verdict. For example, an employee is prohibited from engaging in certain activities within the framework of which he performs a labor function. It also excludes the possibility of an employee performing his previous work by imposing a sentence of imprisonment on him. A court sentence by which an employee is sentenced to a punishment that precludes him from performing his previous work may be canceled. After this, the employee has the right to be reinstated at his previous job, since there is no reason for dismissal. A person holding the position of such an employee may be dismissed under clause 2, part 1, art. 83 of the Labor Code of the Russian Federation, since the basis for reinstatement at work is the decision of a higher court to cancel the verdict on the basis of which the decision to dismiss was made.
Punishments that exclude the possibility of an employee continuing his previous job include:
a) deprivation of the right to hold positions in the civil service, in local government bodies or to engage in certain professional or other activities (Article 47 of the Criminal Code of the Russian Federation). The corresponding sentence is mandatory for execution by the employer for whom the convicted person works. Based on the verdict, the employer is obliged:
No later than 3 days after receiving a copy of the court verdict and notifying the penal inspection, release the convicted person from a position that he is deprived of the right to occupy, or prohibit him from engaging in certain activities, send a message to the penal inspection about the fulfillment of the requirements of the sentence;
Submit, at the request of the penitentiary inspection, documents related to the execution of punishment;
If an employment contract with a convicted person is changed or terminated, report this to the penitentiary inspection within three days;
In the event of dismissal from the organization of a convicted person who has not served his sentence, make an entry in his work book about on what basis, for what period and what position he is deprived of the right to hold or what activity he is deprived of the right to engage in (Article 34 of the Criminal Executive Code of the Russian Federation) .
Let us note that from January 1, 2020, the employer is obliged to include information about the basis and reason for termination of the employment contract in the information on labor activity, which he generates electronically and submits in the prescribed manner to the Pension Fund of the Russian Federation. It must be brought in strict accordance with the wording of the Labor Code of the Russian Federation or other federal law and with reference to the relevant article, part, paragraph of the article. In addition, if a work record book is not kept for an employee, on the day of termination of the employment contract the employer is obliged to provide him with information about his work activity with this employer (