How to fire an employee if he doesn't want to quit

Self-care

Termination of official activity at one's own request requires filing an application addressed to the director of the organization at least 2 weeks before the date of dismissal. It is not necessary to indicate the reasons for terminating the activity in the document; the phrase “I ask you to resign at your own request” is sufficient. The applicant's signature and the date of preparation of the document must be indicated.

After registering the application, the enterprise must issue an order to terminate official activity. In the paper you need to indicate the details of the application for dismissal and familiarize the citizen with the document, with the latter’s signature.

On the day of dismissal specified in the application, the work book is returned to the former employee with a note of voluntary dismissal, order number and date.

A calculation is made that includes the following funds due to the employee:

wage;
monetary compensation for unrealized vacation days;
other monetary payments established by the employment agreement.

The work period is calculated from the date of application and is 2 weeks. By mutual agreement between the employer and the former employee, such a period can be shortened or canceled.

The employee does not want to leave

How to fire an employee if he does not want to quit? An employee’s refusal to resign voluntarily is absolutely legal. But if an employer needs to part with an employee, there is a legal way. This method represents the initiative to terminate the activity on the part of the employer and employee.

The launch of the dismissal procedure on the basis of a peace agreement begins with a discussion of all conditions. Next, a document is drawn up, indicating the wording “by agreement of the parties”, the conditions, the date of preparation, the day of completion of the activity, and the signatures of the parties. The organization issues an order to terminate the employment relationship and familiarizes the employee with this document against signature.

On the day of dismissal, the citizen is given a work book with the corresponding entry, date and order number, and is given a copy of the agreement. The funds due to the person are paid. Quite often, when using the method of dismissal by amicable agreement, the employer offers the former employee a lump sum payment to alleviate moral damages. The amount of compensation is negotiated privately.

How to fire an employee if he does not want to leave himself?

Labor legislation provides for three options for terminating the employment relationship between an employee and an employer:

In the first two cases, the issue is resolved amicably and calmly, but what can the employer do if the employee himself does not want to leave, but it is simply necessary to fire him. The Labor Code of the Russian Federation does not allow employers to fire employees just like that; a good reason is required .

This reason could be:

staff reduction or termination of the organization's activities;
the employee’s inadequacy for the position held;
violation of labor discipline by an employee.

Reasons to fire

In addition to peaceful ways to terminate an employment relationship with an employee, there are ways to dismiss on the basis of violations.

The following reasons are considered as such:

inadequacy for the position held;
negative results during certification;
disciplinary violations;
failure to fulfill prescribed duties;
intoxication, theft, damage to the tenant's property;
failure to comply with the internal regulations of the enterprise;
disclosure of trade secrets.

If he's playing truant

To legally dismiss an employee for violation of discipline through absenteeism under the following conditions:

the period of absence is more than 4 hours in a row;
absence of the employee from his assigned workplace for the prescribed period;
lack of a valid reason explaining absenteeism.

The presence of all of the above conditions gives the employer the right to dismiss the employee. The procedure involves the following steps:

Drawing up an absenteeism report indicating the employee’s data, the date and time of his absence from work, and the signatures of 2 witnesses to the violation of discipline.
Requirement to explain the reasons for the citizen’s absence from service.
Drawing up a report to the director in any form about the presence of absenteeism.
Issuance of an order to terminate the employment agreement listing evidence of absenteeism. The dismissed citizen should be familiarized with the order within 3 days from the date of its publication.
Making the appropriate entry, order number and date of dismissal in the citizen’s work book.
Issuance of labor and payment of the amount due to the former employee on the day of dismissal from service.

Legal methods of dismissal

In the event of wrongful termination, an employee has the right to sue the employer, so it is important to act within the law. However, the Labor Code also took care of the rights of managers and allows them the following actions:

Reaching a peace agreement . This is the best option because it offers certain advantages for both the employer and the employee. The first will have confidence that a claim will not be filed against him, and the second will avoid a negative mark in the work book. You can invite the employee to write a letter of resignation on his own initiative, or you can draw up a mutual agreement to terminate the employment relationship. In the second case, management is obliged to pay the employee all due compensation. However, not every employee will agree to such an offer. In case of refusal, it is not possible to remove him from office in this way.
Dismissal for serious misconduct. The employer has every right to take disciplinary action against an employee for a gross violation on his part. In some cases, even dismissal is possible. At the same time, the list of grounds is quite extensive, so the manager will have no doubts about how to fire an employee who does not want to leave if he commits gross violations or does not fulfill his duties.
Staff reduction . If the main purpose of removing an employee from a position is to save material resources, then this basis can be used. However, it is important to remember that this method requires strict adherence to the rules and is associated with considerable financial costs for the employer.
Removal from office during the probationary period . When you need to fire an employee if he does not want to quit, having a probationary period greatly simplifies the matter. However, even in this case, many nuances and features must be taken into account.
Repeated violation of labor discipline . Even if the employee has not committed serious gross misconduct for which he can be immediately removed from his position, he can still be dismissed “under the article” if several disciplinary sanctions have been applied to him.
Inconsistency with the position held . If, during the certification process, the commission reveals that the employee has insufficient qualifications, the boss has the right to fire him.
Dismissal form for managers . This method is only relevant for employees holding managerial positions. When a problem arises and you need to decide how to fire an employee if he does not want to write a statement, leaving by changing ownership is suitable. Sometimes management deliberately changes ownership in order to get rid of some employees.
Changing the terms of the employment agreement . Management may change working conditions for some positions or the entire company and make the work of specialists unprofitable. If employees do not agree to work under the changed conditions, the manager will be able to fire them subject to certain rules.

It is important to remember that there are special categories of employees who cannot be dismissed at the personal request of the manager under any circumstances.

A pregnant woman cannot be removed from office, even if she has committed a gross violation. Also, the boss has limited options in relation to an employee who has a small child under 3 years old, or an employee who is the only breadwinner in the family. Each of the listed grounds has its own nuances and features, so they need to be studied in more detail separately.

At your own request or agreement

Very often, employers do not know how to fire an employee who does not want to leave on his own or ask him to leave by mutual agreement of the parties. However, there are methods that can be used to ensure that an employee makes such a decision, even if he is not inclined to agree with his superiors.

To begin with, you should politely clarify with the employee why he does not want to change his place of work and ask how the employer can help him. Perhaps the employee will agree to an additional amount accrued by agreement of the parties, or he needs positive recommendations that may be useful in future employment. However, not every employee will accept such conditions.

In some cases, managers begin to threaten employees and remind them that a negative entry in the work record and a bad recommendation will greatly complicate employment.

However, such methods are illegal. Instead of agreeing to dismissal at personal request, the employer may be sued.

It is best to use the methods proposed by law. The manager has the right to keep records of the arrival and departure of all employees, as well as issue orders in writing with acceptance certificates and record all work results and errors. In this case, the employer will be able to find a suitable reason for dismissal.

In addition, there is another relevant method when the manager discusses how to competently fire an employee if he does not want to quit. It is very convenient if the employment contract clearly states the working conditions, but there is the possibility of certain adjustments. For example, management may set an employee a low salary or may not indicate the exact location of work within a specific area.

Then management can deprive the worker of bonuses or often transfer him to a new place without his personal consent. The last option is relevant if there are several representative offices of the company in the city, for example, if the employee holds the position of sales consultant, and the company has many stores.

The above methods are legal, but they do not always give the desired result. Management must remember that even resignation on personal initiative can be challenged in court if the employee was forced to resign. If the employer has achieved an agreement between the parties, it is almost impossible to challenge the dismissal.

For gross violation

There are many reasons why an employee may be dismissed for serious misconduct. However, each such violation must be certified in a strictly established manner. There are the following types of inconsistencies for which an employee can be fired after a one-time occurrence:

Truancy . The concept implies the absence of an employee from his place for more than 4 hours in a row, provided that he does not have any good reason for this.
Intoxication . Coming to work under the influence of alcohol or drugs is a sufficient argument for removing an employee from his position. In this case, the employer must attest to the fact of intoxication.
Disclosure of official secrets . In this situation, the boss must have sufficient evidence that access to information occurred while the employee was performing his official duties.
Theft or damage to property . In this case, the fact that the theft was committed at the workplace must be proven. Of course, a corresponding court decision is necessary.
Failure to comply with labor safety rules . Such a violation is valid only if labor protection conducted an investigation and the offense entailed serious consequences or was at risk of their occurrence.

The presented list contains all the grounds under which a person can be dismissed in the event of a one-time violation. In this case, the manager is obliged to take the following actions:

Conduct an official investigation into the circumstances that occurred.
Ask the employee to write an explanatory note.
Issue an order to remove the offender from office.
Give the employee the funds and documents due to him.

If dismissed for committing a gross violation, the decision can be challenged by the employee in court. It is also important to remember that an employee cannot be removed from duty if absenteeism occurs for a valid reason. When the state of intoxication has not been certified by a doctor and the employer does not have the appropriate certificate, the employee also cannot be fired.

Notification to the employee of dismissal and issuance of the documents due to him must be made in the presence of witnesses and with their signatures. If the employee refuses to accept the documents, they are required to witness his decision.

How to force someone to write a statement

There is one way, for non-compliance with the position held, but this requires an existing disciplinary sanction for the same reasons.

Registration of dismissal includes collecting evidence of a repeated violation, checking the job description, explaining the reasons for non-fulfillment of duties by the employee in writing, and issuing a dismissal order.

After registering the order, a corresponding entry is made in the work book. The dismissed person is paid all the money due, is given a work book, and the former employee leaves his previous place of work.

How to competently fire an employee?

It is incredibly difficult to fire a full-time employee without complying with numerous formalities. Any mistake by a corporate personnel officer or lawyer is fraught with the risk that the court will side with the employee: force the company to pay compensation to the illegally dismissed person, pay for the time of forced absence and reinstate him in his position.

In recent years, the number of courts on illegal dismissals has increased and most often cases are decided in favor of workers. The court always takes into account that the employee is not legally savvy. Therefore, any failure to comply with formalities on the part of the employer is interpreted in favor of the employee.

Typically, companies try to part ways with employees amicably. After a short, sincere conversation, the employee writes a statement “on his own” and calmly, two weeks later, receives a work book.

But what should a manager do if an employee does not want to resign “of his own free will”?

Corporate lawyers usually offer three relatively legal ways to fire someone.

Dismiss for inadequacy of the position held.

The Labor Code contains Article 81, paragraph 3, “Termination of an employment contract at the initiative of the employer,” which states that “an employment contract may be terminated by the employer in cases ... of the employee’s inadequacy for the position held or the work performed due to insufficient qualifications, confirmed by certification results.”

Therefore, in order to recognize an employee as unworthy to hold a position in the company, it is necessary to conduct an extraordinary certification . and one that the employee will definitely not pass.

An employee has gone missing

Dismissal of an employee who does not appear at work for a long time is possible only if the reasons for the absence or attendance of the citizen at work are clarified.

It is required to indicate missed working days in the timesheet and make a request at the place of registration of the citizen. If there is no response, a similar letter is sent to the employee’s place of residence every 2 weeks. If, after 6 months, none of the requests have been received by the addressee, personnel officers draw up an act of non-receipt of letters by the citizen, and the manager writes a statement to the police about the missing person.

If the employee does not appear within a year, the senior management of the enterprise should draw up a statement declaring the person missing and submit the document to the judicial authority.

After the decision of the arbitration court, a dismissal order is issued for the enterprise. The labor report contains a mark indicating the end of service at the initiative of the employer on the basis of a court decision. All funds due and the work book of the missing employee are stored in the organization’s archives for the next 75 years.