Immoral behavior at work. Shitting in the work book

Non-children's note

Portal PhDRu has already published notes about layoffs for downsizing and for. And now the attention of blog readers is offered a note about dismissal under paragraph 8 of the first part of Article 81 of the Labor Code Russian Federation- dismissal (early termination) employment contract by administration) “for the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work”, regardless of where the immoral offense was committed: at the place of work or at home.

Nowadays, someone is fired due to a reduction in personnel, someone due to the expiration of the contract, and someone is dismissed of his own free will or "of one's own accord". However, especially for teachers, there is "wonderful" paragraph 8 of the first part of Art. 81 of the Labor Code of the Russian Federation with the following entry in the work book:

This provision of the Labor Code of the Russian Federation applies exclusively to teaching staff of universities and institutions for advanced training of postgraduate education, performing educational functions, which is determined by local regulations, job descriptions and employment contracts: teachers, tutors, curators. A detailed list of employees performing educational functions, as well as a list of immoral offenses (contradictory to public morality, immoral), does not exist. However, according to paragraph 46 of the decision of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “the courts should proceed from the fact that on this basis it is allowed to dismiss 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”. At the same time, it does not matter whether educational activities are carried out in relation to minors or persons who have reached the age of 18, i.e. the majority of students in higher education. This provision does not apply to educational support, technical and administrative personnel: laboratory assistants, methodologists, administrative and auxiliary employees of universities. The form of ownership of the university (GOU VPO or NOU VPO) does not matter in this case.

It is noteworthy that this "immoral" an act occurs not only when flocks of kissed students without panties come running with a written complaint to the administration with allusions to art. 133 of the Criminal Code of the Russian Federation (compulsion to act of a sexual nature, according to the principle "in the mouth for a reason"), but also when there is a banal fuck of a teacher with his student after spending time together (moreover "immorality" act is established on the basis of the fact whether the teacher performed an educational and pedagogical function or not in relation to the student at the time of coitus), as well as in the case of massacre after a banquet, which has become a publicly known case of the teacher being intoxicated or in a state of narcotic or other toxic intoxication in a public place or at work (which correlates with paragraph 1 of the fourth part of Article 56 of the Law "On Education" "appearing at work in a state of alcoholic, narcotic or toxic intoxication"), rude and obscene abuse of a teacher in a public place, both at the place of work and outside it. In addition, as "immoral act" the commission of certain administrative or criminal offenses in the university or outside the walls of the university, as well as acts that offend human dignity and public morality, for example, obscene harassment of women in public places, may be regarded. So, one associate professor was fired with this wording for traffic violation, they say, sets a bad example for students ...

Separately, it should be mentioned jointly drinking with students alcoholic beverages(involving minors in drunkenness, bringing them to a state of intoxication, see: paragraph 4 of the Decree of the Plenum of the Supreme Court of the USSR dated November 1, 1985 N 15 “On the practice of applying by courts of legislation aimed at strengthening the fight against drunkenness and alcoholism” // Bulletin of the Supreme Court of the USSR. 1986. N 1), cruelty to animals, misbehavior in everyday life (for example, a teacher beats his wife, tortures his children) or writing academic papers (abstracts, term papers, theses and dissertations) to order for students of other universities (which is not an official forgery, but a completely legal activity), which also leads to the application of paragraph 8 of the first part of Article 81 of the Labor Code of the Russian Federation.

In addition, early termination of the contract with the employee at the initiative of the administration as a type of disciplinary sanction is also applied when the teacher uses inhumane methods of education (physical or mental violence against students, insult or obscene language against students, blackmail), which corresponds to paragraph 2 of Art. 336 of the Labor Code of the Russian Federation “the use, including a single one, of methods of education associated with physical and (or) mental violence against the personality of a student, pupil”. This legislative norm is repeated verbatim in paragraph 2 of the fourth part of Article 56 of the Law of the Russian Federation "On Education". All these cases give grounds for the dismissal of a pedagogical worker. educational institution at the initiative of the administration of this institution before the expiration of the employment contract (contract).

The dismissal of a teacher under paragraph 8 of part 1 of article 81 of the Labor Code of the Russian Federation for an immoral act committed at the place of work and in connection with the performance of his labor duties is permissible provided that the procedure for applying disciplinary sanctions established by article 193 of the Labor Code of the Russian Federation is observed:

Article 193. The procedure for applying disciplinary sanctions

Before applying a disciplinary sanction, the employer must request a written explanation from the employee. If, after two working days, the specified explanation is not provided by the employee, then an appropriate act is drawn up.
The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction.
A 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 required to take into account the opinion of the representative body of employees.
Disciplinary action cannot be applied later six months from the date of commission of the misconduct, and based on the results of an audit, audit of financial and economic activities or an audit - later than two years from the date of its commission. The above time limits do not include the time of criminal proceedings.
For each disciplinary offense, only one disciplinary sanction may be applied.
The order (instruction) of the employer on the application of a disciplinary sanction is announced to the employee against signature within three working days from the date of its issuance, 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 an appropriate act is drawn up.
A disciplinary sanction may be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

Article 194. Removal of a disciplinary sanction

If within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered not to have a disciplinary sanction.
The employer, before the expiration of a year from the date of application of a disciplinary sanction, has the right to remove it from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees.

It is also impossible to reduce an employee during his period of disability or vacation (part 6 of article 81 of the Labor Code of the Russian Federation).

At the same time, as pointed out in the decision of March 17, 2004 No. 2 by the Plenum of the Supreme Court of the Russian Federation, dismissal under paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation may also follow in the case when 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, but no later than one year from the date of discovery of the misconduct by the employer (clause 46, 47 Resolutions of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 (as amended by the Resolutions of the Plenum of the Supreme Court of the Russian Federation of December 28, 2008 N 63, of September 28, 2010 N 22) “On the application by the courts of the Russian Federation Labor Code Russian Federation". Also, in accordance with part five of Article 81 of the Labor Code of the Russian Federation, “dismissal of an employee on the grounds provided for in clause 8 of part one of Article 81 of the Labor Code of the Russian Federation, in cases where guilty actions that give grounds for loss of confidence, or, accordingly, an immoral offense are committed by the employee outside the place of work or at the place of work, but not in connection with the performance by him work duties, not allowed later one year from the day the misconduct was discovered by the employer". However, considering that the termination of the employment contract under paragraph 8 of part one of Article 81 of the Labor Code of the Russian Federation can also be made in the case when an immoral offense is committed by an employee outside the place of work and not in connection with the performance of his labor duties, dismissal in this case is not a measure disciplinary sanction, the application of which is conditioned by the terms established by the Code, since, by virtue of the first part of Article 192 of the Code, disciplinary sanctions are applied only for non-performance or improper performance by the employee through his fault of the labor duties assigned to him. In order to dismiss an employee for an immoral offense not related to labor duties, the employer must have sufficient evidence, such as a copy of the police report, a court order imposing an administrative penalty, testimonies of witnesses, and publication in the media.

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. In practice, in most cases, either the guilty left "own will", or they were reprimanded. Indeed, according to the first part of Article 192 of the Labor Code of the Russian Federation “for committing a disciplinary offense, that is, non-performance or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions: 1) remark; 2) reprimand; 3) dismissal on appropriate grounds". Thus, the commission of the teacher "immoral act" does not necessarily entail dismissal, and the administration of the university may limit itself to a remark or reprimand. At the same time, according to paragraph 1 of Art. 336 of the Labor Code of the Russian Federation “repeated within one year gross violation of the charter of an educational institution” is the basis for the termination of the employment contract with a teacher and entails early termination of the contract with the teacher, that is, his dismissal. This provision is fully reproduced in paragraph 1 of the fourth part of Article 56 of the Law "On Education". However, in practice there are cases of demotion of offenders in office, which is recognized by the courts as unlawful, because in this case, as an official "movement" an employee can only be transferred to a position not related to the performance of an educational function.

According to the fourth part of Article 192 of the Labor Code of the Russian Federation, “when imposing a disciplinary sanction, the gravity of the offense committed and the circumstances under which it was committed must be taken into account”. With all the extended interpretation of the commission of immoral offenses by teachers, the fact of committing these acts must be proven on the basis of the testimony of witnesses, duly executed acts. At the same time, it is unacceptable to dismiss a teacher under this article of the Labor Code of the Russian Federation on the basis of a general subjective assessment of the behavior of a particular person, or on the basis of vague or insufficiently verified facts, rumors, etc. Very often, civil courts (claims by plaintiffs against universities, the employment contract with which was terminated due to their committing an immoral offense incompatible with the continuation of this work - paragraph 8 of the first part of Article 81 of the Labor Code of the Russian Federation) on reinstatement, recovery of average earnings for the time of forced absenteeism and compensation for non-pecuniary damage recognize the dismissal as illegal on the grounds that the fact of committing an immoral offense is not proven by conclusive evidence in accordance with Art. 67 Code of Civil Procedure of the Russian Federation: materials official investigation, testimonies of witnesses, etc. In judicial practice, there are often cases when teachers were reinstated, because the courts came to the conclusion that evidence of an immoral offense was fabricated or was incorrectly considered by the employer.

In short, this "immoral" such a handy article as "hooligan" in the Criminal Code of the Russian Federation - is suitable for many cases that are at odds with generally accepted moral norms and is largely evaluative in nature. One thing pleases - straightening the work book is not so expensive. We do not live in an owl!

In St. Petersburg, this rarely happens: usually in the VPO system everything ends with either a statement "on their own" or not being re-elected by competition... True, Internet professor Shuisky (http://shuisky-vf.narod.ru/) complained that he was fired from Gorny on a false charge of harassing female students (I cannot vouch for the authenticity of the facts). Although in fact, he was just criticizing the authorities on one of the forums of his typovuzik. So in practice, such an article is mainly threatened by objectionable university professors so that they quit "of one's own accord", or they fire the masters of vocational schools of secondary schools who beat students or staged a scuffle after joint "libations". So it goes…

Along with this they read:

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

Clarifications of the Supreme Court of the Russian Federation
on dismissal for committing an immoral offense

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 part one of Article 81 of the Labor Code of the Russian Federation), the courts should proceed from the fact that dismissal is allowed 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, 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 part one of Article 81 of the Labor Code of the Russian Federation) if subject to the procedure for applying disciplinary sanctions established by Article 193 of the Code.

If the guilty actions that give grounds for the loss of confidence, or, accordingly, an immoral offense are committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, then the employment contract may also be terminated with him under clause 7 or clause 8 part one of article 81 of the Labor Code of the Russian Federation, but no later than one year from the date of discovery of the misconduct by the employer (part five of article 81 of the Labor Code of the Russian Federation).

The above clarifications are contained in paragraphs. 46, 47 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation"

Judicial practice of dismissal
for committing an immoral act

1. 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, part 1, article 81 of the Labor Code of the Russian Federation), one should proceed from the fact that according to This basis allows the dismissal of only those employees who are engaged in educational activities

Zh. filed a lawsuit against JSC for reinstatement, recovery of the average wage for the time of forced absenteeism, compensation for moral damage, recognition of the dismissal order as illegal, indicating that he worked as a diesel locomotive driver, later as an instructor driver in the locomotive depot.

Reversing the district court's decision to dismiss the claims, the panel of judges indicated the following.

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

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

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

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

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

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

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

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

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

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

Who is under the gun

The Labor Code of the Russian Federation allows to dismiss for an immoral offense only persons performing educational functions, that is, those who are directly involved in educational activities, for example, school teachers, teachers of universities and secondary vocational schools, masters of industrial training, educators of children's institutions. By the way, governesses working for private individuals also carry out an educational function, determined by their employment contract and job description. But, say, directors of enterprises, heads of departments, foremen of production, district doctors and other educational functions are not charged with duties.

It is noteworthy that the Labor Code of the Russian Federation does not contain a specific list of professions and positions to which this ground for dismissal can be applied. Partially, they tried to resolve the problem at the Plenum of the Supreme Court of the Russian Federation, fixing in paragraph 46 of the resolution of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” an approximate list of employees for whom 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 a role model.

Despite the fact that the concept of “immoral offense” is used in law, there is no definition of it in any normative legal act.

This ground for dismissal also applies to the service personnel of educational institutions, whose functions include participation in the upbringing of children and direct contact with them (assistant educators, nannies, counselors). At the same time, it is impossible to dismiss school cleaners, supply managers, locksmiths, accountants for “immorality” - in a word, workers who, performing their labor duties not related to education, somehow influence the younger generation.

When dismissing an employee for committing an immoral offense, you must make sure that the educational function is spelled out in his employment contract or job description how main job function . For example, if a senior salesperson has educational work in the sales department as one of the additional labor functions, then dismissing him for immoral behavior would be a mistake.

On practice

CURED "UNOFFICIALLY"

According to the materials of the Yaroslavl Regional Court

The teacher of the children's art school V. was reprimanded for committing an immoral offense, expressed in publicly insulting colleagues at work with foul language.

In court, the plaintiff disputed the very fact of immoral behavior and obscene language against colleagues and drew attention to the fact that on October 3, 2002 there was an unofficial party at the school on the occasion of Teacher's Day - outside working hours, and according to the disciplinary sanction can only be applied for improper performance by the employee through his fault of the labor duties assigned to him.

By decision of the Frunzensky District Court of Yaroslavl of June 2, 2003, V.'s claim was dismissed. It was decided to recover from V. in favor of the municipal educational institution of additional education for children “Children's School of Arts. 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 held disciplinary liable for an offense that is not a violation of labor discipline in the sense defined, 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 colleagues at work 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.

In view of the foregoing, the Presidium of the Yaroslavl Regional Court issued a ruling on the legality of applying disciplinary measures to the plaintiff, which are correct, based on the law and case materials.

What is "immoral"?

Despite the fact that the concept of “immoral offense” is used in law, there is no definition of it in any normative legal act. In a broad sense, as we all understand, this is an act that violates the moral foundations of society. The modern textbook on labor law gives the following interpretation: “An immoral offense is a guilty action or inaction of a person that violates the basic moral norms of society and contradicts the content of the service and labor function and thereby discredits the service, educational, official powers of the corresponding circle of people.” one

On the one hand, the lack of specifics in the law - a list of immoral offenses or criteria for classifying acts as such - makes it difficult to correctly understand and apply the considered grounds for terminating an employment contract, making immorality an evaluative concept. On the other hand, it is most likely simply impossible to give such a closed list, just as it is impossible to equalize the moral foundations of various segments of the population. What is unforgivable for a teacher in some elite gymnasium may turn out to be a completely justified pedagogical reception in a special school for difficult teenagers.

Law should reflect the existing moral foundations, as well as be a social regulator of the behavior of members of society. But every society has its own ideas about morality. Important role Religion, customs, traditions play here. At the same time, culture is not static, opinions change; often what seemed monstrous just a few years ago is now perceived quite casually. I'll give you an example. In clause 4 of the earlier ruling of the Plenum of the Supreme Court of the USSR dated 01.11.1985 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 assess the worker's act from the standpoint of morality? Whose level of morality should be the measure? The answer is quite obvious - the employer. It is he who, relying on his sense of justice, world outlook and his own moral level, will evaluate the actions of the employee. And most importantly, he will decide whether this citizen, after his misconduct, can continue to perform the labor functions assigned to him.

Practice shows that at present, such actions of an employee as drinking alcohol are most often recognized as immoral misconduct. together with pupils, obscene expressions and gestures to the students , restoration of discipline in the classroom physical methods impact and others. In the case of the use, including once, of methods of education associated with physical and (or) mental violence against the personality of the pupil, the employee may also be fired for. It is immoral to humiliate and beat students! The Law of the Russian Federation of July 10, 1992 No. 3266-1 “On Education” (clause 6, article 15) states that discipline in an educational institution is maintained on the basis of respect for the human dignity of students, pupils, and teachers. The use of methods of physical and mental violence against students and pupils is not allowed.

The place doesn't matter

Dismissal is real even if the immoral offense was committed not at the place of work and not in connection with the performance of labor duties. For example, the appearance in a theater (shop, bank) of a drunken, swearing teacher, the use of violent methods of education by him in relation to his own children, etc. can be regarded as a sufficient reason for terminating the contract.

The difference is only in the limitation of the terms of imposition of punishment. If the condemned act is committed at the place of work and in connection with the performance of work duties , then the violator of moral principles may be dismissed, subject to the procedure for applying disciplinary sanctions established. That is, no later than one month from the date detection misconduct, not counting the time of illness of the employee, as well as his stay on vacation. Moreover, in this case, dismissal cannot be applied later than six months from the date of the misconduct.

If an immoral act is committed outside the place of work or at the place of work, but not in connection with the performance of his job duties , then the employer has the right to terminate the employment contract 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. Note: dismissal of an employee is permissible only if the immoral act is incompatible with the continuation of this work . "Incompatibility" means the impossibility of performing educational functions as a result of these unseemly acts. (A misconduct, for example, completely discredited the employee as a teacher. Or the employer got the impression that the teacher would again commit similar actions, and this would adversely affect the students.)

An employment contract with employees performing an educational function can be terminated if they commit an immoral offense not only at work, but also at home.

The fact of committing an immoral offense must be proven by the employer. Dismissal based on a general assessment of behavior, as well as on the basis of non-specific or insufficiently verified facts, rumors is unacceptable.

Testimony of witnesses, duly executed acts, etc. are accepted as evidence. 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 upon a complaint received 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

1 Gusov K.N., Tolkunova V.N. Labor law of Russia: textbook. - M.: Welby, Prospekt Publishing House, 2004.

Immoral offense committed by a teacher

The performance of individual work requires the employee not only to adhere to duties, but also to maintain a certain type of behavior both during work and at home. This concerns teachers who perform educational functions in relation to other people.

Given that teaching staff should be role models, even a minimal deviation from the norm leaves an imprint on the entire institution where they work. Therefore, according to the norms of labor law, the employer may terminate the employment relationship with the employee who has committed an immoral offense ahead of schedule.

A clear legislative definition of what constitutes an immoral offense has not been introduced. At the same time, all actions that do not fit into generally accepted standards of behavior are considered immoral. modern man and may become the basis for bringing a citizen to criminal, administrative, or condemnation by civil society.

Usually immoral acts are considered:

Being in public places in a state of severe alcohol or drug intoxication.
Hooligan or criminal acts recorded by law enforcement agencies.
Behavior (at work or at home) that goes beyond the bounds of decency (excessive sexual freedom in actions and clothes, perverted sexual behavior, sexual harassment of one's subordinates, obscene language in communication, unwillingness to adhere to elementary rules of hygiene, and others).
Participation in fights.
Facts of physical or psychological violence against students (blows, beatings, coercion to various degrading acts that cause mental suffering to a young person).
Alcoholism, drug addiction.

The Labor Code provides for a provision allowing employers to terminate employment relations with teaching staff who have committed an immoral act. It is important to indicate that such an offense must be incompatible with the further work of a citizen.

You need to understand that an act can be considered immoral both in society as a whole and directly in a particular team. Before applying the last norm, the employer must take into account that the framework of morality in an educational institution must initially be established and brought to all educators under a personal signature.

They should not deviate from the generally accepted patterns of behavior in society. If these criteria are not met, the employee will be able through the court to be reinstated in his previous position and demand compensation for absenteeism that has arisen through no fault of the employee, as well as compensation for non-pecuniary damage.

Remember, the article on termination of employment due to an immoral act can only be applied to citizens who perform educational functions and only if such an offense is incompatible with the further activities of a particular employee in this position.

Who can be fired

Who can be fired for immoral misconduct

If you carefully read the laws, as well as judicial practice and the explanations issued on its basis, then only teaching staff. But even here, not all categories of employees perform an educational function.

Therefore, before applying clause 8 of the first part of Article 81 of the Labor Code of the Russian Federation, you should carefully read the employee's labor duties, as well as the actions that he performed.

Kindergarten teachers.
School teachers, teachers in contact with students.
Masters performing the functions of industrial training.
Sports coaches, speech therapists, sports camp counselors.

It must be understood that the determining factor in classifying a position as a pedagogical one is not its direct name, but specifically the work performed under the terms of the job description. For example, if a teacher who performs administrative and housekeeping functions and does not contact students during non-working hours is caught drunk, he cannot be fired for immoral behavior.

The process of dismissing an employee for immoral behavior should be accompanied by a comprehensive study of not only real (and documented) duties, but also the severity of the misconduct committed. Especially if all this is discovered during non-working hours.

Do not forget that before applying the dismissal rate, the employer is obliged, if possible, to use other means of influence (warning, reduction of bonus payments, reprimand, demotion, transfer to another job). An exception is if the offense committed is incompatible with the possibility of continuing work in a particular educational institution.

Remember, even if a citizen is a pedagogical employee and is caught for immoral behavior, in order to apply the appropriate dismissal article to him as a punishment, the employer must prove that he performs an educational function in relation to other people, and that the misconduct committed is incompatible with further work.

Features and procedure for dismissal

Features of dismissal for immoral behavior

Perhaps the main feature of the legislative norm providing for dismissal for immoral behavior is the lack of a clear linkage of such an offense to the place and time of its commission. It can be at work or at home. Often dismissed for immoral offenses committed in the past, if they were initially hidden from the administration and opened after some time.

In order to apply the rate of dismissal for immoral misconduct, the employer must collect an evidence base confirming that such misconduct actually took place. The list of evidence includes:

statements from parents, memos from work colleagues, explanatory notes from witnesses of incidents;
protocols and resolutions on administrative responsibility, letters from law enforcement and preventive agencies;
copies of court decisions or rulings.

Remember, when dismissing employees, be guided by speculation, rumors, unverified information from global network(today you can easily mount almost any photo or video) is not worth it. In further proceedings in court, the employee will be reinstated, but the reputation of the administration may be seriously affected.

If such a misconduct is fixed in time, the employer is obliged to comprehensively understand what really happened, and how it all affects the employee's ability to perform his pedagogical functions. It must be taken into account that dismissal from work is an extreme measure, the application of which is possible only if it is proved that the action taken is incompatible with the citizen’s further work, or it has happened systematically earlier, for which disciplinary measures have already been applied to the employee.

Analysis of immoral behavior must be carried out in the presence of the employee who committed it. A mandatory document that the employer must request is a written explanation of the employee himself.

If the delinquent employee refuses to write an explanation, it is necessary to draw up an act that fixes all this. It is desirable in such an act to briefly state the essence of the conversation with the offender. At least 3 people sign the act. It is desirable that they are not interested in the outcome of the proceedings.

Dismissal procedure

The procedure for dismissal for immoral behavior

To perform the procedure for dismissing an employee who has committed an immoral offense legally, it is necessary to complete the following steps.

We fix the fact of immoral misconduct. Considering that dismissal for this reason can be applied for an act both at work and at home, a single form of confirmation has not been established. Usually this is an official document of the competent authority (police, court, prosecutor's office), and maybe from conscious citizens (for example, flatmates).

If the case is recorded at work, it must be documented in writing. This is done in the form of a note, an act signed by several employees, statements of parents.

Explanation from the offending employee. Considering that often people can engage in the dissemination of frankly false information due to personal hostility towards each other, the employer is obliged to consider the arguments of the other party.

And this is done exclusively in writing(so that there is documentary evidence). Further actions of the administration often depend on the information received from the employee who committed the misconduct.

An official investigation is underway. In order to ascertain the veracity of the evidence, the employer is obliged to conduct an internal verification of the facts presented by the parties. Usually a special commission is created for this.

It is created by the order of the employer, endowed with certain powers, the terms and procedure for its work are established. At the end of the work of the commission, an act is drawn up, which sets out the facts obtained in the course of the investigation, and also proposes measures of influence against the violator. The violator gets acquainted with the act of investigation under a personal signature.

A decision is made on punishment. Based on the conclusions of the commission, as well as the available documents, the employer must decide to hold the employee liable. This may be a disciplinary sanction, or dismissal from work. Issued by order of the enterprise. An appropriate entry is made in the work book. On the day of dismissal, a full settlement is performed with the employee.

It is important to note that depending on the documents that have been submitted to the employer for consideration, the stages may be reduced or increased. For example, if it is a judicial decision that has gained legal force, it in itself is evidence of a committed misconduct and does not require further re-checking.

At the same time, if you just received a statement from a conscious neighbor, it is advisable to issue an additional request to the police at the employee’s place of residence in order to conduct an additional official check. And only after receiving a positive response from law enforcement agencies, you can proceed to the next stage.

Remember, quite often negligent employees are reinstated through the courts due to a violation of the procedure for filing an immoral offense. Therefore, so that the formalities do not interfere with getting rid of unworthy educators, always follow the procedure and the timing of its registration.

If an employee has committed a violation of labor discipline, but it is problematic to prove the immorality of such an offense, it is advisable to bring him to disciplinary responsibility on a general basis. After all, for a systematic violation of labor discipline in the future, you can also be fired.

How is the appeal in court

Wrongful dismissal appeal

Often, an employee dismissed “under the article” does not agree with such a decision of the employer and goes to court to cancel the dismissal order and reinstate him in his previous position. It is important to remember that the obligation to prove one's case does not rest with the employer, not the employee.

Initially, the court is on the side of the citizen. And the slightest deviation in the dismissal procedure will be the reason to make a decision in favor of the dismissed employee.

In the case of dismissal in court, special attention is paid to the following points:

Was the dismissed employee directly related to educational work, what documents recorded this, how was it communicated to the employee.
What was the fact of the immoral offense committed by the employee, how did it affect him further work why it is impossible for such an employee to continue working in this institution.
How the severity of the misconduct was determined, why the decision was made to dismiss the employee, whether other disciplinary measures were previously applied to him.
Whether the procedure and deadlines for imposing penalties were followed, whether the employer considered the misconduct from all sides, how he approached the study of the evidence base that served as the basis for the decision to dismiss.
Whether the fact that the employee was on sick leave or on vacation on the date of his dismissal was taken into account.
Was the employee timely familiarized with the memos regarding the immoral misconduct, acts, minutes of official proceedings and consideration, and the dismissal order.
Whether the calculation was made in a timely manner upon dismissal, whether the entry made in the work book corresponds to the current labor legislation.

Therefore, in order to prove the legitimacy of the decision made, the employer will need to provide the court with the following documents (certified copies or extracts):

an order on the employment of an employee;
an order confirming the fact of dismissal;
a memorandum, act, statement, written request of an authorized person confirming the fact of immoral misconduct;
personal written explanation of the employee;
documents confirming the conduct of an internal audit (trial). As a rule, this is an act of official verification, or a protocol of official consideration of an immoral offense;
job description of the employee with his personal signature;
other documents on the basis of which decisions were made.

Remember, the responsibility to prove your case lies entirely with the employer. Therefore, you should initially check the availability of all supporting documents, the signatures of the culprit, as well as their compliance with the procedure established by law.

For more information about disciplinary sanctions in the Labor Code, see this video:

Question form, write your

Judicial practice of dismissal for committing an immoral offense

Reversing the district court's decision to dismiss the claims, the panel of judges indicated the following.

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

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

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

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

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

Dismissal for committing an immoral act

Grounds for dismissal for committing an immoral offense

For committing an immoral offense, only employees performing educational functions (teachers, lecturers, mentors, educators, nannies and other persons involved in educational activities) can be dismissed. Employees who perform only technical and auxiliary duties (watchman, driver, supply manager, accountant) cannot be fired on this basis (paragraph 46 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

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

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

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

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

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

Situation from practice

What measures should the school administration take to discipline a teacher for using obscene language?

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

In accordance with paragraph 47 of the Decree of the Plenum of the Armed Forces of the Russian Federation, if an immoral offense is committed by an employee at the place of work and in connection with the performance of his labor duties, such an employee may be dismissed from work on the grounds provided for in paragraph 8 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, subject to the procedure for applying disciplinary sanctions established by Art. 193 of the Labor Code of the Russian Federation. It should also be borne in mind that, according to paragraph 2 of Art. 55 of the Law of the Russian Federation of July 10, 1992 N 3266-1 “On Education”, a disciplinary investigation of violations by a teacher of an educational institution of the norms of professional conduct and (or) the charter of this institution can be carried out only upon a complaint received against him, filed in writing. A copy of the complaint must be given to the teacher. After receiving a complaint from the parents, the principal should set up a commission to investigate the incident. The commission should demand explanations from the teacher, interview students whose parents have written complaints. If the fact of using obscene language is confirmed, the employer will have the right to dismiss the teacher.

Registration of the fact of committing an immoral offense

There is no unified document to be drawn up upon discovery of the fact of committing an immoral offense. In practice, this fact is recorded by the memorandum of the person who discovered it. If there are several witnesses, then an act should be drawn up. The memorandum or act must reflect:

- surname, name, patronymic of the employee who discovered the fact of committing an offense;

- the circumstances under which the offense was committed;

- Date and time of completion.

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

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

Some immoral offenses may bear signs of a criminal offense or an administrative offense, the guilt of the employee in committing which is determined by the court.

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

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

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

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

The following tasks are set before the commission to investigate the fact of committing an immoral offense:

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

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

- identifying the causes of the misconduct;

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

The commission has the right to demand explanations from employees suspected of committing a misconduct, and in case of refusal to provide explanations, draw up an appropriate act. If such explanations are obtained during the investigation, then it is no longer necessary to demand them again when imposing a penalty.

With the order on the creation of the commission, it is necessary to familiarize all the employees included in it against signature. It is not necessary to familiarize the employee under investigation with him, since the legislation does not contain such a requirement.

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

The results of the commission's work are reflected in the relevant decision (act). A unified form of this document has not been approved, so the employer can develop it independently. The deed must show:

- names and positions of all members of the commission;

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

— the basis and timing of the investigation;

— list of activities carried out (briefly);

- time, place and circumstances of the offense;

- reasons and conditions for committing a misdemeanor;

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

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

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

If an employee commits a crime or an administrative offense, the sentence or decision of the court, as well as another body on the application of an administrative penalty, is evidence of an immoral offense and the results of their study by the commission are reflected in the decision.

In addition, the act may contain other information.

The decision is signed by all members of the commission. It is necessary to acquaint the employee guilty of committing an immoral offense with it, against signature. If he refuses or evades familiarization, an appropriate act is drawn up.

All collected evidence of an immoral offense (memorandums, written testimonies, acts, complaints of victims and other documents, including photographs, video materials, printed materials (if the case has become public)) shall be attached to the decision of the commission.

Obtaining explanations from an employee who has committed an immoral offense

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

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

Registration of an order on the application of a disciplinary sanction in the form of dismissal and an order (instruction) on the termination (termination) of an employment contract with an employee for committing an immoral offense

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

How to draw up an order to apply a penalty to an employee? For more details, see paragraph 1 of this material.

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

- surname, name, patronymic of the employee;

- the structural unit where the employee works;

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

- the circumstances of the misconduct, the degree of its severity and the guilt of the employee.

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

After issuing an order to apply a penalty in the form of dismissal and familiarizing the employee with it, it is necessary to draw up an order (instruction) to terminate the employment contract (unified form N T-8, approved by Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 N 1). It must indicate that the employment relationship is terminated in accordance with paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation in connection with the commission of an immoral offense. In the column "Ground" should reflect the details of the order to apply a disciplinary sanction.

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

Terms of dismissal of an employee for committing an immoral offense

If an immoral misconduct is committed at work, then the employee can be dismissed no later than one month from the moment this fact was discovered, but no later than six months from the date the misconduct was committed. The day of discovery is the day when the immoral act became known to the immediate supervisor of the employee.

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

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

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

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

An entry is made in the personal card about dismissal for committing an immoral offense on the grounds of paragraph 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation. Upon receipt of a work book, an employee must sign a personal card (clause 41 of the Decree of the Government of the Russian Federation of 04/16/2003 N 225 "On work books").

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

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

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

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

Dismissal from civil service for immoral behavior

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

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

Then it will be possible to simply recover in the 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 of reinstatement at work 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.

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)

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, overuse alcohol, rudeness towards others, misbehavior 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 of 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.

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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, since 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 away from 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 several times with a ruler. 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 convicted of cruelty to his own children or in a fight with a neighbor), then the dismissal will not be considered a disciplinary sanction (part two of article 192 of the Labor Code of the Russian Federation). In this case, the termination of the employment contract is 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).

In order to dismiss an employee for an immoral offense not related to labor duties, the employer must have sufficient evidence, for example, a copy of the police report, a court order imposing an administrative penalty, 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 offense is a very complex problem that requires a comprehensive assessment of the circumstances of the incident, the identity of the perpetrator and other factors. Therefore, it is advisable to 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.

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

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

Next in section:

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

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

Rules for termination of an employment contract on the basis of "immoral misconduct"

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

Dismissal on the basis of "immoral misconduct" is also possible in a situation where an immoral misconduct is committed at the place of work in connection with the performance of work duties and outside the place of work or at the place of work, but not in connection with the performance of 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.

For example, a teacher was seen in assault - he hit the students on the hands with a ruler several times. These actions, of course, can be regarded as an immoral offense incompatible with the continuation of work (clause 8, part 1, 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 sub. 2 p. 4 art. 56 of the Law of July 10, 1992 No. 3266-1 “On Education” (hereinafter referred to as the Law on Education) , pupil".

1 The document becomes invalid on September 1, 2013 due to the adoption of Federal Law No. 273-FZ of December 29, 2012 “On Education in the Russian Federation”.

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).

Employees performing educational functions can be divided into two categories.

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

Secondly, other 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, the heads of internal affairs bodies and their deputies for educational work - order of the Ministry of Internal Affairs of Russia dated 01.02.2007 No. 120 “On the comprehensive reform of the system of educational work in internal affairs bodies ").

Immoral behavior at work. Shitting in the work book

Clarifications of the Supreme Court of the Russian Federation on dismissal for committing an immoral offense

Judicial practice of dismissal for committing an immoral act

Who can be fired

Features and procedure for dismissal

Dismissal procedure

How is the appeal in court

Judicial practice of dismissal for committing an immoral offense

Dismissal for committing an immoral act

Grounds for dismissal for committing an immoral offense

Registration of the fact of committing an immoral offense

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

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

Obtaining explanations from an employee who has committed an immoral offense

Registration of an order on the application of a disciplinary sanction in the form of dismissal and an order (instruction) on the termination (termination) of an employment contract with an employee for committing an immoral offense

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

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

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

Dismissal from civil service for immoral behavior

Dismissal for an immoral act

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)

Crime against morality

Who performs educational functions?

Two sides of the same offense

Question on topic

Dismissal procedure

Next in section:

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

Clarifications of the Supreme Court of the Russian Federation
on dismissal for committing an immoral offense

Judicial practice of dismissal
for committing an immoral act