Suspension of an employee from work. Reasons, procedure for suspension from work

Suspension from work is the non-admission of an employee to the performance of his immediate labor duties for any reason. Such a measure, according to Art. 76 of the Labor Code of the Russian Federation, does not entail a change or termination of labor relations.
An employer can only remove an employee on the basis of an order.

Suspension order

An employee is not allowed to perform his functions only on the basis of an order issued by the employer. The order is drawn up on the basis of documents that confirm that the employee cannot immediately start work.
Such documents can:

• medical report on the state of alcoholic or other intoxicating intoxication;
• failed exams in occupational health and safety courses;
• lack of a medical opinion on the state of health;
• the presence of a medical certificate of poor health;
• other.

The order is drawn up with a serial number on the letterhead of the employer. It must include the following information:

• full name and position of the employee. If necessary, you can specify the structural unit;
• the period for which the employee is suspended from the performance of his immediate duties;
• methods of payment for the period when the employee is suspended. The employer has the right not to pay these days at all, but can pay as simple;
• Full name, position and structural unit where the person who is entrusted with the controlling function for the execution of the order works;
• grounds on which the employee was suspended from work. You must specify the date and number of the document;
• date and signature of the employer.

The employee must read the order and sign it. This is done in case the employee decides to appeal the employer's decision in court.
If the employee refuses to sign the order, the employer must draw up an act to that effect.

Grounds for removing an employee from work

In Art. 76 of the Labor Code of the Russian Federation lists the grounds for removing an employee from work. These grounds include:

• the appearance of an employee at the workplace in a state of alcoholic or any other intoxicating intoxication.
  This condition must be recorded by a doctor. Only he determines one of the 5 established by the Methodological Guidelines for Medical Examination, the patient's conditions. The degree of punishment of the offending employee depends on this.
• the employee has not been trained and tested knowledge in the field of labor protection and safety.
  The obligation to undergo training is directly established in Art. 214 of the Labor Code of the Russian Federation. The employer is obliged to provide employees with knowledge on labor protection. Such a duty is assigned to him by Art. 212 of the Labor Code of the Russian Federation. Verification of such knowledge is carried out by a special commission, which is created by the employer. If the employee has not passed such a check, then he can re-appear for it only after a month.
• the employee has not passed a mandatory medical examination, or a mandatory psychiatric examination. Such examinations are mandatory, that is, when the employee is allowed to perform work in a healthy state (for example, educators) and voluntary, when the employer takes care of his employees in this way.
  If the employee has not passed the mandatory examination, then he is suspended from work. If he did not pass the voluntary, then the employer does not have the right to remove him.
• identification by physicians of contraindications for the performance of a particular work, which is provided for by the employment contract.
  The basis for removal is a medical report, which is issued in accordance with the procedure established by law. The employee is suspended from work for the duration of additional examinations.
  The employer, according to Art. 73 of the Labor Code of the Russian Federation, can transfer such an employee to another job that corresponds to his health. If the employee does not agree to the transfer, then the employer can even fire him.
• the employee's special right has expired. In this case, the employee may be suspended from work for up to 2 months.
  Special law includes special knowledge, skills and abilities, which are confirmed by a special document. For example, a driver's license. If a person performs the duties of a driver under an employment contract and his driver's license has expired, then he can be suspended from work for 2 months to replace them.
• requirement of law enforcement agencies and other officials.
  For example, at the request of the federal labor inspectorate. This happens if the employee does not comply with the instructions of the inspector. Given to him during the last check. In this case, the employer will also be punished.
• other grounds.
  The grounds presented in Art. 76 of the Labor Code of the Russian Federation is not an exhaustive list. Suspension from work is also possible for other reasons, which must be specified in federal law or other laws.

As of: 03/17/2010
Magazine: Directory of personnel officer
Year: 2010
Author: Avtushko Irina Anatolyevna
Topic: Documents of the personnel service, Responsibility of the employer, Remuneration
Category: HR practice
What to do if one employee left for a shift in a state of intoxication, another did not find time to undergo a medical examination, and all the deadlines had already expired, the third skipped a safety briefing at one time? Of course, remove from work! And no objections from the master or foreman: “Yes, you are crazy! There is no one to work for us” - they cannot go into the calculation. After all, the director will be responsible for the consequences. And he, in turn, will ask you why measures were not taken in time.

Suspension from work is a temporary exclusion of an employee from performing work duties by order of the employer. Suspension from work does not entail any change or termination of the employment contract.

Article 76 of the Labor Code of the Russian Federation defines a list of cases when the employer is obliged not to allow the employee to work, and if he has already started work, then remove him from it. This list is not exhaustive. The circumstances under which an employer is obliged to remove an employee from work may also be provided for in other federal laws and other regulatory legal acts of the Russian Federation.

For example, according to clause 22 of the Regulations on the discipline of railway workers of the Russian Federation, approved. Decree of the Government of the Russian Federation of 25.08.1992 No. 621, an employee who has committed an offense that threatens the safety of train traffic and shunting work, life and health of people, is suspended from work on this working day (shift) by an official who performs administrative or control and inspection functions at this plot. The appropriate supervisor must be notified immediately. The notice must detail the reasons and circumstances that caused the suspension from work.

Please note: in cases provided for by law, suspension from work is not a right, but an obligation of the employer. Failure to comply with this obligation may result in negative consequences.

For example, let's say there was an accident on the premises. From the act of investigation, it was seen that the cause of the work injury was inadequate actions and negligence of the employee, who was in a state of intoxication. Since the evidence of the removal of the employee from work, as required by Art. 76 of the Labor Code of the Russian Federation, the employer did not submit, the court ordered the enterprise to reimburse the medical institution for the cost of medical services provided to the employee in connection with the injury (Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 24, 2006 No. A82-5768 / 2005-11).

Quoting the Document

At the same time, it should be remembered that the removal of an employee from work in cases not provided for by the legislation of the Russian Federation, or without sufficient grounds, is illegal and entails liability in accordance with the current legislation of the Russian Federation.

In particular, illegal suspension from work entails the material liability of the employer to the employee (Article 234 of the Labor Code of the Russian Federation): the employer is obliged to reimburse him for unearned earnings for the entire period of illegal suspension from work.

For illegal removal from work, the guilty person may also be brought to administrative responsibility (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Administrative liability for illegal suspension from work

TIME FRAME

Suspension from work of an employee is carried out for the entire period of time until the elimination of the circumstances that served as the basis for suspension from work. It is desirable to designate such a period by a specific date.

For example, from March 1 to April 23, an employee was suspended from work in accordance with a medical report due to the identification of contraindications for performing work.

However, it is not always possible to limit the time of suspension from work to a specific date. In such situations, the period of suspension from work may be due to the commission of certain actions.

For example, K. was suspended from work due to the fact that he did not pass the mandatory medical examination. The period of his suspension from work will continue until he passes such a medical examination.

In some cases, the specified period cannot be determined at the time the employee is suspended from work. In such a situation, the employee should simply be suspended from work without any indication of a limitation on the period of suspension from work. For example, in the case of suspension from work of an employee who appeared at work in a state of intoxication.

TO PAY OR NOT TO PAY?

As a general rule, during the period of suspension from work, wages are not accrued to the employee, with the exception of cases provided for by the Labor Code of the Russian Federation or other federal laws.

Expert opinion

A. K. Gavrilina, cand. legal Sciences, Associate Professor, Faculty of Law, State University for Land Management Dismiss but pay In part 3 of Art. 76 of the Labor Code of the Russian Federation establishes: in cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire period of suspension from work as for simple. The legislator differentiates payment for downtime depending on the presence or absence of fault of the parties to the employment contract

employer and employee (Article 157 of the Labor Code of the Russian Federation) It should be recognized that the norm enshrined in Part 3 of Art. 76 of the Labor Code of the Russian Federation, to a certain extent, is incomplete, since it only speaks of the absence of the employee's fault. In our opinion, the legislator's reference to the application of the provisions on payment for downtime, enshrined in Art. 157 of the Labor Code of the Russian Federation, gives reason to use the rules of this article and further differentiate the payment for the time of suspension from work, depending on the presence or absence of the employer's fault. A different approach, when when paying for the time of suspension from work, only one situation is taken into account - the absence of fault of both the employee and the employer - seems to be a limited interpretation of the provisions of Part 3 of Art. 76 of the Labor Code of the Russian Federation. The fact is that the situations referred to in this rule may arise both through the fault of the employer, and in the absence of his fault. So, if the employee is suspended from work due to the circumstances under consideration through his own fault (for example, he refused to undergo a mandatory periodic medical examination or did not appear without good reason for a mandatory preliminary medical examination),

The time off from work is not payable. If in such a situation the circumstances that became the basis for suspension from work arose not through the fault of the employee, but solely through the fault of the employer (for example, the employer did not provide timely training, testing the knowledge and skills of the employee), then the time of suspension from work is paid on the basis of Part 1 Art. 157 of the Labor Code of the Russian Federation in the amount of at least two thirds of the average wage of an employee. At the same time, there may be cases when the reasons for the occurrence of the circumstances that served as the basis for suspension from work do not depend on either the employee or the employer (for example, due to temporary disability, the employee was unable to undergo a mandatory periodic medical examination on time). It seems that in such cases, the time of suspension from work should be paid on the basis of Part 2 of Art. 157 of the Labor Code of the Russian Federation in the amount of at least two-thirds of the tariff rate, salary (official salary), calculated in proportion to the time of suspension from work.

So, in cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire time of suspension from work as for simple ( part 3 article 76 of the Labor Code of the Russian Federation).

According to parts 1 and 2 of Art. 157 of the Labor Code of the Russian Federation, downtime due to the fault of the employer is paid in the amount of at least two thirds of the average salary of the employee, and for reasons beyond the control of the employer and employee - in the amount of at least two thirds of the tariff rate, salary (official salary), calculated in proportion to the time just me.

On March 23, the employer sent T. for a mandatory periodic medical examination. But it turned out that the medical institution had lost his card, and the employee could not pass the medical examination. By order of the employer, T. was suspended from work. The card was found only in early April, and the employee underwent a medical examination on April 7. How should the period of suspension from work be paid?

Since the suspension was for reasons beyond the control of the employer and the employee, the employer must pay the period of suspension from work - from March 24 to April 6 - based on an amount of two-thirds of the employee's salary.

If the employee were unable to pass the medical examination due to the fact that the employer delayed payment to the medical institution, then two-thirds of the average salary would be saved for the period of suspension from work. In this case, it is the employer's fault that the employee was suspended from work.

It should be noted that sometimes the material support of an employee suspended from work is carried out at the expense of other sources, and not at the expense of the employer.

For example, in accordance with Part 6 of Art. 114 and Art. 131 of the Code of Criminal Procedure of the Russian Federation, a suspect or accused temporarily removed from office is entitled to a monthly state allowance in the amount of five minimum wages, which is paid at the expense of the federal budget or the funds of participants in criminal proceedings.

HOW TO APPLY

The decision of the employer to remove the employee from work is issued by order (Annex 1) with which the employee must be familiarized against signature. Since the unified form of such an order has not been approved, the employer must draw up this document on his own.

The order must state the circumstances that served as the basis for the removal of the employee, and list the documents confirming these grounds (memorandum, act, medical report, order of the authorized body or official, etc.). In addition to the specified information, it is advisable to indicate in the order of suspension from work whether the employee is retained for the period of suspension of wages.

Driver S. showed up at work in the afternoon drunk. They did not fire him: it turned out that on that day his son was born. The management considered the reason for the misconduct to be valid, but he was removed from work. The corresponding order was issued. Should such an order be reflected in other documents? Is a record of suspension from work entered in the work book?

According to part 4 of Art. 66 of the Labor Code of the Russian Federation, information about the employee, the work performed by him, transfers to another permanent job and dismissal, as well as the grounds for terminating the employment contract and information about awards for success in work, are entered in the work book. Thus, a record of suspension from work in the work book of the employee is not made.

In the time sheet, the period of suspension from work is marked with a conditional code, depending on the payment for this period (see table).

Note!

In case of dismissal of an employee from work, no additional agreement to the employment contract is concluded. Suspension from work - a unilateral act of the employer

It should be noted that Art. 76 of the Labor Code of the Russian Federation does not provide for an obligation for the employer to demand, and for the employee to provide explanations of the reasons for the occurrence of circumstances that were the basis for dismissal from work. However, in some cases, the employer needs to find out why the circumstances that gave rise to such a suspension arose.

For example, in the case of suspension from work of an employee who has not passed a mandatory periodic medical examination, the issue of remuneration is decided depending on whether the employee is guilty or innocent in this situation (part 3 of article 76 of the Labor Code of the Russian Federation).

The employer can establish the guilt of the employee, including by asking the employee for an explanation. In it, the employee can express his opinion about the current situation, which seems to be a kind of guarantee of respect for his rights. An exception is cases when the reason is obvious, for example, the medical institution refused to examine the employee because the employer did not transfer the money on time.

Code indicating the period of suspension from work in the time sheet

Keep in mind: a written explanation of an employee in the event of a dispute can be considered as evidence, so it is advisable to demand a written explanation from the employee.

Expert opinion

A. F. Nurtdinova, Doctor of Law Sciences, Head of the Department of the Constitutional Court of the Russian Federation Suspension and simple: the differences are fundamental In accordance with Part 3 of Art. 722 of the Labor Code of the Russian Federation, downtime is understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. Downtime is an event in production and working life that entails certain legal consequences. Downtime, in the presence of the conditions specified in the Labor Code of the Russian Federation, may serve as the basis for the temporary transfer of an employee to another job. As a rule, during the period of downtime, the employee must be at the workplace, since the suspension of work can be short-term (as a result of equipment breakdown, lack of raw materials and materials, power outages, etc.) and end unexpectedly (they will repair the machine, provide raw materials, turn on electricity, etc.).

Thus, the employee can resume the performance of his labor duties at any time during the working day (shift). In case of long downtime, the employer may allow employees to stay at home. Depending on the absence (presence) of the employee's fault, downtime is paid or not paid. Depending on the presence (absence) of the employer's fault, downtime is paid in a larger or smaller amount (Article 157 of the Labor Code of the Russian Federation). Suspension from work is an independent legal concept, the essence of which lies in the active action of the employer: he removes the employee from work in cases established by law (Article 76 of the Labor Code of the Russian Federation). Suspension from work differs from downtime in essence (downtime is an objectively determined event, and suspension from work is an action (legal act) of the employer) in terms of the right regime (regulation) and legal consequences. Suspension from work is not a basis for changing or terminating an employment contract. The circumstances that serve as grounds for suspension from work are related to the personality of the employee and, as a rule, are of a long-term nature. There is no need for the employee to be present at the workplace during the period of suspension, since he cannot be allowed to work.

According to part 3 of Art. 76 of the Labor Code of the Russian Federation during the period of suspension from work, as a rule, wages are not accrued to the employee. Only in cases of suspension from work of an employee who has not passed training and testing of knowledge and skills in the field of labor protection or a mandatory preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire time of suspension from work as for downtime. It should be noted that sometimes personnel officers misunderstand Part 3 of Art. 76 of the Labor Code of the Russian Federation, since it mentions a simple one. They conclude that suspension from work (during this period the employee does not perform his job duties) is downtime. Such a conclusion does not follow from the provisions of the Labor Code of the Russian Federation. Firstly, as can be seen from the above norm, we are talking only about payment, and not about a set of legal consequences. Secondly, the legislator does not equate suspension from work with downtime, it only determines the amount of the guarantee payment to an employee who, through no fault of his own, could not pass a knowledge test or a medical examination on time. Note that the rule says: as for a simple i.e. downtime payment rules apply in this case. If the intentions of the legislator were something else, he would choose a different wording, for example, he would indicate that the suspension from work in this case is downtime or is equated with downtime.

If the employee refuses to provide the specified explanations, it is desirable to draw up an appropriate act.

Registration of an employee's admission to work depends on the content of the order to remove him from work. If the suspension time is specified in the order by a specific date, then when it occurs, the order is automatically terminated. If the period of suspension is due to the commission of a certain action (for example, the employee is suspended until the mandatory periodic medical examination), then in this case it seems necessary to issue an order for admission to work (appendix 2).

To issue an order for admission to work, a document is required confirming that the circumstances that were the basis for the removal of the employee from work have been eliminated.

For example, in the case when an employee who has not undergone a psychiatric examination is suspended from work, the basis for issuing an order for his admission to work will be a written decision of the medical commission on the suitability of the employee to perform work in conditions of increased danger, adopted as a result of a psychiatric examination of the employee.

According to part 4 of Art. 114 of the Labor Code of the Russian Federation, the temporary removal of a suspect or accused from office is canceled on the basis of a decision of the interrogating officer, investigator, when the application of this measure is no longer necessary. Thus, if the employee was removed from office by a court order, and then the organization received an investigator’s decision to cancel the temporary suspension from office, then the employer in the order for admission to work allows the employee to start performing his duties with reference to the investigator’s decision.

According to Art. 76 of the Labor Code of the Russian Federation, the length of service giving the right to the annual basic paid leave does not include the time the employee is absent from work without good reason, including due to his removal from work.

However, there is an exception to this rule: the period of suspension from work of an employee who has not undergone a mandatory medical examination (examination) through no fault of his own is included in the specified length of service.

The procedure for issuing a suspension

Documentary decorsuspension employee from work depends not only on what rules are established in the organization by the instructions for office work, but also on the basis suspension. In addition, as already noted in the previous parts of the publication, certain sectors of the economy provide for simplified proceduressuspension(for example, in organizations of transport, catering, food production, etc.).

As a general rule, an employer's decision to suspension employee from work(not allowed to work) is issued by order (instruction) of 1 head of the organization. Despite the fact that such an order is accepted for accounting by the accounting department (since the payment of wages is suspended), its unified form has not yet been approved by the State Statistics Committee of Russia. Therefore, organizations should compile this document on their own.

What should be included in such an order? First of all, you need to list the circumstances that served as the basis suspension employee, as well as documents that confirm such grounds. According to the second part of Article 76 of the Labor Code of the Russian Federation, the employer removes from work(does not allow work) of the employee for the entire period of time until the elimination of the circumstances that served as the basis for suspension from work or denial of work.

If at the time of drawing up the order this period can be determined, then it is desirable to indicate it in the order. For example, this is possible in the event of the suspension of an employee who appeared at work in a state of intoxication, as well as when the period of suspension is specified in the decision (other act) of the body or official authorized in accordance with the law to require the employer to remove employees from work.

However, it is not always possible to limit the time of suspension to a specific date. Thus, the decision on the temporary removal of the accused from office, issued by the court, pursues the goal of preventing the accused from destroying evidence or otherwise preventing the establishment of the truth during criminal proceedings. The period of validity of the decision on the temporary removal of the accused from office is determined by the circumstances of the criminal case, the personality of the accused, and therefore the time of suspension may last until the sentence is passed and it enters into force. Temporary removal from office may also be lifted (cancelled) in the course of criminal proceedings - when the application of this measure is no longer necessary. According to Part 4 of Article 114 of the Code of Criminal Procedure of the Russian Federation, the temporary removal of the accused from office is canceled on the basis of a decision of the interrogating officer, investigator, or prosecutor. In this case, it is problematic to determine the time of suspension in the order.

The same should be said about an employee who is a carrier of pathogens of infectious diseases and suspended on the basis of a decision of the state sanitary doctor: the employee is suspended from work until he is completely cured.

In some cases, indicating the time of suspension may not be appropriate. So, if the order to suspend an employee from work who has not undergone a periodic medical examination indicates the date until which the employee is suspended (i.e., the period is set during which the employee must undergo an examination), then if the employee and the inspection is not completed before the date specified in the order (regardless of the reasons), the employer will be forced to issue a new order to suspend the employee from work or to extend the validity of the order to suspend him from work, which will lead to an unjustified increase in document flow.

In addition to the information listed in the order to suspend the employee from work, it is advisable to give an order to the accounting department to suspend the calculation of wages for the period of suspension (sample orders are given in the "Papers" section). If the order formalizes the removal from office, then it should indicate who will perform the duties of the removed employee.

For certain industries, the legislation provides for a simplified registration procedure. This is due to the fact that in the presence of a number of circumstances, such as the appearance of an employee in a state of intoxication (alcoholic, narcotic, toxic), a prompt decision on the issue of removal is required. In such organizations, the suspension, as a rule, is carried out by a medical officer based on the results of the pre-flight (pre-flight, pre-shift) examination, recorded in the journal or book of registration of cases of suspension from flights (flights, shifts). However, despite this, a kind of "sanction" of the head of the organization or the relevant official is still required, since the suspension from work is associated with the suspension of payroll.

In order to promptly make decisions on the removal of employees from work on the grounds provided for by law, it is desirable to define a suspension scheme in the local acts of the organization. For example, to determine the authority of the immediate supervisor of an employee to remove the latter if he appears at work in a state of intoxication, and also to make it obligatory to notify a higher official of the fact of removal. Such a suspension scheme may determine the form, content and timing of the notice.

What if in the order the end time of the suspension is not determined by a specific date, but is due to the performance of a certain action (for example, the employee is suspended until a scheduled medical examination)? Should an order be issued to end the suspension from work (on admission to work)? Perhaps it should. Especially if no wages were accrued during the suspension. However, issuance of this order requires confirmation that the grounds for suspension have ceased. So, if the employee was removed from office by a court order, and then the organization received a prosecutor’s decision to cancel the temporary suspension from office, then the employer in an order with a similar name (“on the cancellation of temporary suspension from office”) allows the employee to begin to perform his duties with reference to the decision of the prosecutor.

One more example. According to the Rules for the certification of welders and specialists in welding production, approved by the Decree of the Gosgortekhnadzor of Russia dated October 30, 1998 No. 63, welders temporarily suspended from work for violation of the welding technology or repeated unsatisfactory quality of the production welded joints made by them are allowed to work after passing an extraordinary certification. The documents that draw up the results of the certification will also be the basis for issuing an order for the admission of workers to work.

If the order to dismiss an employee who has not passed the knowledge test of labor protection standards was drawn up, for example, on the basis of an order from a state supervision inspector or at the request of a labor protection service specialist, then such an order will be valid until the employee passes the knowledge test. The document confirming the fact that the employee has passed the test of knowledge of labor protection requirements in accordance with the Procedure for training on labor protection and testing the knowledge of labor protection requirements of employees of organizations, approved by the Decree of the Ministry of Labor of Russia and the Ministry of Education of Russia dated 13.01.2003 No. 1/29, is the protocol of the meeting of the commission to test the knowledge of labor protection requirements of employees. In this case, the order on the admission of the employee to work or the termination (cancellation) of the suspension should indicate the date and number of the protocol.

When issuing admission to work for employees suspended at the request of authorized bodies and officials, it should be borne in mind that the formal basis for admitting an employee is the cancellation of the requirement addressed to the employer. Most of the regulatory legal acts that establish the rules for sending demands and orders for dismissal from employees by the indicated bodies and officials, as a rule, determine the procedure for canceling such demands and orders. But in any case, the employer should clarify with the official who sent such a requirement (instruction, decree) how this requirement will be canceled.

In practice, often the admission of an employee to work after his dismissal is issued by the publication an order to cancel a previously issued order about removal. As a general rule, if the order changes, cancels or supplements a previously issued document or some of its provisions, then one of the paragraphs of the administrative part of the text should contain a reference to the canceled document (document paragraph) indicating its date, number and title; the text of the paragraph should begin with the words "Recognize invalid ..." 2 . This approach is not entirely justified, since in this way not only the employee’s admission to work can be formalized, but also the unlawful removal of the employee from work can be canceled, i.e. repeal of the suspension order from the moment of its issuance.

The second approach, which is considered more legitimate from a legal point of view, is to issue order to terminate (cancel) suspension. If the dismissal order contained an instruction from the accounting department about non-accrual of wages, then this order should be removed in the cancellation order (a sample order is given in the "Papers" section).

Once again, we draw the attention of employers to the fact that the documentation of the suspension and subsequent cancellation of the suspension is carried out in accordance with the rules for conducting office work in the organization, as well as taking into account the specifics provided for by law for organizations in certain industries.

Salary during suspension

According to part three of Article 76 of the Labor Code of the Russian Federation, during the period of suspension from work (non-admission to work), wages are not accrued to the employee, with the exception of cases provided for by federal laws.

First of all, such an exception is contained in the third part of the named article - in cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory preliminary or periodic medical examination through no fault of his own, he is paid for the entire period of suspension from work, as for simple, that is, in accordance with Article 157 of the Labor Code of the Russian Federation. The named article distinguishes the procedure for paying for downtime that occurred through the fault of the employer, from downtime that occurred for reasons beyond the control of the employer and employee: in the first case, downtime is paid in the amount of at least 2/3 of the employee's average salary; in the second - at least 2/3 of the tariff rate (salary).

One of the federal laws that provides for an exception to the rule provided for by part three of Article 76 of the Labor Code of the Russian Federation is Federal Law No. 119-FZ of July 31, 1995 “On the Fundamentals of the Public Service of the Russian Federation” (as amended on November 7, 2000), paragraph 2 of article 14 of which it is established that for the period of removal of a civil servant who has committed an official misconduct, he retains a monetary allowance. At the same time, in relation to certain categories of civil servants, the payment of bonuses is suspended. So, for example, according to the order of the Ministry of Internal Affairs of Russia dated 03.06.2002 No. 528, the legal allowance is not paid to employees of the internal affairs bodies of the Russian Federation, military personnel of the internal troops of the Ministry of Internal Affairs of the Russian Federation, persons replacing the positions of the federal public service for the period of removal from office if they are involved as accused of committing a crime, as well as in the event of a gross violation of official discipline, making it impossible for them to perform their official duties.

A certain form of compensation for those removed from office under Article 114 of the Code of Criminal Procedure of the Russian Federation is provided for by Article 131 of the same Code. In accordance with subparagraph 8 of part 2 of article 131, the accused who is temporarily suspended from office on the basis of a court order is paid a monthly allowance in the amount of 5 times the minimum wage, which, by virtue of part 1 of the same article, is reimbursed from the federal budget or the funds of participants in criminal proceedings .

In case of removal on certain grounds, the legislation provides for the payment of benefits for state insurance. For example, such benefits are issued in cases established by:

• Article 14 of the Federal Law of June 18, 2001 No. 77-FZ "On the Prevention of the Spread of Tuberculosis in the Russian Federation" - for patients with tuberculosis;
• article 33 of the Federal Law of March 30, 1999 No. 52-FZ "On the sanitary and epidemiological well-being of the population" (as amended on January 10, 2003) - to employees who are carriers of pathogens of infectious diseases (if they can be sources of the spread of infectious diseases due to the peculiarities in which they are employed or the work they perform) who cannot be transferred to work that does not involve the risk of spreading infectious diseases.

In addition, in accordance with paragraph 19 of the Regulations on the procedure for providing benefits for state social insurance, approved by the Decree of the Presidium of the All-Union Central Council of Trade Unions of January 12, 1984 No. 13-6 (as amended on March 17, 2000), if a worker or employee was suspended from work by the sanitary - the epidemiological service due to a contagious disease of the people around him, then during quarantine such an employee is given temporary disability benefits.

Liability for unlawful suspension

According to Article 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if the earnings are not received as a result of the employee's unlawful removal from work.

Suspension from work, during which wages are not accrued, will be declared illegal if the employer violates the procedure established by Article 76 of the Labor Code of the Russian Federation, that is, removes the employee on grounds not provided for in this article, or removes him without sufficient grounds. Therefore, it is very important to take care of the preparation of the necessary documents confirming the existence of the circumstances provided for in Article 76 of the Labor Code of the Russian Federation.

In addition, responsible employees who, in accordance with local regulations, are entitled to promptly remove employees from work, followed by notification of a higher official or head of the organization, should remember that suspension without sufficient grounds entails disciplinary liability.

Suspension from work is an atypical action that employers do not often encounter. So, unfortunately, there are a lot of mistakes in this area. Therefore, in order not to get into trouble, let's analyze the main ones. Moreover, in a number of cases established by law, the employer is obliged to remove the employee from work.

The Labor Code of the Russian Federation does not establish a special concept of "suspension from work". Suspension from work is understood as a forced prohibition of an employee to perform his duties, initiated by the employer or other authorized person.

Suspensions

The employer is obliged to remove the employee from work in cases(Article 76 of the Labor Code of the Russian Federation):

• his appearance at work in a state of alcoholic, narcotic or other toxic intoxication;
• if the employee has not undergone training and testing of knowledge and skills in the field of labor protection in accordance with the established procedure;
• if the employee has not passed, in the prescribed manner, a mandatory medical examination (examination), as well as a mandatory psychiatric examination in cases provided for by federal laws and other regulatory legal acts of the Russian Federation;
• identifying, in accordance with the medical report, contraindications for the employee to perform work stipulated by the employment contract;
• suspension for up to two months of the employee's special right (license, right to drive a vehicle, the right to carry weapons, other special rights), if this entails the impossibility for the employee to fulfill the obligations under the employment contract and if it is impossible to transfer the employee with his written consent to another the employer's job (both a vacant position or a job corresponding to the qualifications of the employee, and a vacant lower position or lower-paid job), which the employee can perform taking into account the state of his health;
• requirements of bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation;
• in other cases provided for by federal laws and other regulatory legal acts of the Russian Federation;
• as well as for a period of up to four months - if it is established on the basis of a medical report that the employee needs to be transferred if such a transfer is impossible. This obligation arises for the employer, regardless of the reason for such impossibility of transfer (the employee’s own refusal to transfer or the employer’s lack of a corresponding job). Suspension is carried out for the entire period specified in the medical report with the preservation of the place of work (position) (Article 73 of the Labor Code of the Russian Federation).

Question on topic

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There was a theft in our store (or rather, the appropriation of entrusted property). The employee who is accused of this is a financially responsible person. There is a preliminary investigation. The head, fearing further criminal actions on the part of this employee, instructed the personnel service to remove him from work. As far as I understand, we do not have the right to do so? How can we protect ourselves from the possibility of repeating the crime? The employee does not insist on dismissal, and the employer does not want to dismiss him until the preliminary investigation is completed and all the circumstances of the case are clarified.

Yes, you do not have the right to suspend an employee from work. The employer has only the obligation to remove him in cases provided for by the Labor Code of the Russian Federation. Theft or misappropriation of entrusted property is not included in the list of grounds for removal (Article 76 of the Labor Code of the Russian Federation). The only reason that suits your situation is the removal of an employee at the request of bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation. Such body in the production of preliminary investigation is the court. According to Art. 114 of the Code of Criminal Procedure of the Russian Federation, the investigator, with the consent of the head of the investigative body, as well as the interrogating officer, with the consent of the prosecutor, initiates a corresponding petition before the court at the place where the preliminary investigation is conducted. However, such actions are entirely the initiative of the preliminary investigation authorities, and not the employer. Of course, no one forbids the employer to intercede with the investigator about this. But whether your request will be granted is a big question. In any case, you can restrict the offending employee's access to material values, not trusting him with them, and direct his actions to perform other functions in accordance with his official duties. For example, for the formation of statements, archival cash documents, etc. And the removal does not occur, and at the same time, the values ​​are not temporarily entrusted. The goal has been achieved by the employer, and the law has not been violated.

Terms of suspension

Suspension period lasts from the moment the above circumstances are revealed and until they are eliminated (Article 76 of the Labor Code of the Russian Federation). If the circumstances in connection with which the legislator connects the employer with the obligation to remove the employee from work are not identified by the employer immediately, but after a lapse of time, the employer is obliged to remove the employee immediately upon revealing these circumstances.

Question on topic

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An employee who has received a medical opinion about the need to transfer to light work hides this due to the fact that he knows that the employer does not have the opportunity to transfer him to another job. In addition, there is a possibility that he will receive a more stringent medical opinion in the future - about the need for a permanent transfer to another position. The employer accidentally found out about this, but he does not have any supporting documents about the state of health of the employee. What should an employer do? Is he obliged or has the right to remove such an employee from work?

The law secured the employer only the obligation to remove from office, without giving him the right to do so. Since you do not have any documents certifying the need to transfer the employee to another position, you, as an employer, should not remove the employee. Removing him from office, you may encounter his resistance, and in the future, perhaps, with a dispute about the recognition of the suspension as illegal and the collection of average earnings for the entire period of suspension. However, due to the presence in the legislation of the requirements for regular medical examination of most categories of employees, the employee can already be forcibly sent by you for a medical examination, the results of which he will not be able to hide. Upon receipt of a medical opinion based on the results of a scheduled examination, feel free to remove the employee if you do not have the opportunity to transfer him to light work.

Extended suspension option. According to Art. 73 of the Labor Code of the Russian Federation, an employment contract with the heads of organizations (branches, representative offices or other separate structural divisions), their deputies and chief accountants who, in accordance with a medical report, need temporary or permanent transfer to another job, in case of refusal to transfer or the employer does not have an appropriate work is terminated in accordance with paragraph 8 of the first part of Art. 77 of the Labor Code of the Russian Federation. However, the employer has the right, with the written consent of these employees, not to terminate the employment contract with them, but to remove them from work. for a period determined by agreement of the parties . Thus, the law contains the only case of an extended (more than four months) suspension period.

For your information

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The period of suspension of an employee who has not undergone a mandatory medical examination (examination) through no fault of his own from work is included in the length of service, giving the right to annual paid holidays (Article 121 of the Labor Code of the Russian Federation). The specified length of service also includes the time of forced absenteeism in case of illegal dismissal or removal from work and subsequent reinstatement in the previous job.

However, the length of service, which gives the right to the annual basic paid leave, does not include the time the employee was suspended from work in the cases provided for in Art. 76 of the Labor Code of the Russian Federation (that is, due to all reasons beyond the control of the employer).

Salary during suspension

The most significant issue for the employee is the issue of payment for the time of suspension. As a general rule, embodied in Art. 76 of the Labor Code of the Russian Federation, during the period of suspension from work (non-admission to work), wages are not accrued to the employee , except as provided by law.

Such exceptions installed for the following cases:

1. In accordance with Art. 114 of the Code of Criminal Procedure of the Russian Federation, if it is necessary to temporarily remove the suspect or accused from office, the investigator, with the consent of the head of the investigative body, as well as the interrogating officer, with the consent of the prosecutor, initiates a corresponding petition before the court at the place of the preliminary investigation. A suspect or accused temporarily removed from office is entitled to a monthly state allowance, which is paid to him in accordance with paragraph 8 of part 2 of Art. 131 of the Code of Criminal Procedure of the Russian Federation in the amount of five minimum wages. In their meaning, these payments are procedural costs that are reimbursed at the expense of the federal budget or the funds of participants in criminal proceedings.

   For your information

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   According to the Federal Law of June 1, 2011 No. 106-FZ “On Amendments to Article 1 of the Federal Law “On the Minimum Wage”, from June 1, 2011, the minimum wage is set at 4,611 rubles per month.

   Analyzing this norm, personnel officers tend to make the same mistake: when solving the issue under consideration, they apply the minimum wage in the amount of 100 rubles. However, in accordance with Art. 3 of the Federal Law of June 19, 2000 No. 82-FZ “On the Minimum Wage”, the minimum wage established by Art. 1 of this law (that is, in the amount of 4611 rubles), is used exclusively to regulate wages and determine the amount of benefits for temporary disability, pregnancy and childbirth, as well as for other purposes of compulsory social insurance. Based on the content of Art. 4 and 5 of the said law, the base amount of 100 rubles is used when calculating the amount of scholarships, allowances and other mandatory social payments, as well as taxes, fees, fines and other payments, while the monthly state allowance paid to a suspect or accused temporarily removed from office by a court decision, such payments and payments do not apply. This conclusion is confirmed by the Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the 2nd quarter of 2009, approved by the decision of the Presidium of the Supreme Court of the Russian Federation of September 16, 2009 (determination No. 84-O09-11).
   It is noteworthy how the point of view on this issue has changed. Thus, back in 2007, the Federal Customs Service indicated in its letter dated 05.22.2007 No. 01-06 / 18997 (now inactive) that the payment of a monthly allowance in case of temporary suspension from office to an official suspected or accused by a court decision in the amount of five minimum wages should be made on the basis of a base amount equal to 100 rubles. However, in 2010, her opinion changed dramatically. According to the letter of the Federal Customs Service of the Russian Federation of October 11, 2010 No. 01-11 / 49495 “On the amount of benefits in case of temporary removal from office by a court decision”, the state body indicates that the monthly state allowance is intended to compensate for losses in the monetary content (monetary allowance) of the relevant officials, in In this connection, the calculation of the monthly state allowance should be made on the basis of the established minimum wage used to regulate wages, which from 01.01. However, this calculation is not always applied.

   Arbitrage practice

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   The cassation ruling of the Judicial Collegium for Civil Cases of the Saratov Regional Court dated November 15, 2007 concluded that when an internal affairs officer is temporarily removed from office if he is accused of committing a crime that makes it impossible for him to perform his official duties, he is paid a monetary allowance in full size. The court motivated its conclusion by the provisions of Art. 16 "Regulations on service in the internal affairs bodies of the Russian Federation", approved. Decree of the Supreme Council of the Russian Federation of December 23, 1992 No. 4202-1.

2. According to paragraph 2 of Art. 33 of the Federal Law of March 30, 1999 No. 52-FZ "On the sanitary and epidemiological well-being of the population" persons who are carriers of pathogens of infectious diseases, if they can be sources of the spread of infectious diseases due to the peculiarities of the production in which they are employed, or the work they perform , with their consent, are temporarily transferred to another job that is not associated with the risk of the spread of infectious diseases. If it is impossible to transfer on the basis of decisions of the chief state sanitary doctors and their deputies, they are temporarily suspended from work with the payment of social insurance benefits. The social insurance benefit is accrued according to the rules established by the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood”.
3. Part 2 Art. 32 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” gives the representative of the employer of a civil servant the right to remove a civil servant from a civil service position (not to be allowed to perform official duties) during the period of conflict of interest settlement. At the same time, a civil servant retains a monetary allowance for the entire period of removal from a civil service position to be replaced.

   For your information

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   According to Art. 10 of the Federal Law of December 25, 2008 No. 273-FZ “On Combating Corruption”, a conflict of interest in the state or municipal service is understood as a situation in which the personal interest (direct or indirect) of a state or municipal employee affects or may affect the proper performance of his official ( official) duties and in which a conflict arises or may arise between the personal interest of a state or municipal employee and the rights and legitimate interests of citizens, organizations, society or the state, which can lead to harm to the rights and legitimate interests of citizens, organizations, society or the state. And the personal interest of a state or municipal employee, which affects or may affect the proper performance of his official (official) duties, is understood as the possibility for a state or municipal employee to receive income in the form of money, valuables, other property or property services in the performance of official (official) duties. nature, other property rights for themselves or for third parties.

4. In accordance with Part 6 of Art. 6 of the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood” in the event of quarantine of an employee who has been in contact with an infectious patient or who has a bacteriocarrier, for the entire time of his suspension from work in due to quarantine, temporary disability benefits are paid. If children under the age of 7 who attend preschool educational institutions or other family members who are duly recognized as incapacitated are subject to quarantine, temporary disability benefits are paid to the insured person (one of the parents, other legal representative or other family member) for the entire period of quarantine .
5. In accordance with paragraph 9 of Art. 41.7 of the Federal Law of January 17, 1992 No. 2202-1 "On the Prosecutor's Office of the Russian Federation", an employee who has committed a misconduct may be temporarily (but not more than one month) until the issue of imposing a disciplinary sanction is removed from office with the preservation of monetary maintenance. Suspension from office is carried out by order of the head of the body or institution of the prosecutor's office, which has the right to appoint an employee to the appropriate position. During the period of removal from office, the employee is paid a monetary allowance in the amount of the official salary, additional payments for class rank and length of service. The same amount shall be paid for the time of dismissal of the prosecutor for the entire period of investigation of the criminal case initiated against him.
   The time of suspension of an employee of the investigative committee who committed a misdemeanor, until the issue of applying a disciplinary sanction is resolved (but not more than one month), is paid in almost the same amount - in the amount of the monetary allowance (monetary allowance), in the amount of the official salary (salary according to the position), surcharges for a special rank (salary according to military rank) and surcharges (allowances) for length of service (parts 9 and 10 of article 28 of the Federal Law of December 28, 2010 No. 403-FZ "On the Investigative Committee of the Russian Federation").
6. In accordance with Art. 76 of the Labor Code of the Russian Federation in cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire time of suspension from work as for simple . Downtime payment is regulated by Art. 157 of the Labor Code of the Russian Federation.

Suspension procedure

The procedure for suspension can be described as a sequence of actions by the employer:

1. Identification of the circumstances referred to in Art. 76 of the Labor Code of the Russian Federation, in connection with the occurrence of which the employer has an obligation to remove the employee. For example, the presentation of a medical report by an employee.
2. Search in the staff list for other vacancies (in cases where the employer is obliged to offer the employee a temporary transfer). If there is no such obligation in the law, this stage is skipped.
3. Written notification of the employee about the proposed vacancies with the employer (other work). Since the employer’s obligation to offer another job arises only in two cases: if there is a medical certificate on a temporary transfer to “light” work and if the employee’s special right is suspended, then the passage of the considered stage of the employer’s offer of another job to the employee is provided only in these cases. If the employer agrees to the transfer, the standard procedure for transferring the employee to another position is performed.
4. In the absence of vacancies and other work that the employee can perform (in cases of passing stages 2 and 3) and in all other cases - issuance of an order to remove the employee from office with a mandatory indication of the period of suspension and reasons. The form of the order is arbitrary, since the unified form of this document is not legally approved.
5. Familiarization of the employee with the order under a personal signature. If he refuses to familiarize or certify the fact of familiarization with a signature - drawing up an act on this.
6. Actual suspension from work (non-admission to work).
7. After the elimination of the circumstances that caused the removal of the employee from work, the issuance of an order for admission to work and the actual admission of the employee to work. The legislator has not approved a unified form of an order for admission to work. In an arbitrary form of an order for admission to work, it is necessary to indicate the date the employee was admitted to work, the reasons that served as the basis for admission. It is also possible, as one of the points, to fix the order of the accounting department of the enterprise to begin accruing wages to the employee in full from the date of his admission to work. The employee must be familiarized with the order under a personal signature. If the employer refuses to sign, the commission draws up an appropriate act.

Dismissal is not a pattern of removal of an employee from work. Dismissal is possible only in the following cases:

• the employee's refusal to transfer if, in accordance with a medical report, he needs a temporary transfer to another job for a period of more than four months or a permanent transfer (Article 73 of the Labor Code of the Russian Federation). In this case, the dismissal is carried out according to paragraph 8 of the first part of Art. 77 of the Labor Code of the Russian Federation;
• failure to eliminate the circumstances that caused the employee to be suspended from work at the end of the suspension period;
• application to the employee of the most severe disciplinary measure - dismissal. At the same time, the dismissal is not a consequence of suspension from work, but a consequence of the ongoing violation of labor discipline by the employee.

Major Suspension Mistakes

Since such a procedural measure as a suspension is still rare for most employers, errors in its application are quite common. Moreover, errors are typical in almost all cases. Consider the most popular of them.

1. The application of grounds for removal not provided for in Art. 76 of the Labor Code of the Russian Federation. Meanwhile, the absence of a statutory basis for removal entails the recognition of the removal order as illegal and the recovery of lost earnings from the employer in favor of the employee. All grounds for removal are listed in Art. 76 of the Labor Code of the Russian Federation and are not subject to broad interpretation!

   Arbitrage practice

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   An employee may be removed from office only on the grounds provided for by law.

   M. applied to the Tukaevsky District Court against the LLC with a claim to declare the order to remove from work illegal, to make a record of dismissal in the work book, to issue a work book, to recover earnings for the time of forced absenteeism and illegal suspension from work and compensation for unused vacation. In support of her claims, M. indicated that she had worked at the defendant's branch as a director.<Дата>according to the employees of the employer, she was suspended from work (not allowed) on the basis of revealing a shortage in her.<Дата>she gave her employer a letter of resignation<дата>, however, on the last day, she was not acquainted with the dismissal order, the work book was not issued, the calculation was not made.

   Despite the presence in the case of evidence of the notification of the defendant about the date and time of the consideration of the case, the defendant did not appear at the hearing, did not present evidence, did not send the requested original documents to the court. On the basis of the documents available in the case, the court found that there had been an unlawful removal of the plaintiff from work. The corresponding order was issued, but the plaintiff was not familiarized with it. Having considered the case, the court found the removal of the plaintiff from work illegal due to the absence in Art. 76 of the Labor Code of the Russian Federation grounds for removal - identification of a shortage. In addition, the suspension procedure was violated. In accordance with Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the employee for earnings not received by him in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if earnings are not received as a result, among other things, of the illegal removal of the employee from work and the delay by the employer in issuing a work book to the employee. The court established that there was an unlawful suspension of the plaintiff from work, forced absenteeism due to the non-dismissal of the plaintiff according to her application to date and a delay in issuing a work book to the plaintiff, in connection with which she was illegally deprived of the opportunity to work.

   In connection with the above, M.'s claims against LLC were satisfied by the decision of the Tukaevsky District Court of the Republic of Tatarstan dated 05.05.2011 in case No. 2-472. The court found the LLC's order to remove the director of M.'s branch from his post as unlawful; ordered the employer to make an entry in M.'s work book about dismissal of his own free will; collected from the defendant in favor of M. earnings for the entire time of illegal suspension from work, for the time of forced absenteeism and the delay in issuing a work book.

2. Failure to comply with the order of suspension. This violation tends to be expressed in non-compliance by the employer with the requirements of the law to offer the employee to temporarily transfer to another position, to perform other work. Such a requirement is established only for cases where it is necessary to remove an employee for medical reasons on the basis of a medical report, as well as on the basis of the suspension of an employee’s certain right/permit to perform work.
   Especially popular is the absence of the employee's signature in familiarization with the dismissal order, as well as the absence of a familiarization signature in the order for subsequent admission to work. Meanwhile, the lack of acquaintance of the employee with these documents deprives the employer of further evidence in court. An employee who is not familiar with the suspension order, which indicates the period of suspension, the payment procedure, and the employer’s requirements, for example, to undergo a medical examination, legally does not comply with the requirements of the order. Failure to familiarize the employee with the order on admission to work does not give the employer confirmation that the employee is familiar with the day of going to work. In this regard, his further absence from work cannot be regarded by the employer as absenteeism. If the employee refuses to sign the above documents, it is necessary to draw up a commission act on the employee's refusal to familiarize / sign the relevant order.

   Arbitrage practice

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   Violation of the order of suspension from work and incorrect application of the provisions served as a reason for declaring the order of suspension illegal.

   M.A.A. applied to the court with a statement of claim against GTSK-Stroy LLC, in which, taking into account the clarifications, he asked that the order to remove him from work be declared illegal, reinstate him as a crane operator, and collect wage arrears. Management's suspicions that the plaintiff had stolen diesel fuel, as well as the employee's lack of a tractor driver's license allowing him to work on a GROVE crane, served as grounds for issuing an order to remove the plaintiff from work. The plaintiff considered the suspension from work illegal, since he was not warned about the suspension from work or about dismissal, the grounds for suspension from work do not meet the requirements of Art. 76 of the Labor Code of the Russian Federation.

   Considering the case, the court pointed out that Art. 76 of the Labor Code of the Russian Federation does not provide for such a basis for removing an employee from work as suspicion of embezzlement, in connection with which the court assessed M.A.A. from work on the specified basis.

   As for the removal of M.A.A. on the second ground (failure to present a tractor driver's driver's certificate), the court also found it illegal for the following reasons. According to the explanations of the representative of the employer, the plaintiff was hired with a trial period of three months, during which he had to undergo appropriate training and receive an appropriate certificate. The trial period has expired, the dismissal did not occur, in connection with which the plaintiff is considered to have passed the test. The court concluded that the plaintiff was initially allowed by the employer to work for which he did not have the right. With the removal of M.A.A. the employer violated the procedure for removal from work, provided for in Art. 76 of the Labor Code of the Russian Federation. M.A.A. was suspended from work for an indefinite period, and he was not offered another job available to the employer - a vacant position or a job corresponding to the qualifications of the employee, as well as a vacant lower position or a lower-paid job. Evidence of the absence of such work at the enterprise was not presented by the employer.

   The Oktyabrsky District Court of Kaliningrad (decision dated March 19, 2009 in case No. 2-139/2009) claims M.A.A. partially satisfied: the order to remove the plaintiff from work was declared illegal, the employer was charged in favor of the employee for lost earnings as a result of illegal removal from work, as well as compensation for non-pecuniary damage. By the cassation ruling of the Kaliningrad Regional Court dated May 27, 2009, the decision of the Oktyabrsky District Court was upheld.

3. Incorrect suspension payment. As a general rule, no wages are accrued for the period of suspension of an employee from work, with the exception of cases established by law. Usually it is about these exceptions that the employer “forgets”.

   Arbitrage practice

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   The suspension period for a medical examination not completed due to the fault of the employer must be paid in accordance with Art. 76 of the Labor Code of the Russian Federation.

   M. filed a lawsuit against the Regional Hospital No. 3, demanding that the order be canceled in terms of non-reservation of his salary during the medical examination, the recovery of wages for the time of suspension from work, as well as for downtime. In justification, M. indicated that he worked at the MUSE “RB No. 3”. by order<>he was suspended from his post for a period of 2 months and ordered to undergo an extraordinary medical examination for the right to drive a vehicle due to a deterioration in his health.<Дата>he submitted a medical certificate on passing a medical examination with admission to work in his previous position. Asking to cancel the order<>in terms of non-payment of wages for the duration of the medical examination.

   Having listened to the explanations of the plaintiff and his representative, having studied the materials of the case, the court considers the claims to be subject to partial satisfaction.

   Taking into account the requirements of the legislation (Articles 328, 212 of the Labor Code of the Russian Federation), upon receipt of information about the deterioration of the plaintiff's health, the employer, by order of the Ministry of Healthcare of the Republic of Belarus No. 3, removed M. from work and ordered him to undergo an extraordinary medical examination for the right to drive a vehicle. The order also indicated that M. was offered a vacant position<данные изъяты>, in case of refusal to transfer M., suspend him from work until the necessary documents are provided, with a maximum suspension period of up to two months. Paragraph 5 of the order stipulates that in case of refusal from office<данные изъяты>M. do not accrue wages. However, evidence showing that the defendant organized a medical examination of M. after the deterioration of his health was not presented to the court in accordance with the established procedure. In the case file there is a referral of the plaintiff for a medical examination, issued after the contested order was issued.

   The Khabarovsk District Court of the Khabarovsk Territory, by decision dated May 27, 2011 in case No. 2-669 / 2011, satisfied M.'s claims: clause 5 of the order regarding non-calculation of wages during the suspension from work for medical examination was canceled.

4. The use of suspension as a disciplinary sanction, which is not provided for by any norm of the Labor Code of the Russian Federation.

   Arbitrage practice

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   It is illegal to use a suspension from work as a disciplinary sanction.

   K. filed a lawsuit against the defendant for reinstatement, recovery of wages, recovery of average earnings for the period of forced absenteeism, compensation for unused vacation and compensation for non-pecuniary damage. In support of the claim, K. indicated that she worked for Royalty-Mebel LLC. According to the results of the next meeting of the founders of this society, she was removed from office for lack of confidence. The plaintiff asked that her removal from work be recognized as unlawful and that the defendant be ordered to allow her to work; collect from the defendant the average earnings for the entire period of illegal suspension from work. From the explanations of the defendant's representatives, it follows that the reason for the dismissal of the plaintiff from work was distrust of her, caused by the violations she committed in her work. Thus, the defendant used this measure as a disciplinary sanction, intending to carry out the dismissal of the plaintiff, but did not comply with all the provisions of Art. 193 of the Labor Code of the Russian Federation of mandatory actions to terminate the employment contract. However, as the court pointed out, such a measure is not provided for by Art. 192 of the Labor Code of the Russian Federation, which establishes a list of disciplinary sanctions. Its application is not provided for by Art. 76 of the Labor Code of the Russian Federation, listing cases of possible suspension from work.

   Under such circumstances, the dismissal of the plaintiff from work is illegal. In connection with the above, the Sverdlovsky District Court of the city of Kostroma, by decision dated 06/25/2010 in case No. 2-1931 / 10, satisfied K.'s claim: recognized K.'s removal from work as illegal, ordered Royalty-Mebel LLC to allow K. to work.

Major controversy surrounding the suspension

The subjects of claims of employees against the employer related to suspension are not diverse. There are several typical requirements of employees, which, depending on the specific situation and circumstances of dismissal, may be single or act in conjunction with other requirements from the list below:

• on the recognition of the order as illegal;
• on the recovery of lost wages for the period of illegal suspension from work;
• about reinstatement at work (if after the dismissal the employee was dismissed);
• recovery of average earnings for the period of forced absenteeism;
• recovery of sums of money for the period of downtime due to the fault of the employer;
• changing the entry in the work book on the grounds for dismissal;
• on the obligation of the employer to dismiss the employee and issue a work book (typically for situations when the employee expresses a desire to quit of his own free will during the period of suspension and the absence of appropriate responses from the employer);
• on the recovery of compensation for non-pecuniary damage and the costs of paying for the services of a representative.

The study of the statistics of disputes related to suspension leads to the conclusion that the intentional unlawful suspension of an employee from work is much less common than the employer's mistakes caused by legal illiteracy and lack of knowledge of the issue of suspension by personnel workers. Unfortunately, the only option to correct the mistakes made may be the cancellation of the order (recognizing it as invalid) with the issuance of an appropriate order by the accounting department of the enterprise to recalculate the employee's wages, including with compensation under Art. 236 of the Labor Code of the Russian Federation. Otherwise, a labor dispute may arise.

An analysis of judicial practice shows that if there are mistakes made by the employer when removing an employee from work, the probability of recognizing the removal order as illegal and satisfying other requirements of the employee is quite high. Disputes related to suspension are almost always confusing and require both an in-depth study of the situation by the court and careful preparation of the evidence base by the employer on its part. It should be noted that the parties to labor relations do not always go “to the end” in these types of disputes. For such disputes, more often than for other labor disputes, it is typical for the parties to reach agreement and conclude a settlement agreement. Thus, the likelihood of resolving a dispute that arose due to a violation by the employer of the requirements of labor legislation in terms of compliance with the grounds and procedure for dismissal exists in the interests of both parties.

Arbitrage practice

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The wrongness of both sides of the labor relations required them to conclude a settlement agreement.

The plaintiff N. filed a lawsuit against the defendant Malahit LLC with a demand to recognize as illegal the order to remove him from work as a driver and to recover compensation for non-pecuniary damage. N. motivated his arguments by the fact that when he came to work on 03.03.2010, an explanatory note was requested from him regarding the failure to fulfill yesterday's application. After his refusal to give explanations, he was asked to resign, to which he also refused. After that, N. was suspended from work. The plaintiff considers the removal unlawful, in connection with which he applied to the court with the above requirements.

From the testimony of the representatives of the employer, the court found that the plaintiff had been improperly fulfilling his duties for a long time. Regarding the last failure to fulfill his duties, an explanatory note was demanded from him, to which the plaintiff refused. Then the employer did not allow N. to work. There was no suspension order, so there was no suspension from work. But on March 4 and the following days, N. did not appear at work.

During the trial, the parties reached an amicable agreement. Defendant LLC "Malachite" dismisses N. from 01.04.2010 at his own request with payment from March 3 to March 31 of wages at the rate. Claimant N. asks to terminate the proceedings in connection with the conclusion of a settlement agreement. By the decision of the Chernushinsky District Court of the Perm Territory dated 04/06/2010 in case No. 2-268/2010, these conditions of the settlement agreement were approved.

Footnotes

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Suspension from work is not a frequent procedure, it is not psychologically simple and, as a rule, unexpected. Since it is connected with the direct relationship between the employer and the employee, it cannot be done without the participation of a personnel officer, whose activities always take place at the intersection of the interests of both parties. The personnel officer must be able to assess the situation, give advice on time and competently, correctly draw up all the necessary documents. In this article, you will find answers to the main questions regarding the suspension procedure.

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Suspension: what, where, when?

The suspension procedure has many criteria.

Firstly, the legislator does not give a clear definition of the term "suspension from work". From the content of Article 76 of the Labor Code, it follows that it means the exclusion of an employee from work for some time.

Secondly, it is possible to dismiss an employee both before he actually began to perform his job duties, and during their performance.

Third, suspension can be made for various reasons 1 . Their list is not exhaustive. However, it will be unlawful to be suspended from work without sufficient grounds.

Fourth, it is possible to remove an employee from work, both at the initiative of the employer, and bodies and officials authorized to do so by law 2 .

Fifth how to draw up the removal procedure, the legislator left it up to the employer to decide on their own. In order to avoid undesirable consequences, it is necessary to objectively assess the situation, carry out all the necessary actions in the correct sequence in relation to the removal of the employee, and pay great attention to the preparation of documentation during this procedure.

Finally, At sixth, you need to try not to make a mistake with the terms of suspension.

What are the reasons?

In practice, the most common reasons for the dismissal of an employee are: the appearance of an employee at work in a state of alcoholic intoxication, the failure to undergo training in the field of labor protection or a mandatory medical examination in accordance with the established procedure, the identification, in accordance with a medical report, of contraindications for performing a labor function, as well as the suspension actions or deprivation of a special right of an employee.

As a rule, the listed reasons are the grounds for the removal of an employee at the initiative of the employer. And, most often, mistakes are made in the execution of the suspension precisely for these reasons.

The reasons for dismissing an official or a body authorized by law are not directly specified in Article 76 of the Labor Code, and there is no listing of persons and bodies authorized to initiate this procedure. However, in other articles of the Code and regulations there is a direct indication of who and when has the right to come up with an initiative to remove. So, for example, according to Article 357 of the Code, an inspector of the state labor inspectorate has the right to issue orders to dismiss from work persons who have not undergone training in safe methods and techniques for performing work in the prescribed manner, briefing on labor protection, internships at the workplace and testing knowledge of labor protection requirements .

The court, at the request of the investigator with the consent of the prosecutor, issues a decision on temporary suspension from work, which is mandatory for the employer. This is stated in article 114 of the Code of Criminal Procedure.

The chief state sanitary doctors have the right to temporarily suspend from work persons who are carriers of pathogens of infectious diseases, in accordance with Article 51 of the Federal Law of March 30, 1999 No. 52-FZ 3 .

We make out correctly

Let us analyze the suspension procedure using the example of the appearance of an employee at the workplace in a state of intoxication.

If such a fact is discovered, then, first of all, it must be recorded. You need to approach this as objectively as possible. To do this, a person who, by all indications, has found a drunk employee, and he, as a rule, is his manager or an employee of the personnel department, will need to write a memorandum.

Alternatively, you can draw up an appropriate act. In any case, the obligatory presence of at least two witnesses will be required. In a memorandum (or act), the signs of intoxication should be described in detail. When describing the condition, it should be taken into account that the primary signs of alcohol intoxication are: the smell of alcohol in the exhaled air, impaired coordination of movements, instability, unsteady gait. The act or memorandum is signed by the employee and witnesses who compiled it, in confirmation of their presence during the preparation. This is extremely important, otherwise the document will not be considered evidence later. It is also important to familiarize the dismissed employee with this document. And if he waives his right to familiarize himself with the content of the act or memorandum, it is necessary to make a note about this.

For the weight and reliability of the evidence, if suddenly the employee subsequently wants to go to court regarding the illegality of his removal, it is better if the employer has a medical certificate in his hands. This "certificate" is issued based on the results of an examination for intoxication, and it gives a clear description of the state of the employee at the time of the procedure.

Examination is carried out in specialized rooms of narcological dispensaries (departments) by narcologists. However, you need to know that it is impossible to send an employee to him forcibly 4 .

The fact of suspension from work should also be formalized in writing by issuing an appropriate order by the head of the organization. There is no unified form of such an order, so the employer has the right to develop his own form. However, in such an order it is necessary to indicate the circumstances that caused the employee to be removed from work; a link to documents confirming these circumstances; term or period of suspension from work; an instruction from the accounting department to suspend the accrual or change the amount of the employee's salary for the period of suspension.

An important issue is the correct execution of the time sheet (No. T-12). Taking into account that accounting for the use of working time is carried out by the method of continuous registration of attendances and absences, and during the period of suspension from work, the employee actually does not perform his labor functions, it would be more correct to mark the days of suspension as absenteeism in the time sheet.

You will find a sample time sheet in the electronic version of the article.

Liability for unlawful suspension

If the employer violates the procedure defined by Labor Law 5: the employee is suspended from work on grounds not specified in the code or without sufficient grounds, the suspension from work will be considered illegal. At the same time, taking into account that during the period of suspension from work, the employee is not paid wages, then, if the suspension is recognized as illegal, the employer will have to pay the employee the earnings that he did not receive 6 .

For the unlawful deprivation of an employee of the right to work, the employer and his officials may also be subject to administrative liability 7 .

In addition, officials whose duties include the removal of employees may be subject to disciplinary action.

In conclusion, we note that compliance with the suspension procedure and proper paperwork will be the key to a quick and painless establishment of the labor process, and will help to avoid later labor disputes 8 and claims from the inspection authorities.

1 The main ones are given in article 76 of the Labor Code of the Russian Federation
2 Clause 6, Part 1, Art. 76 TC
3 "On the sanitary and epidemiological well-being of the population"
4 Article 33 of the Fundamentals of the Legislation of the Russian Federation on the protection of the health of citizens, approved by the Supreme Court of the Russian Federation on July 22, 1993 No. 5487-1
5 Article 76 of the Labor Code of the Russian Federation
6 Article 234 of the Labor Code of the Russian Federation
7 Article 5.27 of the Code of Administrative Offenses of the Russian Federation
8 Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”.

Comments

06/30/2015 Eugene

And what does the word “REMOVING” mean at the end of some sentences?

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15.07.2015 Vadim Viktorovich

I was suspended from work by order for refusing to work “in slates” (special shoes became unusable), the reason was the engineer’s memorandum, they didn’t take any explanations from me, not statements about the deterioration of the shoes.

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01.12.2015 Vasya

Well done, they broke the law and procedure. A piece of paper to the Commission on labor disputes. And do not forget moral compensation.

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09/03/2015 Alexander

I work at a metallurgical plant. After the accident, in which it was not my fault and nothing to do with it, I was told to write for dismissal on my own. Justifying that I am guilty. I refused to write this document, wrote a letter to the head of the shop, in which I explained that I had nothing to do with the accident and I was not going to write any papers. He told me that he would flunk me with labor protection exams and fire me under the article. I have not passed the third exam, and the last I answered everything correctly. The first time was suspended for 10 days, the second time for a month. The third time again suspended for a month. According to the law, for the third time I was supposed to be sent to the UOC (training and production center). But that doesn't happen. What to do next, and how to prove my case, I do not know.

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09/14/2015 Taras

Good afternoon
The employee was on regular leave, and a court decision was made to dismiss him.
What order should be followed in this case? Is it necessary to recall an employee from vacation, or is it possible to issue a dismissal order and familiarize the employee without recalling from vacation?

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04.10.2015 Karina

Hello!
Tell me, please, how can an employer formalize the suspension of an employee from work by a court decision, if at the time the decision was made the employee was on a business trip? The employee was represented by a lawyer in court.
How to fill in the time sheet in this case? Should an order be issued to recall him from a business trip? Or should I issue an order to suspend the trip? And how later, when, say, an employee is allowed to go to work, can his business trip automatically continue?
Thanks a lot

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11/16/2015 Elena

Hello!!!

Tell me, please, does the manager have the right to suspend him from work if the employee has finished fluorography

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01/13/2016 sergey

I work as a grandfather engineer for water treatment in a water park, the schedule is three days later. The work involves the addition of chlorine and chemicals. In the employment contract, “working conditions” are written: normal. The company has been operating for more than six months.
Approximately a couple of months ago, we were given sizah (closed low shoes with toes, aprons, respirators, glasses, trousers with a jacket), according to the order of the Ministry of Social Development 290n of 06/01/09. And they demand to wear these overalls despite the fact that in the water park itself, where the pools, the air temperature is +34 degrees, humidity is 65% and heated floors, in those rooms it is also at least 25 degrees of heat. At the same time, after 9 months since the opening of the water park, the soot has not been held.
Today, because I refused to wear shoes and pants (in fact, my legs can’t stand walking in these shoes for a day, when the instructors walk in shales on their bare feet, and visitors barefoot on heated floors), I was suspended from work, issuing an order to suspend . And today we got acquainted with the instructions for labor protection when working with chemicals. Despite the fact that I add chemicals only in those water treatment rooms, and it takes a maximum of half an hour out of the day, and the rest of the time I am in the next room behind the wall, where there is only a computer with a table, it is hot and there are no chemicals, and most of the time I walk at the water park with a walkie-talkie, where the heat and humidity.
As I said, the soot has not yet been held, I was familiarized with the instructions on the day the suspension order was issued. SIZs were issued for cross-cutting professions with harmful working conditions, while no compensation for harmful conditions is made to us, and in the employment contract we have “normal” working conditions. And the suspension and explanatory notes are asked to give a violation of shoes and pants for the violation of TB on the 5th, 9th and 13th. And this despite the fact that, according to the appendix to the list of prescribed work clothes, we are not allowed to wear trousers and a jacket at all, and boots and tights are issued in the presence of harmful conditions for which we are not paid and which have not yet been recognized as such, since in violation of the six-month period he not yet carried out by the employer.
Tell me how should I proceed? I requested a copy of the order in writing and I want to write a complaint to the labor inspectorate with a request to check the legality and validity of the order on my suspension from work and to check the legality of the employer's requirements to wear PPE data outdoors with chemicals and my de-bonus by 100%.

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23.02.2016 Ekaterina

The employer forced me to write a letter of resignation of my own free will. After my refusal, all my duties were transferred to another employee, and I was told by the employer that I should no longer perform them until further notice. It was not documented in any way. The instruction came from the immediate supervisor by e-mail. In fact, I was not fired, but deprived of the front of work. How to be in that case?
Thank you.

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03/10/2016 Alice

Good afternoon
After all the necessary steps, the employee was suspended until the time of obtaining a certificate in specialization (we are a state healthcare institution), now the question arose: in the order, the wording of the suspension is “until the issue of obtaining an educational document is resolved”. The next steps taken - the order for admission to work and the order for the direction to study - both on the same day.
So, there were doubts about the order of priority, is it possible to allow an employee to work without an appropriate document for sending for training, or can a suspended employee be sent for training?

Thank you in advance!

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04/30/2016 Sarina

I had a conflict with the guests. I am a barmen. I was suspended from work. I agree. But when I went to the next shift after 5 days, there was a conversation about this with the director. We had a fight, he said he was suspending me for today. At the same time, there was no order for my removal. And the next day I found out that he had already sent me on maternity leave, although I was leaving only after a week. So they didn’t remove my financial responsibility, and when there is a shortage, I have to pay, but they charge us not at the purchase price, but at the retail price. Because of this, I have to sit at work at night for two days to keep an eye on the bar.
Can I complain to the labor inspectorate?

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07/27/2016 Tatyana

Hello!

The sanitary book requires two projections of fluoro. I made one (when I was on sick leave at the ENT forced to do it). The term of this fluorography expires in six months.
Tell me, they can force me to do fluorography in two projections, if the old one is still valid, but in one?
I work as a teacher. Thank you!

Answer

29.07.2016 Igor Mikhailovich

We, the operators of a gas boiler house, which is still under construction. They conclude fixed-term employment contracts with us, at the end of them they are fired and hired again. On June 30, fixed-term contracts became indefinite, but the boiler house was never completed. We do all sorts of side work, hauling rubble and painting pipes ...
This is not the point, two of us did not pass the hot work exam at the GRS, the boss said that we would pass it on later, two weeks passed, the exam was not held, but specifically I wrote an application for another vacation, which I was verbally denied. I wrote an appeal to Rostrud with a request to check on holidays, and then it started ... Up to dismissal with the wording “does not correspond to the position held” ...
On Friday, I told my boss that my back hurts, and I went to the hospital, he did not answer, and then drew up an act of absence from the workplace for more than 4 hours. Now I am on sick leave, they said that they would be fired either due to absence or inconsistency when leaving the sick leave.
How legitimate is this???
Yes, on Friday I didn’t get to the doctor, due to the absence of a doctor, but there is a certificate that I was there, but on sick leave since Monday.

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06.12.2016 alexey

Hello.
Every year I go through a medical commission for weapons. This year, according to the work schedule, I was asked to go through doctors on 11/28? although the certificate valid for the year from the previous year ended on 23.11/ 28 numbers. But the question is not this, but that, going through all the doctors, I had a controversial situation with a psychotherapist, and he obliged me to appear again on December 6th. I came, but he did not sign the documents, but referred me to a neuropsychiatrist. dispensary for examination and reported to work. I was immediately suspended from work, and on the same day I went to the dispensary, where no abnormalities were found. But now I have to go to a psychotherapist again and wait until she signs the documents giving me the right to continue working. But all these days I have been suspended from work, that is, I do not receive a salary.
Is it legal? Is there a chance to challenge the actions of the employer in court, because he actually deliberately later invested in the schedule for the passage of the medical commission, and in the event of such a situation as mine, in fact, suspension immediately followed. What do you advise?

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12/14/2016 Anastasia

Hello!
I work as a trainer-teacher, on November 26 it would have been a year since I did a fluorogram, I had to go back to do it, but on November 22 I went on vacation, and I already did a fluorogram when I came out of vacation. Can they be suspended from work due to overdue days?

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25.12.2016 Alena Sergeevna

Hello,
Tell me please.
At school, 2 employees abuse alcohol, sometimes they even drink right at the workplace, and the director, knowing about this, does nothing, is it possible to somehow punish the director?

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01/23/2017 Alexander

Good afternoon
The driver did not pass the technical minimum under the program for the second time.
Do we have the right to remove him from the post of driver?

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02.02.2017 Victoria

Hello,
if after the order to suspend from work a month later there is an order to dismiss, filling out the work book, do you need to make a record of the suspension?

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16.02.2017 Veronica

I work as a teacher in a kindergarten, I have a medical exemption for the main disease from the flu shot. She was suspended from work on December 28, 2016 during the period of pre-quarantine measures, although in paragraph 4.9. Decree No. 1 of January 10, 2017 of the Chief State Sanitary Doctor for the Tomsk Region, the suspension of unvaccinated personnel of educational institutions was appointed from January 12, 2017. In the payslip for January of this year, 2/3 of the salary was accrued with the wording “payment for downtime for reasons beyond the control of the employer ".
It is not clear how the terms of suspension in the orders of officials are consistent, and why was it called “downtime”? After all, these are different concepts and completely different financial settlements with an employee. It's not the employee's fault either.

Answer

02/28/2017 Veronica

In the comments to the Labor Code of the Russian Federation I read that the vaccination does not apply to a medical examination. Different sources indicate downtime payment “at least 2/3 of the salary” and “2/3 of the salary”. And what is the difference between paying for downtime for a medical exemption for an employee who has contraindications to vaccination and who is not vaccinated at his own responsibility (due to personal convictions)? Why does such a suspension (this year the quarantine lasted more than a month and a half) and payment of downtime at a minimum leave teachers without a livelihood?

Answer

28.02.2017 alexey

Hello!
I was suspended from work due to an expired electrical permit. I work as an electrician, and at the end of November 2016 they went to take it, but I made an extra mistake on the ticket and didn’t pass - I got to retake it! But due to illness, he missed it, as he was on inpatient treatment! Today I went to work for 1 day, and they suspended me, they said that now I have to do it myself at my own expense !!!
Do they have the right to demand this, or should the organization pay for it?

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03/11/2017 Larisa

I work in a large chain supermarket as a cookery seller. On my shift, ready-made cutlets were bought and people were (supposedly) poisoned by them. When examining all the sellers, staphylococcus aureus was found in my nose. Can I be fired because of this?
Got the answer to this question - thanks! There is a continuation of the question ... I am asked by phone to visit the medical laboratory for re-testing ... BUT! Not only from the nose to staphylococcus aureus, but also others! I'm shocked! Are the actions of the employer legal? After that, my blood pressure jumped, and what could be the cardiogram?

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04/20/2017 Leah

Good afternoon.
In the process of passing the medical examination, she broke her toe and went on sick leave. Upon leaving the hospital, she received an order to remove her from work.
Are the management's actions correct?
Thank you for your reply.

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05/05/2017 Marina

Good afternoon

My husband works as a foreman, setting up equipment at enterprises. A fire broke out during welding. He was accused because he is a foreman, and his workers did not comply with fire safety. He was suspended from his job and sent to retake health and safety exams. The order to suspend him from work does not indicate that this period is not paid, but at the end of the month, having received the calculation, he was not paid. Although he was given an advance, and now they are demanding that this advance be returned.

Are the employer's actions legal? Should wages be paid during the period of suspension from work? Throughout this period, the husband is at the workplace and takes exams.

Answer

05/15/2017 Vyacheslav

Good afternoon.
we have an employee in the department who manages off-road motor vehicles (ATVs, snowmobiles - tractor rights, clause 7 of medical certificates). The job description states: "having experience in driving off-road motor vehicles."
Can I require (according to the existing legislation and the validity period of the medical certificate - now issued for 1 year) a medical certificate for the right to drive? Can I suspend an employee from work until this certificate is provided? On the basis of what documents can I do this?

Answer

06/14/2017 Elena

Good afternoon
Tell me, please, is it possible to arrange the next vacation for employees during the period of suspension from work, in accordance with paragraph 2 of Art. 20 196-FZ. Since 06/01/2017, drivers with foreign rights have been suspended. The personnel department sends them from 06/19/2017 on regular vacations.
Is this legal???

Answer

07/05/2017 Anastasia

Hello!
I work in a state institution as the head of a department (100 subordinates). One of the employees took a bribe, and he was fired on his own. desire. Then they told me to write too. I didn't. But when I came to work, they told me verbally that they were removing me from work and transferred to another department.
Are the actions legal? Why can I be fired? Where to apply?

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08/15/2017 Anton

Tell me what to do?
Suspended from work for a month due to a personal conflict with another person, there was no order, nothing, just in words.

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09/08/2017 Svetlana

Hello.
A foreign worker has run out of a work patent and needs time to make a new one.
How to issue his suspension for this period?

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09/28/2017 Anna

Good afternoon

Tell me, I work as a labor protection specialist in a construction organization. The company is new. Before me, there was no specialist in this area. People have been working at the facility for about a year. No honey. They don't have inspections. I drew up an order, the head approved it, gave directions to honey. inspections, as our work is of increased danger (at height, etc.). The foreman does not send people for inspections. I wrote an order - no result.
What report can I send to the director to influence this situation? It’s not for me to lead them by the hand)
Thank you in advance.

Answer

09.10.2017 Nina

Good afternoon

Today, doctors did not allow her husband to go to work due to medical indications: a disease that does not allow him to drive. Tomorrow he goes to the authorities.
What should we expect? Can be fired, then what will they write in the labor? Or offer, for example, to be a mechanic, but he is a driver, how to be?
I would like to receive an urgent answer, thanks in advance!
Regards, Nina.

Answer

10/18/2017 Irina

Good afternoon everyone.
Tell me if the narcologist removed the employee (there is a certificate). This worker was caught drunk by the police (more than once) and for the last time passed an examination and received such a certificate (the police called a narcologist). Help came accordingly to the security of our organization. I work as the head of the SOT and I believe that an order for suspension is being written on my part, and after 3 months (such a period) I send the employee to a narcologist for a second certificate and admission to work.
Tell me right or not?

Answer

01/08/2018 Artem

Hello!
At work, I got injured at work, before the ambulance arrived, the boss threatened me, they say, if you don’t write in your own way, we’ll fire you under the article. Then he took my pass! When I was brought to take the first sick leave, the security did not let me through the checkpoint, in order to give the sick leave, the secretary came to me ... I am still on sick leave, they don’t let me into the factory, even to my booth! Do they have the right to do so? What am I supposed to do?

Answer

01/23/2018 lyudmila

Having studied the Order of the Ministry of Health of the Russian Federation of April 12, 2011 No. 302n, I had a question. Is it necessary, under acceptable class 2 working conditions, for an employee more than 50% spent at the computer at the workplace, to undergo a medical examination?
Can I be suspended from work for refusing to pass a medical examination?

Answer

01/23/2018 lyudmila

In order to claim that I need a medical examination, there must be a conclusion of attestation of workplaces, which recognizes that some of these places have occupational hazards. And only employees of these places must undergo a medical examination. Employees of those jobs that will not be recognized as harmful should not undergo any medical examination at all. Why then can they still be removed under Article 76?

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01/30/2018 Svetlana

Good afternoon,
tell me if I can sue and get my job back after suspension. Situation: I worked as an accountant at SNT, after the change of chairman, they removed me, fabricating the results of the audit and so on. The investigation has been going on since October 2015.
The civil process began in 2016 and lasted until November 2017, the court decision will be made by February 5, 2018. As a result, I was found not guilty.
Question: Can I receive compensation for the time of forced absence from work and compensation for moral damage (for honor and dignity)?

Answer

06/04/2018 Alexander

Good evening,
my employee (driver) refused to continue working, saying that he did not want to work, and left. How to be? I didn’t write a statement of my own free will, I didn’t bring labor. To requests to come (orally) and quit, he always excuses himself - yes, yes, yes, I will come ....
The employment contract is part of it for me. How to fire him???
Thank you.

Answer

07/23/2018 Taalay

How to dismiss an employee if there is a shortage of property entrusted to the employee on a large scale?

Answer

08/02/2018 Seryoga

Answer

08/13/2018 Ruslan

Hello.
On suspicion of the employee in the theft of the owner's property, a criminal case was initiated.
Based on the employer's statement, the investigating authority issued an order to remove the employee from his position until the circumstances were clarified.
At the moment, the employee wrote a letter of resignation of his own free will.
Does an employer have the right to refuse dismissal? If yes, for what reasons?
The employee is not a MOL.
Thanks in advance for your reply.

Answer

12.10.2018 Ekaterina

Hello!
I work at a school as a nutritionist. My responsibilities include monitoring the quality of the services provided by the food processing plant. During the internal audit, violations were revealed, such as the unsatisfactory sanitary condition of the canteen, broken scales, and underdelivery of products. For all these violations, I did not draw up claim acts on time. For this, the principal of the school demanded that I resign. I refused to write it, and I was suspended from work indefinitely. He was not listed in the order. Can I get fired at all? I am the mother of a disabled child and, in addition, I am a member of the election commission for a period of 5 years.
Thank you in advance.

Answer

24.10.2018 Taalay

Hello!
Some employees of our institution have little work in winter, for example, a forester (huntsman), at present, according to the staffing table, they have a five-day work week with two days off.
Question: Is it possible to transfer foresters part-time in winter (November, December, January, February)? The order of transfer, labor leave, then how is it paid? What to do?

Answer

11/01/2018 Reggie

Good day.

She was supposed to return to work after parental leave, but she went on sick leave (the injury was received earlier, but she did not open sick leave). Was notified by the employer about the need to undergo a medical examination (I work as an administrator in a medical center). However, the medical examination did not pass, she warned me about going to the hospital. Despite the warning by phone, on the first working day, the employer requested (by letter via courier) an explanation for absenteeism. An explanatory note was sent indicating that by phone call she notified about the sick leave (indicating who the conversation was with from the personnel department).
Is it possible for the employer to issue a suspension from work, referring to the failure to pass a medical examination? Are we challenging this in court?

Answer

06.11.2018 Andrey

Hello,
I was first suspended and then fired, can I get a certificate of employment?

Answer

11/17/2018 Vladimir

Good afternoon.
On September 11, an operation was performed, the meniscus of the knee joint. On October 23, he left the hospital, the surgeon gave a certificate for light work for 3 months. On October 29, I wrote an application for transfer to a position suitable for me for the duration of the certificate, and from lunch on October 29 I already got acquainted with the order that I was suspended for the entire period of the certificate for the duration of the certificate with the preservation of the position and without payment of salary. I have a minor child and a mortgage.
Did the employer have the right to do so?

Answer

03.12.2018 Nina

Good afternoon
I need to undergo a medical examination of the child before school, including a cardiogram and an ultrasound of the heart.
Can you please tell me if I have to write a day without pay to pass all the doctors or can I provide supporting documents from the hospital and not write a day without pay?

Answer

02/16/2019 Irina

Hello. Tell me, please, does a lawyer have the right to suspend a medical worker from work if the personnel department missed the certification of a specialist through their own fault, but they are not suspended from work, and they agree that the employee works until the next study. The study will be only in August, and before that you will have to sit without wages. What to do next?

Answer