DISMISSAL BY EMPLOYERS:
SOME ISSUES TO CONSIDER
Ekaterina Mironova
St. Petersburg
25 October 2012
In this Presentation
• Dismissing employees:
– For a disclosure of legally protected secrets
– For a loss of trust and confidence
– For a failure to pass probation
Disclosure of Legally Protected Secrets
• Employment contracts may be terminated by employers
if an employee commits a gross breach of his/her job
duties, including the disclosure of a legally protected
secret (state, trade, service, or otherwise) of which the
employee became aware during the performance of
his/her job duties, including the disclosure of the
personal data of another employee (sub-clause in clause
6, article 81 of the Labor Code of the Russian
Federation)
Disclosure of Legally Protected Secrets
• It is only possible to terminate an employment contract
under these grounds if the following factors are met:
– A legally protected secret is disclosed
– The employee became aware of the secret during/in connection
with the performance of his/her job duties
Disclosure of Legally Protected Secrets
• Disclosure = action or omission which results in a trade
secret becoming known (verbally, in writing,
electronically, etc.) to any third party without the consent
of the legal holder of that information or contrary to an
employment or civil agreement
Disclosure of Legally Protected Secrets
• Only possible if disclosure of legally protected:
–
–
–
–
–
–
State secret
Trade secret
Personal data
Tax secret
Banking secret
Etc.
Disclosure of Legally Protected Secrets –
Example: Trade Secrets
• Trade secret regulations must be introduced and
confidentiality undertakings must be established in labor
relations:
–
–
–
–
–
–
Order to set trade secret regulations with a list of trade secrets
attached
Trade secret regulations
List of employees who need access to trade secrets to perform their
job duties, keeping a register of these employees, including related
provisions in employment contracts
Receiving signatures from employees that they have reviewed and
are familiar with the list of trade secrets and the Trade Secret
Regulations
Labeling trade secrets as established by law on tangible mediums
Employers must give employees the conditions required to observe
trade secret regulations.
Disclosure of Legally Protected Secrets
• Recommendations
– Formal legal requirements on the protection of secrets (e.g.,
establishing trade secret regulations, performing legal
requirements on the processing of personal data)
– Establishing which employees have access to secrets and nondisclosure undertakings in employment contracts
– Accurately describing employees’ job duties in job descriptions
Loss of Trust and Confidence
• Employment contracts may be terminated by employers
if an employee dealing directly with money or
merchandise commits culpable actions if those actions
serve as grounds for a loss of the employer’s trust and
confidence in the employee (clause 7, article 81 of the
Labor Code of the Russian Federation)
Loss of Trust and Confidence
• It is only possible to terminate an employment contract
due to a loss of trust and confidence if the following
factors are met:
– The employee must directly deal with money or merchandise
– The culpable actions must give the employer grounds to lose
trust and confidence in the employee
•
NB! The Supreme Court of the Russian Federation has ruled that if
a court has given a verdict about theft, corrupt practices, or other
self-interested infractions, the employee may be dismissed under
these grounds even when those actions are not connected with the
employee’s employment
Loss of Trust and Confidence
• Employees directly dealing with money or merchandise = materially
liable employees (i.e., employees accountable for assets)
• Question: Can an agreement on full material liability count as proof
that an employee deals directly with money or merchandise?
–
–
Answer: not always, only if the employee’s position or work category is
stated in a list approved by the Ministry of Labor and Social Policy
Example: it is not possible to dismiss a chief accountant on these grounds
• Question: Can you dismiss an employee under these grounds if
his/her position or work category is included on the list but no
material liability agreement has been executed?
–
Answer: yes, it is possible to dismiss an employee under these grounds
Loss of Trust and Confidence
• Question: it is possible to dismiss an employee under
these grounds if his/her position or work category is not
included on the list, but an agreement on full material
liability has been executed?
– Answer: no, it is not possible to dismiss an employee in these
cases.
Loss of Trust and Confidence
• Grounds for dismissal: only culpable actions giving an
employer grounds to lose trust and confidence in the
employee
–
“Trust and confidence” may be defined in the employee’s job
description and in an agreement on full material liability
• Examples of culpable actions which may serve as grounds for
a loss of trust and confidence:
–
–
–
–
Violations in cash policies
Violations of internal, regulatory documents setting the method in
which money and merchandise are handed out
Selling goods at a higher/lower price than set
Theft, loss, or destruction of merchandise or money given to the
employee - even without a court ruling.
• Actions which could cause harm could also serve as grounds
for a loss of trust and confidence
Loss of Trust and Confidence
• Recommendations:
– Execute agreements on material liability in all possible cases
(according to the Labor Code of the Russian Federation)
– Clearly establish the employee’s obligations in dealing directly
with merchandise and money in his/her job description
– Conduct internal audits and audits on a regular basis
Failure to Pass Probationary Period:
Dismissal Procedure
• When hiring an employee:
–
–
Establish terms on a probationary period in the employment
contract
Clearly establish the employee’s job duties, evaluation criteria, and
knowledge and skills which he/she must have in his/her job
description
• During probationary period:
–
–
–
Direct supervisor should work closely with the employee, ideally by
issuing instructions in and reports writing (with attached supporting
documents)
“Documenting” any cases in which the employee fails to properly
perform his/her job duties, including by taking disciplinary measures
Notifying the employee in writing and requesting responses in
writing on any cases in which the employee fails to perform his/her
job duties
Failure to Pass Probationary Period:
Dismissal Procedure
• If results are unsatisfactory:
– Notification must be in writing
– Notification must be given at least 3 days before the end of the
probationary period
– Notification must state the reasons for which the employee has
failed to pass probation (without such reasons this may be
overturned)
• Please note:
– It is not possible to dismiss an employee on temporary disability
or on vacation (these periods do not count as part of the
probationary period)
Copenhagen
Moscow
Amaliegade 15
1256 Copenhagen K, Denmark
Telephone: +45 33 149 400
Telefax: +45 33 149 401
[email protected]
33 Schepkina Street
129090 Moscow, Russian Federation
Telephone: + 7 495 662 64 34
Telefax: + 7 495 662 64 36
[email protected]
Helsinki
St. Petersburg
Eteläranta 8 / P.O. Box 333
00130 / 00131 Helsinki, Finland
Telephone: +358 9 228 841
Telefax: +358 9 177 393
[email protected]
62 Nevsky Pr.
191011 St. Petersburg, Russian Federation
Telephone: +7 812 363 3377
Telefax: +7 812 363 3388
[email protected]
Stockholm
Kungsträdgårdsgatan 20/ P.O. Box 7801
SE-111 47 / SE-103 96 Stockholm, Sweden
Telephone: +46 760 000 000
Telefax: +46 8 679 85 11
[email protected]
www.hannessnellman.com