We disassemble the case: You can not fire chat
Recently, several stories have thundered about the dismissal of employees for the use of social networks (the most striking, perhaps, about the creation of closed groups).
The appearance of such messages is always dangerous - in any case they will not tell the whole situation, and some of the employers will also follow this path and, possibly, face lawsuits from employees. On the other hand, activity in social networks can not only distract from work, but also harm the company's reputation.
It's time to answer the main question of all employers in the country: And what could have been so?
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It should be understood that there is no separate article “toshoot fired for using social networks”.
Therefore, the stories about the dismissal of the whole team for such a misconduct legally look somewhat different (do not rush to threaten your employees with a quick reprisal).
It is possible to dismiss an employee only subject to the provisions of the Labor Code. And this set of laws states that the dismissal on the initiative of the employer is possible only on the grounds listed in art. 81 of the Labor Code of the Russian Federation.
Clause 5 Part 1 of this article fits this case, according to which the employer has the right to terminate the employment contract in the event of an employee’s repeated failure to fulfill his labor duties without good reason, if he has a disciplinary penalty.
Thus, it is important to establish the fact whether excessive activity in social networks is a violation of job duties (and here job instructions and regulations will be extremely useful to us).
The key factor will be “working time”, which means that the use of social networks during the break and before / after the working day does not count (of course, if you are not a judge or a civil servant who has to keep track of his moral character).
An additional stone in the worker's garden will be access to the social networks through work computers / phones / iPads / iPhones. In this case, a person can be brought to disciplinary responsibility (Art. 192, 193 of the Labor Code of the Russian Federation).
The fact that employees use for personal purposes programs designed to fulfill their job duties must be recorded by an act (subparagraph 1, paragraph 34 of the Resolution of the Plenum of the Supreme Court No. 2).
Here clearly prescribed procedures for the use of working equipment will be extremely useful.
First of all, it is necessary to describe in detail the rights and obligations of employees in corporate regulations. This means that you should have not only an employment contract with general formulations, but also internal work regulations, job description.
It may be worthwhile to create a separate provision for the use of social networks and personal mail during business hours (but this is for the most advanced and intolerant of personal correspondence during business hours).
Only such a detailed and strict regulation will allow to prove that the employee violated his official duties.
There are very few such cases in court and there is simply no reason for uniform practice. Nonetheless, things are emerging that indicate a growing problem.
For example, a court considered a case of unlawful dismissal for correspondence during working hours. True, the correspondence was not conducted in social networks, but by e-mail, but an open personal mail window was recorded during business hours.
The court took the side of the worker and indicated among the grounds (besides the past term, the application of a penalty) that the gravity of the offense did not correspond to the penalty imposed. In other words, aperson who once lied, who has been lying for personal reasons, cannot be dismissed (Determination in case No. 33-5891 / 2014 of December 4, 2014, the Supreme Court of the Komi Republic).
In another similar case, the court considered the legality of dismissing a Russian teacher to conduct tactless correspondence with students through a social network.
By tactless correspondence, the court understands the use of words affecting the personality of the student and his relatives. At the same time, the court indicated that only this circumstance did not constitute grounds for dismissal (but in fact was considered as circumstances characterizing the employee’s identity) (Determination in case No. 33-878 / 2012 of 17.04.2012. The Supreme Court of the Republic of Dagestan).
Similar cases of dismissal are known, only the personality of the employee characterized his photo or video in social networks.
It turns out that the activity in social networks can be a reason for dismissal, but this is not easy. This will require:
REMEMBER! The risk of meeting the worker in court and losing him remains. For example, in case of violation of the procedure for dismissal or disproportion of punishment.
The appearance of such messages is always dangerous - in any case they will not tell the whole situation, and some of the employers will also follow this path and, possibly, face lawsuits from employees. On the other hand, activity in social networks can not only distract from work, but also harm the company's reputation.
It's time to answer the main question of all employers in the country: And what could have been so?
')
So why dismiss?
It should be understood that there is no separate article “to
Therefore, the stories about the dismissal of the whole team for such a misconduct legally look somewhat different (do not rush to threaten your employees with a quick reprisal).
It is possible to dismiss an employee only subject to the provisions of the Labor Code. And this set of laws states that the dismissal on the initiative of the employer is possible only on the grounds listed in art. 81 of the Labor Code of the Russian Federation.
Clause 5 Part 1 of this article fits this case, according to which the employer has the right to terminate the employment contract in the event of an employee’s repeated failure to fulfill his labor duties without good reason, if he has a disciplinary penalty.
Thus, it is important to establish the fact whether excessive activity in social networks is a violation of job duties (and here job instructions and regulations will be extremely useful to us).
The key factor will be “working time”, which means that the use of social networks during the break and before / after the working day does not count (of course, if you are not a judge or a civil servant who has to keep track of his moral character).
An additional stone in the worker's garden will be access to the social networks through work computers / phones / iPads / iPhones. In this case, a person can be brought to disciplinary responsibility (Art. 192, 193 of the Labor Code of the Russian Federation).
The fact that employees use for personal purposes programs designed to fulfill their job duties must be recorded by an act (subparagraph 1, paragraph 34 of the Resolution of the Plenum of the Supreme Court No. 2).
Here clearly prescribed procedures for the use of working equipment will be extremely useful.
Internal documents
First of all, it is necessary to describe in detail the rights and obligations of employees in corporate regulations. This means that you should have not only an employment contract with general formulations, but also internal work regulations, job description.
It may be worthwhile to create a separate provision for the use of social networks and personal mail during business hours (but this is for the most advanced and intolerant of personal correspondence during business hours).
Only such a detailed and strict regulation will allow to prove that the employee violated his official duties.
Arbitrage practice
There are very few such cases in court and there is simply no reason for uniform practice. Nonetheless, things are emerging that indicate a growing problem.
For example, a court considered a case of unlawful dismissal for correspondence during working hours. True, the correspondence was not conducted in social networks, but by e-mail, but an open personal mail window was recorded during business hours.
The court took the side of the worker and indicated among the grounds (besides the past term, the application of a penalty) that the gravity of the offense did not correspond to the penalty imposed. In other words, a
In another similar case, the court considered the legality of dismissing a Russian teacher to conduct tactless correspondence with students through a social network.
By tactless correspondence, the court understands the use of words affecting the personality of the student and his relatives. At the same time, the court indicated that only this circumstance did not constitute grounds for dismissal (but in fact was considered as circumstances characterizing the employee’s identity) (Determination in case No. 33-878 / 2012 of 17.04.2012. The Supreme Court of the Republic of Dagestan).
Similar cases of dismissal are known, only the personality of the employee characterized his photo or video in social networks.
It turns out that the activity in social networks can be a reason for dismissal, but this is not easy. This will require:
- to detail the internal regulations;
- fix the violation;
- there must be a repeated violation of labor discipline and penalties not taken.
REMEMBER! The risk of meeting the worker in court and losing him remains. For example, in case of violation of the procedure for dismissal or disproportion of punishment.
Source: https://habr.com/ru/post/298996/
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