Disqualification or Other Administrative Penalty as a Basis for Termination of an Employment Contract

Abstract

In the practice of labor relations, it is difficult to terminate the employment contract due to the application of administrative punishment to the employee, which excludes the possibility of fulfilling his duties under the employment contract. In the Labor Code of the Russian Federation, the types of such administrative punishments are not clearly defined. Only disqualification is directly named, and for other types, the criterion for their attribution to the grounds for termination of the employment contract is the legal consequence expressed in the absence of the possibility of the employee continuing the work provided for by the employment contract. At the same time, in practice, problems arise due to the fact that the application of administrative punishment is imposed automatically and does not terminate labor relations. The author considers disqualification, notes the peculiarities of the subjects to whom this administrative punishment can be applied, as well as exclusively the judicial procedure for its application. Certain discrepancies in the regulation of disqualification as the basis for the termination of contractual relations in labor and service legislation are highlighted. At the same time, the presumption of voluntary execution of disqualification, laid down in the legislation on administrative offenses, conflicts with the provisions on recognizing disqualification as a fact that does not depend on the will of the parties, in labor legislation and legislation on the state civil service, as well as the basis for terminating the employment contract at the behest of the employer’s representative in the legislation on municipal service. The mechanism ensuring the execution of the disqualification is administrative responsibility for the disqualified person’s activities to manage a legal entity. However, the Labor Code of the Russian Federation does not classify the disqualified as persons with whom an employment contract cannot be concluded. The author refers to other types of administrative penalties, the application of which may be the basis for terminating the employment contract, administrative expulsion from the Russian Federation and administrative arrest. It is concluded that it is advisable to specify in labor legislation all types of administrative punishments that exclude the possibility of continuing labor relations.