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Dismissal at the initiative of the employee ("at his own request"). The procedure for dismissal at the initiative of the employee

One of the commonly used types of termination labor relations dismissal is considered at the initiative of the employee, which is regulated by paragraph 3 of part 1 of Art. 77 and Art. 80 of the Labor Code of the Russian Federation. Many nuances that arise in the dismissal procedure require a more detailed consideration of this method of termination. employment contract.

What regulates the dismissal at the initiative of the employee

Termination of an employment contract- this is a recorded event indicating the end of the relationship between the employee and the employer in the field of work. An employee completely stops working, in contrast, for example, to a temporary termination of duties due to going on vacation without pay. That is, the termination of the employment contract means the dismissal of the employee.

An employment contract can be terminated when there are sufficient grounds provided for in existing laws. An exhaustive list of such grounds, as well as a regulated procedure for dismissal, are the most important guarantee of the right of any person to work.

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The most common general grounds for terminating an employment contract dismissal at the initiative of the employee is considered. This basis is enshrined in paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

Consider next few important points legal regulation dismissal of an employee own will :

It is not so important what kind of contract is concluded with the employee: urgent or on a permanent basis, in any case, he has the right to terminate it.

Earlier in the Labor Code of the Russian Federation, Article 31 provided for some prohibitions on the termination of fixed-term contracts, in the modern Labor Code of the Russian Federation there are no restrictions on dismissal at the initiative of an employee. If suddenly your organization has labor fixed-term contracts, which were concluded before February 2002, and they still contain prohibitions on termination of labor relations at the will of the employee, they urgently need to be amended. Also, all local regulations of the company containing the above restrictions are subject to changes.

The employer should not forget about the rules of Article 8 of the Labor Code of the Russian Federation, which clearly states that if local regulations worsen the position of employees, then such acts should not be applied by the company. Important are the norms of Part 2 of Article 9 of the Labor Code of the Russian Federation, which states that the requirements of an employment contract cannot restrict the rights of employees or lower the level of their guarantees compared to current legislation about labor.

For a long time, the controversial issue among personnel officers did not subside, which article of the Labor Code of the Russian Federation to refer to when dismissing at the initiative of an employee in orders, as well as in work books. There were two options: p. 3, part 1, art. 77 and Art. 80. All doubts were resolved by the Government of the Russian Federation in favor of the first option.

On April 30, 2004, the “Rules for maintaining work books” came into force, in paragraph 15 of which it is clearly stated that, for the reasons provided for by Article 77 of the Labor Code of the Russian Federation, a note on the termination of an employment contract is entered in work book with a footnote to the appropriate paragraph of the first part of article 77. But dismissal at the initiative of the employer (clause 4, part 1, article 77 of the Labor Code of the Russian Federation) and dismissal due to circumstances that do not depend on the will of the parties to the employment relationship (clause 10, part 1, art. 77 of the Labor Code of the Russian Federation), became exceptions to this rule. That is, in addition to the Labor Code of the Russian Federation, it is necessary to study a lot of regulations that will help you see the picture of labor legislation as a whole.

Dismissal of one's own free will: rules and "pitfalls"

Rules and procedure for dismissal at the initiative of the employee

If the employee has finally decided to leave the company, then only by submitting a written application that clearly and clearly expresses his will to quit, the employer will be able to terminate the employment contract with him. Such a statement is written in any form, in the form of a simple letter of request, and in the form of a telegram filed from the place of vacation. That is, the employee must be sure that his application has been sent and received by the employer. To do this, he can independently register an application with the company secretary or send it by registered mail with notice. There are no other ways, except to express your will in a written statement, proving the employee’s desire to quit.

Resignation letter

Where does the employee need to start if he independently decided to quit? The dismissal procedure at the initiative of the employee always begins with a written application, the mandatory attributes of which are:

position and surname, name, patronymic of the employee;
indication of the date of the last working day, that is, dismissal;
prescribing the grounds for dismissal - "at the initiative of the employee";
indication of the date of writing the application.

There is no specific fixed unified application form; it is written in free form in the name of the general director of the enterprise and signed by the resigning employee with his own hand.

Strive to ensure that employees formulate the statement accurately. If a personnel officer believes that the application is written incorrectly, then, on his strong recommendation, it is better for the employee to rewrite the application. After reading the text of the application, an unambiguous conclusion must be made - the employee expresses his will to terminate the employment relationship, otherwise the dismissal may be declared illegal through the courts. Recognition of the dismissal as illegal may entail the reinstatement of the employee in his former workplace.

Term and date of dismissal

The legislation of the Russian Federation regulates the terms of dismissal in the Labor Code. It is the Labor Code of the Russian Federation that regulates the specific deadlines for submitting an application by an employee, so he must notify the employer of the planned dismissal no later than 14 days before the date of termination of the employment contract. These two weeks begin to flow the next day after the day of registration of the letter of resignation at the initiative of the employee. But there are a number of exceptions to this rule.

For example, for the head of an enterprise, a period of 1 (one) month is set, and for employees on a probationary period, as well as employees hired for a certain season or for a period of up to 2 (two) months, no later than 3 (three) days.

The employee may not comply with the two-week deadline and independently write in the application the expected date of dismissal, in case of:

if the dismissal of an employee is directly related to the violation of labor laws by him. Such an offense must be recorded by the commission on labor disputes, the judiciary, labor inspectorate or trade union bodies;
if the dismissal is related to the inability to continue to perform labor duties in connection with retirement or admission to educational institution etc.

Increasingly, there are cases when the employer and employee no longer oppose early date layoffs. Having agreed on the day of dismissal, you can terminate the employment contract without working out the prescribed 14 days.

An employee can submit a personal application, both while on vacation and on sick leave, but one must not forget to respect the 14-day period for notifying his employer.

Often, when forming a letter of resignation at the initiative of an employee, the resigning employee does not prescribe the number of termination of the contract. In this case, the employer affixes a visa indicating the dismissal of the employee after two weeks from the date of registration of his application. We strongly suggest that you ask the employee to express his will in a statement indicating the specific date of his dismissal. An accurately written date of dismissal will eliminate misunderstandings between the employer and the resigning employee.

The personnel service does not have the right to dismiss an employee earlier than the date written in the application.

The order on personnel must be issued in the form T-8. In the line of the grounds for dismissal, you should indicate “of your own free will” and at the same time be sure to add a reference to paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation. It is important to familiarize the employee with the dismissal order at the initiative of the employee against signature. If he does not want to get acquainted with the order, a special note is made about this.
The specialist of the personnel department is obliged to enter a record of dismissal in the work book of the resigning employee. It is extremely important to provide a work book to an employee on his last working day. But if it is not possible to return the book, then notify the employee by letter of the need to appear for it or get permission to send it by mail. By following these simple recommendations, you will relieve yourself of responsibility for non-compliance with the legal deadlines for issuing a work book.
Calculate the salary with the employee by making a note-calculation (form T-61).
An entry is made in the employee’s personal card, drawn up by the personnel department in the T-2 form, about the termination of the employment relationship, indicating the grounds for dismissal at the initiative of the employee. In the personal card, the employee also affixes his introductory signature.
In addition to the work book, the employee must be given: copies of orders for hiring, transfers, dismissal; a salary certificate, a 2-NDFL certificate and other documents necessary for a retiring employee on his personal application submitted to the employer in advance.

Employee Debt

The head of the enterprise should not use any debts of the employee as an obstacle to dismissal. Any debts former employee can be recovered through the courts. More likely to win a lawsuit with an employer who has been assigned the status of a financially responsible person.

Transfer of cases before dismissal to another employee

Make sure that the local regulations of the company and employment contracts with employees contain a rule for the mandatory transfer of cases of a leaving employee. Failing to comply with the transfer requirement, the departing employee may receive disciplinary action, which, in turn, cannot become an obstacle to dismissal at the initiative of the employee.

If an employee changes their mind

During the 14 days worked out, the employee can write a withdrawal of the application, but at the same time it must be registered and provided to the employer. When an employee expresses a desire to first go on vacation and then be fired, he can withdraw this application only before the start of the vacation period.

What should an employer do if an employee suddenly changes his mind about quitting? The dismissal will be carried out when another specialist has already been invited to the place of the employee who changed his mind about resigning, to whom the company cannot refuse to hire (for example, if he was invited by transfer from another employer). If the date of dismissal has come up, and the employer has not terminated the employment contract and the employee continues to perform his job duties, then in fact the employment relationship continues. In this case, additional documents will not be required.

Dismissal under the article: how to apply tough measures to the guilty

Expert opinion

It's not always about money

Vadim Galtsov,

General Director of Gicom, Krasnodar

Often, employees who want to quit of their own free will subjectively perceive the current situation in the company. Someone does not like the team, someone evaluates his work, someone wages.

It is necessary to talk with your employees, ask what does not suit them, listen to suggestions for correcting this or that situation. Be interested in each employee, show your desire to help and understand their problems. Try to offer the employee options for getting out of the current circumstances, help him fulfill himself in the company. A conversation with management is sometimes so effective that the employee changes his mind to leave the company, and the employer gains invaluable experience in communicating with his subordinate. Let's look at an example. A couple of years ago, a senior manager at our company expressed his desire to quit. I didn't want to lose valuable employee, changed the plans of the working day and called him for a conversation. At the very beginning of the conversation, I found out that the main reason for dismissal at the initiative of the employee is the salary that does not satisfy him. But upon closer examination of the problem, it turned out that the specialist was primarily dissatisfied with the company's document flow, namely, that the delay in documents hinders the provision of quality services to customers and, accordingly, increases the profitability of the enterprise. During the discussion, we found several acceptable options for a way out of this situation. As a result, as a manager, I was able to see the current situation with document flow, helped return a valuable employee, and also considered career development opportunities this employee in company.

Dismissal at the initiative of the employee: own desire in a properly executed application

We will consider the requirements for filling out a letter of resignation at the initiative of the employee (sample is attached), despite the fact that the legislation does not unified form such a statement.

As a general rule, the application must be written on A4 sheets and addressed to the head of the company.

Regarding the date, then it is not necessary to comply with the minimum period for submitting an application given by law, you can submit it both in a month and in two months.

The day an employee leaves is their last day. labor activity. Therefore, when writing the date of the last working day in the application for dismissal at the initiative of the employee, it is important not to use the preposition “from”, that is, you cannot write “please fire me from February 15, 2017”, but you need to write “please fire me on February 15, 2017” . If in the application the preposition “from” is in front of the desired date of dismissal, then the date of dismissal can be disputed by the parties to the employment relationship. By submitting a well-formed application to the employer, the employee will be able to avoid misunderstandings related to the interpretation of the date of dismissal.

Grounds for dismissal of an employee: what to look for

Compensation and payments upon dismissal at the initiative of the employee

Whatever the reason for the dismissal, the employer is obliged to the resigning employee to pay all payments due to him. The Labor Code of the Russian Federation fixes the conditions and procedure for paying all types of compensation that must be paid to an employee upon dismissal. Let us dwell in more detail on the payments due to the resigning employee.

When an employee terminates an employment relationship must be paid:

salary for actual hours worked;
severance pay(cases determined by labor laws);
monetary compensation for unused days holidays.

Payment of wages

Employees who decide to quit must be paid on time, in accordance with Article 140 of the Labor Code of the Russian Federation, that is, no later than the date of dismissal. If the dismissed employee did not work on his last working day, then all payments must be transferred no later than the day following the submission of the final settlement request to them. If there is a dispute between the parties to the employment relationship over the amount due to the employee upon dismissal, then the employer is obliged to pay at least that part of the money that he does not dispute.

The salary must be paid to the employee for the time actually worked in the month of dismissal, namely: salary, bonuses, allowances, bonuses.

Compensation for unused vacations

According to the Labor Code of the Russian Federation, dismissal at the initiative of the employee entails the obligation of the employer to pay monetary compensation for all days of vacation (holidays) not used by the employee. Instead of monetary compensation upon dismissal, the employee has the right to indicate in the application his desire to go on vacation with subsequent dismissal. The last day of vacation will be the day of dismissal. The issuance of a work book and the payment of all amounts due to the employee must be carried out immediately before he goes on vacation. If an employee falls ill during a vacation, he is paid temporary disability benefits, but the vacation is not extended by the number of sick leave days.

Leave before dismissal is not granted if the termination of the employment contract is associated with the implementation of guilty actions on the part of the employee.

The employer must remember and comply with the rules of Article 124 of the Labor Code of the Russian Federation, which contains a direct ban on not providing employees with annual leave for two consecutive years. If an employee of your company has not been on vacation for more than two years in a row, you will have to make strong arguments in your defense before the inspection authorities. Such a good reason will be recognized as the postponement of the leave at the written request of the employee to another working year.

The calculation of the number of days to be paid by the employer depends on the number of months worked during the working year. The period from which the employee's vacation is calculated will begin from the day and month in which he actually started work, and not from January 1 of the calendar year.

If an employee who expressed a desire to quit did not work for a period that gives him the right to compensation for vacation in full, then monetary compensation should be paid in proportion to the days of vacation only for the months worked. If the month worked by an employee is less than half, then it should not be taken into account when calculating compensation. A month in which an employee has worked more than half of it is counted as a whole month.

There are cases when, on the date of dismissal, it turns out that an employee has taken vacation in advance for an incompletely worked year, then the amount of money overpaid for unworked vacation days is withheld from the employee’s salary (Article 137 of the Labor Code of the Russian Federation).

No retention when an employee leaves due to:

clause 1 of article 81 of the Labor Code of the Russian Federation - liquidation of a company or termination of business by an employer who is individual;
clause 2 of article 81 of the Labor Code of the Russian Federation - reduction in the staff or number of employees of the company;
sub. "a" paragraph 3 of Article 81 of the Labor Code of the Russian Federation - the employee does not correspond to his position or the activities he performs due to his state of health on the basis of a medical report;
Clause 4 of Article 81 of the Labor Code of the Russian Federation - change of ownership of the company's property. On this basis, the director, deputy directors, Chief Accountant;
Clause 1 of Article 83 of the Labor Code of the Russian Federation - conscription of a company employee to the army or to an alternative civil service;
clause 2 of article 83 of the Labor Code of the Russian Federation - reinstatement of an employee in accordance with a court decision or state inspection by labor;
clause 5 of article 83 of the Labor Code of the Russian Federation - according to a medical report, which recognized the employee as completely incompetent;
clause 6 of article 83 of the Labor Code of the Russian Federation - as a result of the death of an employee or employer who is an individual, as well as when these persons are recognized by the court as missing or dead;
Clause 7 of Article 83 of the Labor Code of the Russian Federation - the onset of such emergency circumstances as: catastrophes, major accidents, natural disasters, hostilities, epidemics, etc., which prevent the further operation of the employment contract. In this case, a circumstance is recognized as an emergency only by a decision of the Government of the Russian Federation or government agency subject of the Russian Federation.

Article 139 of the Labor Code of the Russian Federation regulates the calculation of the average daily wage.

On the day of dismissal, the employee must pay severance pay. Article 178 of the Labor Code of the Russian Federation provides that the provisions of an employment contract or a collective agreement may also provide for other cases of payment of severance pay and even establish their increased amounts.

Based on Article 139 of the Labor Code of the Russian Federation, the calculation of the average salary of an employee should be made according to the actually accrued earnings and the hours actually worked for the twelve months that preceded the day of payment. The collective agreement may also provide for other periods for calculating the average salary, but only if this does not worsen the position of the employee.

The amount of severance pay can be calculated as follows: the average daily wage is multiplied by the number of working days of a five-day or six-day working week, which fall on the first calendar month from the moment of dismissal, while holidays are not taken into account.

What you need to know about early dismissal by agreement of the parties at the initiative of the employee

If the parties to the employment relationship were able to agree, then the dismissal at the initiative of the employee can be made before the end of the period established by law.

Agreement of the parties as the basis for termination of the employment contract used when the parties mutually decided to terminate the employment relationship with each other. If an agreement is reached between the employer and his employee to terminate the employment contract, then neither party will be able to revoke it unilaterally.

An agreement can be canceled only with the mutual consent of the parties to the employment relationship (clause 20 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004).

If the employee himself expressed a desire to terminate the employment relationship and wants to quit of his own free will within the statutory deadlines, then the consent of the employer is not required.

The opinion of the employer is necessary when agreeing on a certain number of dismissals. In the event that the head of the company takes the principled position of refusing to agree on the date of dismissal before the expiration of the legal period, the employee will be required to work for the company for the prescribed two weeks.

Early termination of work in the example above would be considered a disciplinary offence.

There are certain restrictions for the employer, subject to the procedure for dismissing an employee at the initiative of the employee. So, the employer is not entitled to dismiss the employee without his knowledge before the end of the two-week working period.

How is the dismissal on probation at the initiative of the employee

Labor legislation provides for the possibility of dismissal at the initiative of an employee (Article 71 of the Labor Code of the Russian Federation) while he is on probation. For example, a specialist was hired, but very soon he realizes that he cannot perform his job duties for certain reasons.

It is not difficult to quit on probation, you just need to notify the employer three days before the date of dismissal by writing a statement on this fact.

Mandatory must be specified in the employment contract like having probationary period, as well as its period.

If the terms of the employment contract do not indicate a probationary period, this means that the employee has been hired for a position without a probationary period.

A probationary period, the maximum duration of which is three months, is assigned to the employee only with his consent. For the head and his deputies, for the chief accountant and his deputy, the maximum probationary period is six months. If an employment contract is concluded with an employee for a period of two to six months, the probationary period may not exceed two weeks. When the term of the employment contract with the employee is less than two months, the head of the company may not establish a probationary period at all.

The employer cannot prolong the period of probation due to the norms of labor legislation, which establishes deadlines for the appointment of an audit for an employee. But the employer has the right to extend the probationary period for the number of days that the employee was away from work for good reasons (illness, unpaid leave, etc.). In this case, the test of an employee can last even a couple of months.

Dismissal during probation

By notifying the employer three days before the expected date of dismissal, the employee can initiate the termination of the employment relationship with him.

The employer is not entitled to obstruct the dismissal at the initiative of the employee. An entry in the work book is made on the last working day of the employee, which is also the day of dismissal. On the day of dismissal, give the employee a completed work book and full payment.

To the departing employee must be paid:

salary;
compensation for all days of unused vacation;
severance pay (if it is provided for by an employment or collective agreement, locally regulations companies).

All this must be paid by the employer no later than the date of dismissal. That is, during the probationary period, the procedure for dismissal at the initiative of the employee is the same as for dismissal outside the probationary period.

An employee who decides to leave the company is not required to inform the employer of the reasons for the dismissal. It is enough to notify the employer in writing, but here you need to take into account certain nuances:

If an employee who is a financially responsible person is dismissed, then he must without fail transfer all affairs to a successor. Because this rule not spelled out in the Labor Code of the Russian Federation, it is better to register it in the local regulations of the company. Nevertheless, the Labor Code of the Russian Federation provides that in the event of failure to hand over material responsible person entrusted to him the property of the company, he begins to bear personal financial responsibility for it.
Employee for general rules is obliged to work for two weeks, but if he quits during the test, then the period of working off is reduced to three days.

Reasons for dismissal at the initiative of the employee

The most common reason for making a decision to dismiss at the initiative of an employee is dissatisfaction with pay or lack of career opportunities. Agree that the second reason is more important than the first. An employee who assumes the prospect of his development in the company understands that career growth also leads to an increase in wages.

good reasons

There are certain valid reasons for dismissal at the initiative of the employee, which make it possible to maintain his seniority:

an illness that has become an obstacle to continuing work or living in the area;
achievement by an employee of retirement age or retirement of a working pensioner;
the need to move;
caring for a child under 15 years old, a sick family member or a disabled person (if a medical opinion is provided from a medical institution);
distribution of a spouse (wife) for foreign work or service;
non-compliance with the terms of the labor or collective agreement by the employer;
enrollment in an educational institution.

Reasons that are indicated in the resume

According to statistics, applicants in the resume indicate the following reasons for dismissal at the initiative of the employee:

dissatisfaction salary;
there is no opportunity to develop and grow in the company. The lack of motivation and career prospects leads to the fact that employees are thinking about changing their activities, but at present, applicants use this reason as a cliché, perhaps a completely different reason is hiding behind it;
dream to find your destination;
due to personal and family problems;
remoteness of the workplace from home.

Reduction of employees as a way out in difficult times

Dismissal of an employee on his own initiative, when the employee is the general director

What reasons can push a top manager to think about changing jobs?

the general director is not satisfied with the salary level;
there is no opportunity for growth and development;
no rapport with the owner of the business.

Maybe you are exhausted and think that you have stopped developing in the company? Maybe you would like to do more for the company than the business owner requires? This is how a conflict of interest is born. The business owner is interested in your candidacy for the post of CEO, but you have "outgrown" the company and do not see it as future prospects for yourself. Every person sooner or later feels the need personal growth, and during this period he begins to actively look for a way to change his work activity.

Negotiations with the owner

Do not hide problematic situations from the business owner, voice the difficulties that the company is facing, and perhaps together you will find the most acceptable way to resolve them. From such a conversation with the business owner, you should understand whether he wants to help you and whether he can change something. What measures can the owner of the company take:

find an approach to the CEO in order to improve relations with him;
enable the growth of the CEO in professional direction, to allow him to act independently for the benefit of the company;
change working conditions, including the salary level of the CEO.

Extremely important: the CEO must himself understand what he wants and what he can, he should not ask the owner of the business for some improvements to the company, but should demand specific actions.

If this or that difficult production situation can be resolved, and the business owner is happy to cooperate with you, then the change of work activity loses its relevance. And, on the contrary, if the owner of the company does not make contact, neglects your ideas for the development of the enterprise, does not allow you to develop and grow professionally, you will again want to apply for dismissal at the initiative of the employee.

Legal aspects

It is very important to observe all the subtleties of the dismissal of the CEO. If the CEO works under an employment contract, then all actions upon dismissal should be specified in it. In that case when legal basis company is the charter, then it is necessary to rely on the term of office of the general director specified in this document, as well as on the timing of notifying the business owner about the upcoming departure of the head of the company.

For example, the charter of the company states that the general director is elected for a period of 5 years and, in the case of early dismissal at the initiative of the employee, he is obliged to give notice of his departure 12 months before the date of dismissal. This is a very difficult period for the CEO, as he is still obliged to perform his labor functions as the head of the company, and the business owner knows about his intention to leave for another business.

The CEO of a company should not make wrong decisions. For example, he will not be able to conduct business activities worse for ethical reasons, and a sense of legal responsibility will not allow him to work “sloppy” due to the fact that the business owner has the right to sue the head of the company.

Teamwork

Let's assume that you made a decision in favor of dismissal at the initiative of the employee, notified the owner of the business and have to work for the company for another year. There is no need to tell employees about leaving the company, as they are used to you and see you as a leader and curator of business activities. Obviously, with the departure of the CEO, the staff of the company will undergo changes. Wait for a successor to take your place, he will independently make decisions: which of the employees to leave and who to fire, but, in any case, the team under your leadership can work for the benefit of the company for the next year.

The following problems may also arise: you have gathered people around you with whom you are comfortable working, but it may happen that, having learned about the dismissal of the head of the company, employees will start looking for a new job. You and your staff are at risk of not being a team, because the negative attitude due to the departure of the leader can significantly affect the quality of the work performed.

The task of the CEO is to gently prepare the team for the upcoming changes. There is no doubt that some of the staff will leave after you, but you must transfer the rest of the team to the future leader with a mindset for fruitful cooperation and the well-being of the company. The company is your brainchild, it contains part of your soul, so be interested in its development and future success.

Psychological self-control

It will be a difficult year for you: it is difficult to work and realize that the day of dismissal is inevitably approaching. You will constantly think about another job, how to find it, what requirements to present to the owner of the business, etc. Interest in current activities is falling. What to do if there is no visualization of personal development? When you have made the decision to quit, but there is almost a year before the day of dismissal, the bifurcation stage begins. You must behave ethically towards the company you work for and remain a professional top manager in the eyes of your subordinates. How to be?

Control that the profitability of the company and the mood in the team do not go down.
It is necessary to conduct business activities as efficiently as possible, while defining the primary goals and objectives.
Track the quality of the work you do, it should not go down just because you decided to quit.

Prepare yourself mentally: even if you cannot work with full dedication in the coming year, you will make every effort not to lose the respect of the team.

Search new job

Do I need to look for a new job while you work at the old one? Would this be correct behavior on your part? By actively leaving in search of a new job, you run the risk of inciting rumors in the team and mistrust among partners. The company's reputation may be damaged. You, as the current head of the company, can set up the team for your departure, but at the same time present it as a strategy for the development of the enterprise. Before direct dismissal at the initiative of the employee, you have the right to send an official appeal to colleagues, partners, competitors, where you clarify the situation of your departure and highlight the potential future of the company.

It is extremely important that the position of both the owner of the business and the position of the resigning CEO are the same. Make an effort to ensure that the company prospers after you leave. This fact will increase you in the eyes of the future employer as a leader who has completed the assigned tasks and achieved the goals.

Termination of an employment contract in accordance with the Labor Code of the Russian Federation: a cheat sheet for employers

Expert opinion

When a director is dismissed on his own initiative, the shareholders face the question: “What to do?”

Elena Malysheva,

Attorney at Law, Managing Partner of Law Office "Advokat-Alliance", Moscow

If we consider the dismissal at the initiative of the employee from the position that the dismissed employee is CEO company, the procedure for terminating an employment contract with a manager should be carried out strictly within the legal framework. If the procedure for dismissal of the manager at his request is prescribed in the charter or local regulations, but contradicts the current labor legislation, then such rules cannot be applied.

According to Article 280 of the Labor Code of the Russian Federation, “the head of the organization has the right to terminate the employment contract ahead of schedule by notifying the employer (owner of the organization’s property, his representative) about this in writing no later than one month before. That is, the Labor Code limits the head for a period of only one month.

It is extremely doubtful that a business owner can on their own initiative set a higher deadline statutory. But it is necessary to take into account the difficulties that the business owner will face when the head of the company leaves. Suppose that the general director informs the employer about the dismissal at the initiative of the employee, while the general meeting of owners legal entity planned only in 8-9 months. Business owners have a lot of questions: “What to do next? Is it necessary to call an extraordinary meeting of owners? Who will be responsible for the CEO of the company? In many organizations, the CEO has one or more deputies, so there should usually be no problem as to which one should be given leadership duties prior to the meeting. general meeting owners. But difficulties may arise in recognizing the deputy general director as the legal representative of the company, if this situation is not provided for by the provisions of the charter.

I only once saw the charter of one company, which actually stated that during the absence of the general director, his deputy was appointed acting head of the company.

What difficulties may arise when there is a dismissal at the initiative of the employee

As a rule, all the difficulties with dismissal of one's own free will associated with employee claims.

We propose to consider them in more detail:

The employee forgets to indicate in the letter of resignation at the initiative of the employee that he wants to terminate the employment relationship at his own will. This is an infrequent mistake, but if the employee did not clearly indicate the reason for dismissal, then you must ask him to rewrite the application. The application must contain a request: “I ask you to terminate the employment contract on my initiative” or “I ask you to dismiss me of your own free will.” If it is not clear from the text of the application that the employee is resigning of his own free will, then after a while he can prove in court that he wanted to quit by agreement of the parties, and the employer unlawfully terminated the employment contract with him.
The employee put down in the application for dismissal at the initiative of the employee an earlier date than required by labor law. For example, an employee, in a statement dated February 10, 2017, asks to be dismissed of his own free will on February 16, 2017, but he does not indicate any reasons for such an early dismissal. If the employer needs the presence of this employee at the workplace in connection with the search for another employee and the transfer of all his affairs to him, then the task of the personnel department specialists is to explain to the employee the impossibility of satisfying his request. If the employee insists on the date of dismissal and does not want to properly rewrite the letter of resignation at the initiative of the employee, then personnel workers are required to transfer such a statement to the head of the company. Having considered the application, the manager either agrees with the date of dismissal, or refuses the employee's request, affixing his visa and ordering personnel service dismiss an employee within the time period stipulated by the norms of the Labor Code of the Russian Federation. We strongly recommend that you make a competent conversation with an employee at the stage of writing an application in the personnel department of the enterprise in order to convince him to rewrite the application.
The employee did not put down the date of dismissal in the application. In principle, the absence of a specific date of dismissal in the application for dismissal at the initiative of the employee is not any mistake or problem for the personnel department specialists. It is more important that the date of its writing is indicated in the application. Personnel workers count 14 days from the day following the day of writing the application, and carry out the dismissal on the last working day of the employee.

Compensation upon dismissal: how to pay off an employee

In what cases can dismissal at the initiative of an employee be considered illegal?

No voluntary resignation letter

One of the reasons for recognizing the dismissal at the initiative of the employee as illegal may be the absence of a statement from the employee with a clear intention to terminate the employment contract at his own request. This also includes situations where the application is not written by the employee himself.

How to protect the employer from complaints and lawsuits from laid-off employees who deny the fact of writing a letter of resignation of their own free will? Accept a handwritten application from employees, it is better if it is written with a specialist in the personnel department. If the employee defends his position that he did not write a letter of resignation, then the court will appoint a handwriting examination, the results of which will put an end to the authenticity of the document. If the employee brought a printed version of the application, then ask you to put the date, signature and transcript of the signature with you. In rare cases, an employee may write a statement in front of witnesses, but the courts do not always listen to their testimony.

Forced to write a letter of resignation of their own free will

There are situations when the administration of the company forces the employee to write a letter of resignation at the initiative of the employee. Such pressure from the employer on the employee is illegal.

According to sub. “a”, paragraph 22 of the Decree of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, termination of employment at the initiative of the employee is possible only when the employee shows his will to quit of his own free will without additional pressure and coercion from the employer. The employee must prove the fact of the absence of a personal will to dismiss and the fact of coercion by the employer's administration.

In practice, it is very difficult to prove the presence of pressure from the employer on the employee when writing a letter of resignation at the initiative of the employee. As a rule, even if the employee was really forced to write a letter of resignation of his own free will, the personnel department will not testify to the fact of compulsion and oppose the employer in court. Even if the representative of the employer says in court that the employee was offered to quit of his own free will, since he did not properly perform his labor duties, it is not possible to prove the fact of a specific compulsion to write an application.

Violation of the order of dismissal

A significant reason for the illegal dismissal of an employee can be a number of violations of the procedure for dismissal at the initiative of the employee.

For example, such a significant violation may be dismissal on a date that does not correspond to the will of the employee. If the date of dismissal is specified in the application, and it is outside the period established by law, then the employer does not have the right to dismiss the employee earlier than the declared date. That is, if an employee wrote a letter of resignation on February 10, 2017, and asks to be fired on February 28, 2017, then the employer is obliged to dismiss him on February 28, 2017.

Information about experts

Vadim Galtsov is the General Director of the Gicom company, Krasnodar. Gikom's field of activity: design of warehouses and their further construction, as well as supply and installation of warehouse equipment. Organizational form: LTD. Territory: head office - in the city of Krasnodar, branches - in Stavropol, Sochi, Rostov. Staff: 50 employees. Annual turnover: 190,000,000 rubles (for 2011).

Elena Malysheva, Attorney and Managing Partner of the Advokat-Alliance Law Office, Moscow. "Lawyer-alliance" successfully leads legal activity predominantly in labor services for more than two years.

It happens that an employer needs to fire one or more employees. Often, such situations end in litigation, and the court takes the side of the employee who defends his rights. Termination of an employment contract at the initiative of the employer is not so difficult to arrange if you know the basic rules.

The termination of all labor relations between the employee and the employer is reflected in chapter 13 of the Labor Code. If the employee himself expressed a desire to change the place of professional "habitat", then he can do this at any time, having worked after the application for 2 additional weeks. And what rights does an employer have who wants to say goodbye to his employee?

Conditions for dismissal at the initiative of the employer

The dismissal of an employee not on his personal initiative is quite legal, according to article 81 of the Labor Code of the Russian Federation, but is allowed only on the basis of a reason established by law:

Liquidation of the enterprise or reduction of the number of its personnel.
Certification not passed by the employee (point 3). For private entrepreneurs and commercial organizations here it should be clarified that in order to dismiss an employee, proof of his inadequacy for the position is necessary. If civil servants and state employees are tested on their knowledge regularly and according to established standards, then for the rest of the enterprise it is necessary to develop internal documents regulating the certification, indicating the requirements for positions held and methods of "punishment".
In particular cases, if there was a change of ownership.
Violations related to the employee's failure to fulfill their duties, as well as the presence of disciplinary sanctions in the form of reprimands or comments, which are mentioned in article 192 of the Labor Code of the Russian Federation.
Perfect gross violations on the part of the employee, which may include: absenteeism without a valid reason, appearing at work in a drunken or inadequate state, disclosure of secrets entrusted to the position, theft, as well as an established violation of labor protection requirements, in connection with which, through the fault of the employee, there was or there might be an accident.
Loss of due confidence in the employee in the event of improper handling of money or valuables on his part (no later than a year from the moment of such an incident), the provision of false documents during employment.
Immoral acts of educators (if you have, say, a private Kindergarten or school).
A number of violations or unreasonable actions of the management staff of the organization, followed by the dismissal of this staff.
Other violations prescribed in the labor or collective agreement.

As we can see, the reasons for dismissal at the initiative of the employer are divided into those that occurred through the fault or without the fault of the employee. If the dismissal occurred as a result of the certification, the employee has the right to appeal this decision attestation commission in court within 3 months. The very fact of dismissal, whatever the reason, can be appealed by the employee within 1 month from the date of receipt of a copy of the order on this or the return of the work book ().

If the dismissal occurred as a result of the certification, the employee has the right to appeal this decision of the certification commission in court within 3 months.

Termination of a fixed-term employment contract occurs, according to article 79 of the Labor Code of the Russian Federation, automatically after the expiration of this very period or after the end of seasonal work, about which the employer must notify his employee in writing 3 days in advance. If an employer requires an early termination of work of his employee, then this can only happen on the basis of all the same conditions of Article 81 of the Labor Code of the Russian Federation.

The head also has the right to dismiss, on his own initiative, an employee who is in his position part-time if a new employee appears for whom the released workplace will become the main one, as written in article 288 of the Labor Code of the Russian Federation. Dismissal remote worker it is also possible at the initiative of the employer, when the grounds prescribed in the employment contract are taken into account ().

Termination of labor relations with socially protected categories of citizens

There are a number of citizens with whom termination of the contract at the initiative of the employer is not allowed:

It is impossible to terminate the contract during the period when the employee is on vacation or on sick leave (the last paragraph of Article 81 of the Labor Code of the Russian Federation).
Impossible dismissal underage worker without the official consent of the departments for labor inspection and juvenile affairs ().
It is impossible to terminate an employment contract with a pregnant woman until the fact of pregnancy is confirmed, as stated in article 261 of the Labor Code of the Russian Federation.

The listed persons may still be dismissed if the liquidation of the organization or closure occurs. individual enterprise without any additional reason.

Often an employer is interested in the question: is it legal to dismiss a person who has a retirement or pre-retirement age? The Labor Code does not provide guarantees for this category of citizens, therefore, they are subject to general rules. However, there is, denoting those whom the head should mainly leave at the workplace when reducing the staff. These include employees who are more productive at work or have higher qualifications. An elderly person who has worked in his specialty for many years, perhaps, can prove himself in work no worse than a young ambitious worker.

When reducing staff, the manager should give preference to more productive employees or specialists with higher qualifications.

The process of dismissal at the initiative of the employer

The dismissal of an employee has its own procedure and deadlines. Main Document confirming the fact of dismissal of an employee is an order. It is filled out in the T-8 form, and, according to Art. 84.1. Labor Code of the Russian Federation, the employee must sign this order.

If you intend to dismiss an employee in 2017, the order must indicate:

Internal number of the order, its date.
The date of commencement and termination of the employment contract, its number, as well as the personnel number of the employee.
Name and position of the employee at the time of dismissal.
Reason for dismissal with exact reference and wording of the article Labor Code.
Documents giving grounds for dismissal. As an example, this can be a certificate of the employee's drunken state at the time of going to work, eyewitness statements, a report, an order to reduce, etc.
Signature of the head and its transcript.
Signature of the employee and date of familiarization with the order.

You can see a sample order. When reducing staff or liquidating an organization, according to article 180 of the Labor Code of the Russian Federation, a signed notice must be sent to the employee 2 months before dismissal. If the employee is to blame for the dismissal, the warning is not established by law.

On the day of dismissal, the employee must pay the full payment () and issue a work book with an entry corresponding to the wording of the Code. In addition to the calculation for hours worked and non-vacation leave, the employee is entitled to payments in the form of severance pay (). Such benefits are paid only if the dismissal occurs through no fault of the employee.

On the day of dismissal, the employee must pay the full settlement and issue a work book with an entry corresponding to the wording of the Labor Code.

On the last day of work, you must give the employee a certificate of his earnings for the last 2 years and information about insurance premiums.

You cannot fire an employee without a reason, and if you think there is a reason, then you need to prove it. If you dismiss an employee without reason, he will appeal your decision in court. The court, by the way, usually takes the side of the employee, and you will have to reinstate him in his position, as well as pay legal costs. When dismissing an employee, you must justify all the reasons and pay former employee all his means.

The procedure for dismissal of an employee is determined by the provisions of the Labor Code of the Russian Federation and refers to carefully regulated procedures. This is perhaps the most difficult part of the relationship between the employer and employees.

Legislation protects the rights of not only those who work, but also those who provide work, so the possibility of not encountering problems later depends on compliance with all the nuances and requirements. This applies to mutual claims on settlements, complaints about illegal dismissal, errors in payments and issuance of documents.

Grounds for termination of labor relations

The grounds for termination of an employment contract are set out in Art. 77 of the Labor Code of the Russian Federation. This is a general list of reasons for which a decision to dismiss may be made. You can terminate a relationship in accordance with the law in the following ways:

by agreement of the parties - this is an option in which the employer and employee can jointly develop the conditions for parting and draw them up as an addition to the main contract, and this can be done even at the stage of hiring;
at the employee's own request, which the employer cannot interfere with;
at the initiative of the employer - this includes all cases when the continuation of the employment relationship, in the opinion of the employer, becomes impossible, including the termination of the existence of the enterprise, and other reasons;
due to other circumstances beyond the control of the parties - these are both the requirements of the law and the performance of public duties.

Both parties must understand that grounds not prescribed in the Labor Code cannot be used in dismissal, and some of the wording is used only in a limited number of cases.

Who can not be fired at the request of the employer

The rules for dismissal of employees of an enterprise, company or individual entrepreneur limit the possibilities of the employer in relation to several categories of persons.

These are pregnant women and raising children (until they reach the age of three), single mothers with children under 14, mothers with disabled children under 18, and persons who are covered by the wording: “raises children on their own”.

It also applies to fathers, so a man with a child without a mother, a guardian or adoptive parent under such circumstances cannot be fired either. The only exception is the termination of existence (liquidation) of the enterprise.

Advantages of dismissal by agreement of the parties

Practice personnel work shows that in the overwhelming majority of cases, the termination of employment occurs either at the employee's own request or at the initiative of the employer. The conclusion of an agreement is much less common, since not everyone understands the very essence of this form of dismissal. But, from the point of view of both parties, it provides certain advantages and guarantees:

correctly drawn up, not violating the requirements of the law, the agreement of the parties guarantees the absence of mutual claims in the future;
it will be easier for the employee to register as job seeker(unemployed);
this form of dismissal allows you to agree on payments from the employer and avoid working off the prescribed two-week period;
the employer insures himself against cases when he is accused of forcing the employee to write a statement of his own free will.

This interesting subtlety is well known to experienced personnel officers and managers. If the parties agree on the terms of termination labor agreement, dismissal can be completely painless.

Dismissal at the request (initiative) of the employee

The procedure for dismissal of an employee own initiative assumes that the employer will have time to find a replacement and accept appropriate reshuffles. Article 80 of the Labor Code of the Russian Federation establishes the rules for the execution of such a decision:

the application is submitted 2 weeks before the final settlement date, regardless of whether the employee is on site or sick, uses vacation;
the dismissal order is drawn up in advance; at the time of termination of the relationship, it must be signed by both parties (the employee is familiarized);
on the last day, the employee receives a work book, a certificate of 2 personal income tax and those documents that he requested earlier in writing;
subsequently, the dismissed person can apply at his former place of work for extracts, certificates and confirmation of his labor activity.

After receiving and registering the application, the employer cannot change the deadlines for its execution, and the employee has the right to withdraw it at any time and continue working. That is why it is recommended to check the registration of the application at the time of its submission, so that later you do not end up in the position of a truant. If the dismissal order is not signed and prepared by the specified date, then the employee may not appear at the place. But if the application is “lost”, then it will be extremely difficult to prove its submission.

A two-week period of working off is not considered mandatory if the employee has announced the move, is drafted into the army, enrolled in studies, and retires. The violation of the Labor Code of the Russian Federation by the employer also belongs to the same category. All circumstances must be evidentiary - it is required to confirm them with documents.

Calculation initiated by the employer

The employer has the right to take the initiative and dismiss the employee if he systematically fails to fulfill his duties, violates discipline and internal rules, and was disqualified.

Dismissals for violations

Upon dismissal due to constant violations, it is necessary to collect an evidence base in which orders with their description will appear. You can use the wording “loss of confidence” only in relation to persons directly related to the financial part or material values e.g. cashiers, storekeepers. It is impossible to apply such an approach to the chief accountant or economist.

drunk worker

What to do with a drunk employee? You can fire him, but only if he was taken for examination, which confirmed the fact of intoxication. The employer must organize transport, and in case of a negative result of the examination, pay its cost from his own funds.

If you refuse this procedure, you will have to draw up an act, remove the offender from work and collect evidence in which there will be signs of intoxication. It is possible to call the police so that its representatives themselves organize the delivery to the dispensary.

It is possible to use “tubes” and other means, but they will not be considered evidence of intoxication without the opinion of a narcologist who conducted tests at the dispensary, while being at the workplace at the time established by the schedule.

Absenteeism and dereliction of duty

The basis for dismissal is fixed and confirmed absenteeism. But there is a subtlety here too: if the employee has already been punished for him by a reprimand in the order, then he will have to wait for the next absenteeism.

Dismissal in this case is considered as a disciplinary sanction, and it cannot be applied twice for one violation. The duration of absence from the workplace is at least three hours.

But it is forbidden to qualify as absenteeism a case when a person did not leave the territory of an enterprise or workshop - this refers to dereliction of duty. If there is evidence that the employee could not be found for several hours, then it becomes possible to consider absenteeism.

When can't you get fired?

A very important detail that applies to all cases of termination of employment by the employer is that it is impossible to dismiss someone who is on vacation and on sick leave. You just have to wait for the end of this period.

As for payments and deductions from earnings at the time of termination of the employment contract, the employer should be careful and carefully study the provisions of the Labor Code of the Russian Federation. Proved material damage can be withheld only in the amount of one salary (no more), and the cost of overalls, if it was not returned on time, can be compensated in an amount not exceeding 20% of the salary.

Any other deductions from the final settlement are not allowed and may result in sanctions if the employee contacts the labor inspectorate.

How to act upon dismissal - instructions for the employee and employer

The process of dismissal by mutual agreement, the desire of the employee or the initiative of the employer must comply with the requirements of the law. This applies to deadlines, paperwork, payments, and other features.

Worker's procedure

The step-by-step instruction for an employee looks like this:

an application is submitted with the wording “of your own free will”, you make sure that it is registered with the incoming number;
after the release of the order, sign an acquaintance with it;
in two weeks you are provided with a calculation, a work book and a salary certificate, after which your duties towards the employer are completed;
you have the right to withdraw your application at any time, while remaining in your previous position, regardless of the relationship of the employer with his new employees or applicants for your place.

When making settlements by agreement of the parties, a period of two weeks is not required.

The procedure for the employer

On the part of the employer, the procedure for dismissing an employee should be as follows:

a statement is registered or a violation is recorded, which will become the basis for terminating the relationship;
an order is drawn up, which indicates the reason for the dismissal, the date of the violation or the employee’s appeal, a reference is made to an article of the Labor Code;
the employee is being familiarized, and if they cannot find him, an act is drawn up describing the circumstances, which is attached to the order;
on the last day of work, a person receives a calculation and documents, and this must be done before the formal end of his shift according to the schedule;
a receipt is taken that the documents have been handed over, and if the person did not pick them up himself, everything must be sent by registered mail to the address indicated in the contract.

Typical mistakes made by the employer in such cases are the delay in payments, the late transfer of documents, the indication in the work book of a wording that is not prescribed by law. The grounds must be entered in accordance with the text of the Labor Code of the Russian Federation, while the article must be indicated!

Subtleties and features of dismissal

What other subtleties of dismissal should be taken into account?

There is the possibility of dismissal by transfer - this requires a document in which the new employer confirms his intentions.
Fixed-term employment contracts are terminated at a specified time, but they may include, for example, the performance of a certain amount of work.
For managers and responsible employees who must hand over cases, the period of working off can be extended up to a month.
The employee has the right to refuse to continue the relationship with the employer if working conditions change significantly, production is transferred to a new location, which requires the relocation of employees, the staff is reduced, and you do not want to move to the remaining positions.

The right to withdraw the application of your own free will continues to operate after the signing of the dismissal order, but only until you have taken the work book and read the order. Usually, in order to avoid overlaps, familiarization is delayed until the last moment.

Dismissal, or termination of employment, is considered one of the main personnel procedures. When parting with an employee (even if he quits quietly, peacefully and on his own initiative), make sure that all the formalities are met: termination of an employment contract often serves as fertile ground for conflicts and litigation.

From the article you will learn:

The list of all grounds for dismissal provided by the legislator is enshrined in Article 77 of the Labor Code of the Russian Federation. This article, called “skeletal” for its schematic and concise definitions, reflects all the reasons why an employment relationship can be terminated, but the exact procedure for the actions of the employer and employee is not described in it - many paragraphs simply refer the reader to other, more detailed norms of the Labor Code . The initiator of the termination of the employment contract can be both the employee himself and the employer, who can also terminate the employment relationship at their mutual will, by concluding an appropriate agreement, or involuntarily - under the influence of factors beyond the control of the parties.

Dismissal at the initiative of the employee

Most often, in personnel practice, an employee is formalized: in order to terminate an employment relationship, he simply needs to submit a corresponding application to the personnel department (part one, article 80 of the Labor Code of the Russian Federation). Unlike an oral agreement, a written statement is considered sufficient grounds for terminating the employment contract, and it does not matter whether the document is delivered by the employee personally or sent by mail (the main thing is to make sure that the date and personal signature of the applicant are present). A free-form application form might look like this:

Voluntary resignation letter

The law obliges an employee to work for at least two weeks after filing, unless otherwise provided by the Labor Code (for some categories of employees, extended or shortened terms are established). The countdown of the period of working off begins on the next working day after the receipt of the application by the employer. Remember that the right to three notices calendar days before the expected date of termination of employment have:

At the same time, leaders of organizations, as well as athletes and sports coaches employees with whom an employment contract has been concluded for a period of more than four months are required to notify the employer at least one month before the desired date of dismissal. In order to increase or shorten the period established by the legislator, the parties must agree on this issue - neither the employer nor the employee has the right to do so unilaterally.

In practice, employees often do not want to work out the days or weeks remaining before dismissal, but the list of circumstances under which an organization is obliged to release an employee without working off is extremely limited. If we are not talking about the employee's retirement, moving to another locality, enrollment in educational organization, an illness that interferes with the performance of work duties, and other valid circumstances, he will have to go to work until the end of the statutory period. In such a situation, some "savvy" employees simply take sick leave or stop showing up for work without good reason. In the first case, the employer will have to issue an order to terminate the employment contract after the expiration of the prescribed period, even in the absence of the employee, if he is still on sick leave.

The same is done if the employee is on vacation: the ban on dismissal during illness or vacation applies only to cases of termination of employment at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation). But if the condition of working off is ignored by the employee without good reason, nothing prevents him from filing a dismissal for absenteeism (subparagraph “a”, paragraph 6 of the first article 81 of the Labor Code of the Russian Federation).

Dismissal at the initiative of the employer

In 2016, the dismissal of an employee at the initiative of the employer is considered legal only if there are good reasons and compliance with the procedural regulations established by law. According to Article 81 of the Labor Code of the Russian Federation, an employer may terminate an employment relationship with an employee unilaterally in the event of:

Dismissal by agreement of the parties

The easiest and safest way to terminate both open-ended and fixed-term employment relationships is dismissal by agreement of the parties. The grounds for the procedure are provided for in Article 78 of the Labor Code of the Russian Federation, and any party can be the initiator (if the initiative comes from the employer, it is important to make sure that the employee agrees to dismissal voluntarily, and not under external pressure). The agreement is drawn up in any form, in writing:

Agreement on termination of the employment contract

Sometimes it is allowed to terminate an employment relationship by agreement of the parties on the basis of an oral agreement between them, but in a disputable situation, the court will most likely recognize the dismissal as unlawful, so it is better to enlist the written will of the employee.

Important: The agreement must indicate the grounds and date of termination of employment, and, if necessary, also additional terms- for example, on the payment of severance pay, the provision of leave beforedismissal, employee responsibilities for the completion and transfer of cases, etc.

Dismissal in the order of transfer

The Labor Code very briefly describes the procedure for dismissal in the order of transfer. In the event of a permanent transfer of an employee to another employer, the employment contract at the place of previous work is terminated (clause 5, part one, article 77 of the Labor Code of the Russian Federation). Three conditions must be met in order to complete a transfer:

written consent of the employee;

consent of the former employer to the chosen method of termination of employment;

an invitation to work issued by a new employer in writing.

If all participants in the process have reached agreement on key issues, it is necessary to document it and agree on the dates of dismissal and employment at a new place of work. An employee dismissed as a transfer is provided with certain guarantees: he cannot be placed on probation for new position, as well as to refuse employment within a month from the moment of dismissal (Article 64 of the Labor Code of the Russian Federation).

A transfer request can be made by both the employee himself and the employer: in the first case, the entry in the work book contains the wording “at the request of the employee”, in the second - “with the consent of the employee”. The document is drawn up in any form, for example:

Request for dismissal in order of transfer

If the employer is ready to part with the specialist and agrees to his transfer to another organization, after agreeing on the details of the transfer, he sends a confirmation letter to the receiving party, to which is attached written agreement employee for transfer, and issues an appropriate order:

Order to terminate an employment contract with an employee

Dismissal of a pregnant employee

For working pregnant women, labor legislation establishes certain guarantees, among which is a ban on termination of an employment contract at the initiative of the employer. In fact, he has no right to either dismiss such an employee without her consent, or refuse to extend her fixed-term employment contract until the end of her pregnancy.

None of the grounds for dismissal enshrined in Article 81 of the Labor Code of the Russian Federation applies to a pregnant woman, the only exception is the complete liquidation of the organization. Reorganization, change of ownership of the company, partial liquidation of the enterprise are not good enough grounds for terminating the employment relationship with a pregnant employee. Dismissal is issued only by agreement of the parties or of their own free will, and here the employer is recommended to pay special attention to the correctness of the documentary support of the procedure.

Important: if a pregnant employee wrote a statement aboutdismissal, but subsequently changed her mind, the employment relationship can be terminated only on the condition that in her place has already been invited in writing new employee, which cannot be legal grounds refuse employment.

How to reflect the dismissal in the work book?

On the last day of work of the dismissed employee, it is necessary to make a final settlement with him; provide all guarantees and compensations provided for by law, local regulations, contracts and agreements; issue a work book with a record of dismissal. The wording used when filling out the work book must exactly match the text of the order. For example, the termination of an employment relationship at the request of an employee is formalized as follows:

An entry is made in the section "Information about work" indicating the serial number, date and reference to the paragraph and part of the article of the Labor Code of the Russian Federation corresponding to the reason for dismissal. If the parties have drawn up an agreement on the termination of labor relations, a reference is made to paragraph 1 of the first part of Article 77 of the Labor Code of the Russian Federation. In the event of the departure of an employee who refused to continue working in connection with a change in the terms of the employment contract determined by the parties, - to paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation. And if a transfer is made to another employer, you need to refer to paragraph 5 of the first part of Article 77 of the Labor Code of the Russian Federation. Be sure to indicate the details of the order, as well as the name of the position and full name. official who made the entry.

Important: it is better to fill out a work book on the last day of work of an employee who leaves of his own free will, since he has the right to . In this casedismissal is not formalized, respectively, an entry in the work book is not made.

Test yourself

1. What is necessary for dismissal at the initiative of the employee:

a. a written application, which must be personally submitted by the employee to the personnel department;
b. oral statement;
c. written statement with date and personal signature employee, delivered to the personnel department in person or by mail.

2. Which category of employees does not have the right to notification on their own initiative three calendar days before it:

a. athletes and coaches;
b. employees during the probationary period;
c. seasonal workers.

3. In which case is it necessary to work out the time remaining before dismissal:

a. when enrolling in an educational organization;
b. when moving to another area;
c. when submitting a letter of resignation before the holidays.

4. Who can be fired at the initiative of the employer under normal conditions:

a. underage worker;
b. sole breadwinner large family with young children;
c. employee on vacation.

5. In what case can a pregnant employee be fired:

a. in case of downsizing;
b. during reorganization;
c. upon liquidation of the organization.

Termination of the employment contract at the initiative of the employee, provided for in paragraph 3 of part 1 of Art. 77 and regulated by Art. 80 Labor Code Russian Federation, is perhaps one of the most common grounds for termination of an employment contract. At the same time, the employee may have some problems with its implementation. Therefore, we will consider this basis for terminating the employment contract in detail and analyze some of the nuances of dismissal of one's own free will.

Application for termination of the employment contract at the initiative of the employee
According to Part 1 of Art. 80 of the Labor Code of the Russian Federation, an employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless another period is established by law. The form of the warning, except for the fact that it must be written, is not established by the legislator, however, as a rule, the warning is drawn up as a statement written / printed in free form.
However, the application must clearly indicate the employee's intention to terminate the employment relationship (wording like: "please fire me"), and, of course, the application must be certified by the employee's signature.

Since the law establishes a minimum term for warning the employer of dismissal, but no maximum term, the question arises of the legality of dismissal of an employee when the application submitted by him does not contain a specific date of dismissal. There is an opinion that in such a situation, the dismissal of an employee is impossible, since they do not specify a specific day for the termination of employment. In this regard, it is advisable to indicate in the letter of resignation the last day of work (taking into account the term of the notice of dismissal), since this will be more convenient for you in case of refusal to dismiss and a labor dispute arises. It should be noted that according to experts Federal Service on labor and employment, if the date of dismissal is not indicated in the letter of resignation, then the employer should count two weeks from the day following the day the application was received and dismiss the employee (see, for example, Letter of Rostrud dated 07.23.2012 No. PG / 5521- 6-1). However, this is only the opinion of Rostrud specialists, with which individual judges may not agree. Thus, we recommend that you, if possible, indicate the date of dismissal in the application, taking into account the minimum two-week notice period for the employer about it.
Other information can also be indicated in the application: for example, the employee’s request for leave with subsequent dismissal, the reason for dismissal, etc.

At the same time, the reason for dismissal should be indicated when the employee wishes to quit without observing the term of notice of dismissal due to the impossibility of continuing his work (enrollment in an educational organization, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts containing norms labor law, local regulations, the terms of the collective agreement, agreement or employment contract, since in these cases, by virtue of Part 3 of Art. 80 of the Labor Code of the Russian Federation, the employer is obliged to terminate the employment contract within the period specified in the employee's application. However, you should be aware that:

a) “other cases of impossibility for the employee to continue working” will be assessed by the court (or other law enforcer), if there is a dispute with the employer in a particular situation, by internal conviction, i.e. the assessment of the situation itself can be quite subjective;
b) “violations of labor legislation, terms of an employment contract, etc.” must be established by any competent authorities, i.e. the employee must have official documents in his hands, indicating that the employer has violated (violates) labor legislation - a court decision, an order from the state labor inspectorate, etc. As explained by the Supreme The Court of the Russian Federation in paragraphs. "b", paragraph 22 of the Decree of the Plenum of March 17, 2004 No. 2, these violations can be established, in particular, by the bodies that carry out state supervision and monitoring compliance with labor laws, trade unions, commissions on labor disputes, the courts.

At the same time, it is important to indicate the reason for dismissal if it is connected by the legislator with the provision of certain benefits and benefits, since in accordance with clause 5.6 of the Instructions for filling out work books (approved by Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69), if there are such reasons a record of dismissal is entered in the work book indicating these reasons. For example: “The employment contract was terminated at the initiative of the employee in connection with the transfer of the husband to work in another locality, paragraph 3 of Article 77 of the Labor Code of the Russian Federation” or “The employment contract was terminated at the initiative of the employee due to the need to care for a child under the age of 14 years , paragraph 3 of Article 77 of the Labor Code of the Russian Federation”.

With regard to the provision of leave to the employee with subsequent dismissal, the satisfaction of such a request by the employee by virtue of Part 2 of Art. 127 of the Labor Code of the Russian Federation is the right, not the obligation of the employer.

As Rostrud explained in Letter No. 1551-6 dated September 5, 2006, a letter of resignation can be handed over in person or sent by registered mail.
At the same time, when handing over the letter of resignation in person, it is better to first make a copy of the application and ask the manager / personnel officer to put a mark on this copy of receipt in order to avoid conflict situations with the employer (for example, it may turn out that no one “saw” the application, and the person did not go to work, considering himself fired, and as a result he became fired for absenteeism).

A situation may also arise when the employer refuses to accept a letter of resignation from the employee, citing far-fetched reasons such as “you need to submit a report, but there are not enough employees,” etc. However, you need to understand that Russian legislation provides for freedom of labor, and, accordingly, an employee may decide to terminate the employment contract at any time. Therefore, you should not be led by the "duck" of the employer. In this case, it would be best to send the application by registered mail with a list of attachments and delivery notification, and then, even if no one reads this letter, the employee will have evidence that the application was submitted; truth set time a notice of dismissal with this method of filing an application will begin to flow not from the moment the letter is sent, but from the day it is delivered, indicated in the notification of receipt.
When sending a letter of resignation of one's own free will by mail, it should be borne in mind that formally employer-organizations are located at a legal address, which may differ from the address of the actual location of the authorized representative of the employer. Information about the legal address of the organization, as well as the official address of registration individual entrepreneur, can be obtained from tax office and on the official website of the Federal tax service- http://www.nalog.ru/. If the employee decides to send a letter of resignation by mail, and the legal address of the organization does not match the address of the actual location of the authorized representative of the organization, it is recommended to send a letter of resignation to both addresses simultaneously.

At the same time, paragraph 22 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” emphasizes that termination of an employment contract at the initiative of an employee is permissible in the case when an application for dismissal was a voluntary expression of his will. If the plaintiff claims that the employer forced him to file a resignation letter of his own free will, then this circumstance is subject to verification and the obligation to prove it rests with the employee.
And you can find out more information about what an employee should do if he is forced to quit of his own free will, here: http://site/base/faq/366

Questions regarding the term of notice of dismissal
There is such a name for the term of notice of dismissal as "two-week working off." I would like to immediately point out that the Labor Code of the Russian Federation does not contain the concept of "working off". The notice period for dismissal, in principle, can hardly be called working off, since, as indicated in the Letter of Rostrud dated 05.09.2006 No. 1551-6, an employee can notify the employer of dismissal not only during work, but also during the period of vacation and during a period of temporary disability , while the date of the proposed dismissal may also fall within the specified periods. Moreover, as noted above, by virtue of Part 2 of Art. 127 of the Labor Code of the Russian Federation, upon a written application from the employee, unused vacations can be granted to him with subsequent dismissal, where the last day of the vacation will be considered the day of dismissal, respectively, no one will “work out” anything here. That is, it is a warning.

However, indeed, by virtue of Part 1 of Art. 80 of the Labor Code of the Russian Federation, it is necessary to notify the employer of the intention to terminate the employment contract no later than two weeks in advance. The specified period begins on the day after the employer receives the employee's application for dismissal. The two-week period is calculated in calendar order, i.e. it includes and non-working days, and the days on which the employee was released from the performance of his official duties(period of temporary disability, vacation, etc.).
At the same time, labor legislation allows to warn the employer earlier than two weeks (three weeks, three months, one year before the termination of the employment contract).
At the same time, by agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice of dismissal (part 2 of article 80 of the Labor Code of the Russian Federation). Thus, the employee can try to discuss this issue with the employer, and if an agreement is reached, then the employee will be able to terminate the employment contract at least on the first day of the warning period.

It is important to point out that a different notice period is provided for certain categories of workers.
So, the head of the organization is obliged to warn the employer in writing about the early termination of the employment contract no later than one month in advance (Article 280 of the Labor Code of the Russian Federation).
Employees who have concluded an employment contract for up to two months, as well as those employed in seasonal work, are required to notify the employer of the early termination of the employment contract three calendar days in advance (Articles 292 and 296 of the Labor Code of the Russian Federation).
If the employee during the trial period comes to the conclusion that the proposed job is not suitable for him, then he has the right to terminate the employment contract at his own request, notifying the employer in writing three days in advance (Article 71 of the Labor Code of the Russian Federation).
An athlete, a coach have the right to terminate the employment contract on their own initiative (at their own request), notifying the employer in writing no later than one month, except when the employment contract is concluded for a period of less than four months; and in some cases, employment contracts with certain categories of athletes, coaches may provide for conditions on the obligation of athletes, coaches to warn employers about the termination of employment contracts on their initiative (at their own request) within a period exceeding one month (Article 348.12 of the Labor Code of the Russian Federation).

According to part 5 of Art. 80 of the Labor Code of the Russian Federation, after the expiration of the notice of dismissal, the employee has the right to stop working.

If an employee changes their mind about leaving
According to part 4 of Art. 80 of the Labor Code of the Russian Federation, before the expiration of the dismissal period, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out if another employee is not invited to his place in writing, who, in accordance with the Labor Code of the Russian Federation and other federal laws cannot refuse to conclude an employment contract. So, by virtue of Part 4 of Art. 64 of the Labor Code of the Russian Federation, it is prohibited to refuse to conclude an employment contract for employees invited in writing to work by transfer from another employer within one month from the date of dismissal from their previous place of work.
If such an employee is invited, then the employee who wrote the letter of resignation of his own free will is actually deprived of the right to withdraw such a letter.

In addition, by virtue of Part 6 of Art. 80 of the Labor Code of the Russian Federation, if after the expiration of the term of notice of dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues. It follows from the norm that no additional agreements in this case, the employee and the employer should not conclude - it is enough that there is no order to dismiss and that the employee does not insist on dismissal.

What is required from the employer?
First of all, the employer must formalize the termination of the employment contract by order (instruction) and familiarize the employee with this order (instruction) against signature. Most often, such an order is issued on the day the employment contract is terminated (on the last day of the employee’s work), since, as mentioned above, during the entire warning period, the employee has the right to withdraw the letter of resignation.
By virtue of Art. 84.1 of the Labor Code of the Russian Federation, at the request of the employee, the employer is obliged to issue him a duly certified copy of the order (instruction).
In the event that the order (instruction) to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to get acquainted with it against signature, an appropriate entry is made on the order (instruction).

However, by virtue of h. 5 Article. 80 of the Labor Code of the Russian Federation on the last day of work, the employer is obliged to issue a work book to the employee, other documents related to work, at the written request of the employee and make the final settlement with him.
According to part 6 of Art. 84.1 of the Labor Code of the Russian Federation, in the event that on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send a notice to the employee about the need to appear for a work book or agree to send it by mail. After the employer has sent such a notice, he is released from liability for the delay in issuing a work book.
It is important to point out that sending a work book by mail with delivery to the specified address is allowed only with the consent of the employee (clause 36 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of April 16, 03 No. 225) .
At the same time, at the written request of an employee who did not receive a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee's request.

Another nuance: if the employee goes on vacation with subsequent dismissal, then the documents must be issued to the employee on the last day before the vacation, since the employer cannot call the employee from vacation to process the documents, nor can he delay the issuance of documents. The same day will be the last one for the employee to withdraw the letter of resignation. At the same time, according to part 2 of Art. 127 of the Labor Code of the Russian Federation, the last day of vacation will be considered the day of dismissal.