What grounds may lead to termination of an employment contract. Procedure for terminating an employment contract

Termination employment contract at the request of the company employee, he is included in the dismissal process at his own discretion own initiative. The employee must submit such an application at least 14 days before the expected day of departure.

Termination of employment contracts at the request of a subordinate: grounds

The labor agreement is always drawn up in written format and signed by both parties - the subordinate and the boss. It sets out the obligations and rights:

the employee undertakes to perform the work provided in accordance with the requirements of the manager and bear responsibility for the performance of duties and obey the company rules;
the employer undertakes to provide the subordinate with activities, pay timely wages and create acceptable working conditions.

Every employee has the right to terminate a contractual agreement in the following circumstances:

Reason #1. The subordinate enters at any time educational institution.
Reason #2. Retirement age is approaching.
Reason #3. Moving to another place of residence (city, country).
Reason #4. Violation of the rules of labor legislation of the Russian Federation by the employer.
Reason #5. Deterioration of the employee’s health, detection of a serious illness, disability.
Reason #6. Change of owner of the company (if new employer not satisfied for one reason or another).
Reason #7. Creation of worse conditions by the employer labor activity.
Reason #8. The company is moving to another location, but the employee is not happy with it.

If the employee breaks the written agreement due to the above factors, he has every right do not modify for 2 weeks. If the working period is set, then during this time the employee may change his mind and remain working. But only in a situation where the vacated position has not yet been approved new person. On the day of payment, the subordinate receives his work record, all payments (salary, vacation funds, etc.) and the required documents.

Conditions for full termination of an employment contract at the initiative of an employee

The main requirement when leaving the company at will is to notify management at least 14 days before the settlement date. Warning is necessary both for the leader and for the person himself. During this period, the manager must find a replacement for the employee, and the employee can change his decision during this period. Other conditions include the following:

you need to submit a corresponding application in the form of a letter;
the employer is obliged to draw up an order to terminate the contract;
the employee must be familiarized with the order (if it is impossible to do this or the citizen refuses, a certain recording is made);
registration of records with calculations;
a note is made in the employee’s personal file.

In the Labor Code Russian Federation Art. 80 clearly states the conditions and time for the employee to notify the manager about the termination of the TD. Usually this is 2 weeks, but there are exceptions, depending on the profession, the specifics of the work and the position held:

in case of seasonal employment, 2-month conclusion of a document, or in the case when a person is on probationary period, the application is allowed to be submitted three days before the date of dismissal;
if an employee leaves a managerial position, he is obliged to notify the owner of the company 30 days in advance;
when working in religious organizations or for individual entrepreneurs, legal warning periods do not apply, since they are established on an individual basis;
terms will be able to be reduced by subordinates under specific circumstances specified in the Labor Code of Russia.

If all parties voluntarily decided to cancel the employment contract (ET) within the desired period, then the application can be written on any day.

How to terminate an employment contract correctly (video)

You can learn about Article 80 of the Labor Code of the Russian Federation and the requirements for terminating a contract at the initiative of an employee from the video provided to your attention:

Termination of a fixed-term employment contract at the request of the employee

Fixed-term contract labor involves its preparation for a certain period of activity. For example, for several weeks or months, but not more than 5 years. This happens when seasonal work, for elected positions, in the case when it is necessary to temporarily replace a person (if maternity leave, serious illness, etc.).

Features of termination of a fixed-term employment contract:

If the contract is drawn up for 3 months or more, then in order to terminate it the employee must submit a warning application 14 days before the settlement date.
When concluding a contract document within 2 months, it is permissible to notify the employer 3 days in advance.
If the management agrees, then you can quit on any convenient day. The reason for this should be as valid as possible.

Termination of TD by an employee during a probationary period

If a citizen is placed on a probationary period, then in order to terminate the trade relationship with the company, he must submit a warning letter within three days. At the same time, based on Art. 71 of the Labor Code of the Russian Federation, part 4, the worker is not obliged to explain the reason for breaking the contract.

In reality, there can be many reasons. For example, an employee is not satisfied with the working conditions, he does not get along well with the team, he does not like the attitude of management, he cannot cope with his job responsibilities and so on.

The procedure for terminating a TD on the initiative of a subordinate

As mentioned above, a citizen is required to submit a letter of application, which management undertakes to register.
The employee’s application is considered by personnel officials and directly by the employer.
A dismissal order is being prepared. It is done on a special form (unified form “T-8”). This form must be approved by State Decree. Committee of Statistics entitled “Approval of the form of a unified type of first accounting documents for work and payment.” The act must contain: the number of the created order, the date of publication, personal information about the worker, the position he holds and the reason for leaving. It is necessary to indicate the time of service and the date of final dismissal.
Next, the act is signed by the employer, and the resigning employee studies the order and puts his own signature in a special journal.
After this, the document is transferred to the Accounting department to draw up a note-calculation with the accruals due to the citizen.
The work book records information about dismissal in accordance with the definitions of the Labor Code of Russia.
Strictly on the last working day, the resigning citizen is given a work book, a certificate of income for the last 24 months (according to the approved form) and cash. Payments are made on the basis of Art. 84 clause 1 of the Labor Code of the Russian Federation. Accruals should include wages, vacation payments (if vacation was not used) and, if necessary, compensation.

If the resigning citizen was unable to leave on the last day (got to the hospital, etc.), then the head of the company is obliged to send him a notice indicating the time and date of receipt of the above-described documents and cash.

How to file a voluntary resignation (video)

You can learn more about the specifics of terminating a contract at the request of an employee from the following video:

Employer Notice

In order to notify your employer of the settlement, you must write a statement in your own hand. This does not require special forms or forms. This is not provided for by the Labor Code. It is permissible to write the application in any form on an A4 sheet with a regular pen with blue or black ink.

The header of the application must indicate the name of the enterprise and the full name of the owner of the enterprise. As well as personal data and position. Just below, strictly in the center, you need to write “Statement”. Next, “I ask you to fire ...” indicating the reason and date of payment. Please be sure to sign and date the document at the bottom. If you do not want or are unable to work out your assigned term due to health reasons, be sure to indicate this in your application.

The application must be submitted in person to the HR department or can be sent by mail. If you submit it yourself, be sure to make a copy on which the HR employee must sign to accept the document. If you send it by mail, then issue the letter as a registered letter or with a notification.

This is necessary to avoid trouble. After all, it is not always known with certainty whether the manager will agree to fire you. He may refuse on the grounds that the application was not received. For the same purposes, it is important to draw up and submit an application in accordance with the rules of the country's legislation.

Each manager has the right to put his own date in the resolution when signing the dismissal document. Pay attention to this in a timely manner!

Preparation of documents

After submitting an application letter at the employee’s initiative, management undertakes to prepare the following documents:

Order-resolution on the dismissal process.
A certificate of contributions to the insurance policy during work in this organization.
Certificate of amount wages over the past two years.
Certificate of length of employment in the company.
Work book with information about dismissal.

The order must strictly be created according to the generally accepted model mentioned above. It contains all the information from the application provided to the subordinate and a link to Art. 77 part 1 clause 3 of the Labor Code of the Russian Federation. At the end, the signature of the manager and the resigning employee is placed.

Calculation - features

The settlement process of a resigning citizen must be carried out on a general basis, taking into account the Labor Code of Russia. Termination of an employee's activities entails certain payments:

Amount earned for work, including the last working day. If there was arrears in wages, the manager is obliged to repay it in full.
Vacation payments. The full amount of vacation pay is accrued only if the employee has not used vacation in the current year. It also happens that vacation is used in advance. In this case, the accountant makes a recalculation, as a result of which a certain amount is withheld from the resigning employee.
Compensation payments are carried out only in situations where the reason for the settlement at the initiative of the employee was a change in working conditions, etc. This clause must be spelled out in the original contract. The amount of compensation is determined at the individual level and is always agreed with the employee.

Payments to the former employee must be made at the time of departure or no later than the next day.

Return of work book

Information about dismissal must be included in the employment documentation. It is filled out on the resigning person’s last work shift. Entries are made on the basis of the relevant “Resolution of the Ministry of Labor” No. 69 (November 2003). But also taking into account the Instructions for drawing up forms. The entry format looks like this:

column one – entry number;
column two – date of dismissal;
column three – the reason for the person’s calculation based on a certain article of the Labor legislation with information about the person providing the work;
section four - information about the application letter, thanks to which the employee resigns.

Frequently Asked Questions

Is rehearsal necessary?

This question is quite sensitive, because the result directly depends on the current situation. Based on Art. 80 part 3, a resigning person is not required to work 14 days. But at the same time, he must warn management in advance about the possibility of dismissal. This is obligated by the same article of the Labor Code.

First of all, this is necessary for the manager, since it is important to find a replacement for the employee. To bypass the service, you need to indicate in the application document for dismissal the appropriate reason for which the urgency of dismissal is required.

In this capacity there may be a deterioration in health, retirement, impairment labor rules or deterioration of working conditions by management. Only in this case is dismissal without service possible.

What to do if a person changes his mind about paying?

Article 80 part 4 suggests: if the settlement is initiated by an employee and the boss has no claims against him (does not seek dismissal), then the subordinate has the right to cancel the application. The worker can recall it during the working period, up to the last hour of work.

To do this, another statement is written that will refute the previous one. This is only possible when the manager has not yet hired a new subordinate. There are situations when a person first goes on vacation and quits immediately after it. This situation assumes that a change in decision is possible during the period until the day of official vacation begins.

What to do if the employer does not want to fire (let go)?

Yes, this happens too. To prevent this, it is important to record the submission of the application. That is, when submitting it to the HR department, you must make a copy and sign it by an authorized person. In this case, the company owner will not be able to retain the employee after 2 weeks of work.

If he still resists, you can safely go to court or the Labor Inspectorate. The reason could be, for example, that you are already expected at new job. There can be many reasons. The main thing is to know that management does not have the right to retain an employee by force.

Knowing all the intricacies of terminating an employment contract by a subordinate, observing all the requirements and conditions of the law, you can safely count on a positive result from the dismissal. Remember that the law of the Russian Federation provides for the degree of protection of each employee.

Termination of an employment contract means the end labor relations between employee and employer. In the current labor legislation, along with the concept of “termination of an employment contract,” there are other concepts that mean the end of labor relations between the parties to the employment contract: “termination of the employment contract” and “dismissal.” These concepts are close in meaning, but are not identical and differ in their legal content.

Thus, termination of an employment contract is the end of the labor legal relationship between the employee and the employer. "Termination of an employment contract" is the most common and broad concept, which covers all cases of termination of a concluded employment contract, termination of an employment relationship (by agreement of the parties; at the initiative of an employee or employer; at the request of authorized third parties; on grounds that, for some reason, exclude the possibility of continuing the employment relationship, etc.).

The concept of “dismissal of an employee” is, in fact, close to the concept of “termination of an employment contract”, but it does not cover cases of termination of an employment contract due to circumstances beyond the control of the parties.

“Termination of an employment contract” is a narrower concept; it is a voluntary termination of employment relations on the initiative of one of the parties to the employment contract or on the initiative of certain bodies that have the right to demand this termination. The difference between the concept of “termination of an employment contract” and the concept of “termination of an employment contract” is that the first covers both volitional unilateral and bilateral actions, as well as events, while the second covers only unilateral volitional actions.

An employment contract is terminated only if there are certain grounds for its termination and compliance with the rules for dismissing an employee on this specific basis. The basis for termination of an employment contract is a vital circumstance, which is enshrined in law as a legal fact necessary for terminating the employment relationship. Termination of an employment contract means simultaneously the dismissal of the employee.

The Labor Code of the Russian Federation devotes an entire chapter to termination of an employment contract - Chapter 13, which provides for the grounds and procedure for terminating an employment contract. At the same time, the Labor Code of the Russian Federation is not the only legal act regulating the termination of an employment contract. Thus, grounds for termination of employment contracts that differ from those given in the Labor Code of the Russian Federation are contained in a number of other federal laws.

It should be noted that the terms of the employment contract may also establish additional grounds for dismissal, if this is permitted by current legislation and does not contradict it. The Labor Code of the Russian Federation regulates the right of the parties to an employment contract in certain cases to include in the employment contract additional grounds for termination of employment relations (Articles 278, 307, 312, 347 of the Labor Code of the Russian Federation).

Termination of an employment contract is considered legal provided that, in addition to the existence of grounds provided for by law, the employer complies with the established procedure for terminating the employment contract, and also provides the guarantees upon dismissal established by law for certain categories of employees.

Thus, it is not allowed to dismiss an employee at the initiative of the employer during the period of his temporary disability and while on vacation (Part 3 of Article 81 of the Labor Code of the Russian Federation), pregnant women, as well as women with children under the age of three, single mothers raising a child under the age of 14 years (a disabled child under eighteen years old), other persons raising these children without a mother, at the initiative of the employer is not allowed (except for dismissal under clause 1, sub-clause “a”, clause 3, clause 5-8, 10 and 11 Article 81 of the Labor Code of the Russian Federation).

The dismissal of an employee under paragraph 5 of Article 82 of the Labor Code of the Russian Federation is carried out taking into account the reasoned opinion of the elected trade union body of this organization in accordance with Art. 373 Labor Code of the Russian Federation.

The employer has the right to terminate the employment contract no later than one month from the date of receipt of the reasoned opinion of the elected trade union body.

Taking into account the opinion of the trade union body is not required if an employee who is not a member of a trade union is fired or if there is a trade union in the organization, but the employee is connected by membership relations with another trade union that does not have a primary trade union body in this organization.

Representatives of employees participating in collective negotiations during the period of their conduct cannot be dismissed at the initiative of the employer without the prior consent of the body. Authorizing them for representation, except in cases of termination of an employment contract for committing an offense for which, in accordance with the Labor Code of the Russian Federation, other federal laws provide for dismissal from work.

Termination of an employment contract with an employee under 18 years of age at the initiative of the employer (except for cases of liquidation of the organization), in addition to compliance with the general procedure, is allowed only with the consent of the relevant state labor inspectorate and the commission for minors.

According to Art. 374 of the Labor Code of the Russian Federation, dismissal at the initiative of the employer in accordance with clause 2, sub-clause. "b" clause 3 and clause 5 of Art. 81 of the Labor Code of the Russian Federation, managers (their deputies) of elected trade union collegial bodies of an organization, its structural divisions (not lower than shop units and equivalent to them), who are not released from their main work, are allowed, in addition to the general procedure, for dismissal only with the prior consent of the corresponding higher elected trade union body.

At the same time, the provisions of part one of Art. 374 of the Labor Code of the Russian Federation are subject to application in accordance with the constitutional and legal meaning identified in the ruling of the Constitutional Court of the Russian Federation dated December 4, 2003 No. 421-O “In the case of verifying the constitutionality of the provisions of part two of Article 170 and part two of Art. 235 Labor Code of the Russian Federation and clause 3 of Art. 25 of the Federal Law “On Trade Unions, Their Rights and Guarantees of Operations”, which recognized as inconsistent with the Constitution the norms contained in federal laws and prohibiting the dismissal of an employee who has committed an unlawful act, which is a legal basis for termination of an employment contract at the initiative of the employer. The establishment in the Labor Code of the Russian Federation of guarantees for an employee upon his dismissal for repeated failure to perform labor duties without good reason, if he has a disciplinary sanction, represents a disproportionate restriction of the rights of the employer as a party to the employment contract and at the same time as a subject of economic activity and owner. This kind of restriction is not due to the need to protect the rights and freedoms enshrined in Art. 30 (part 1), 37 (part 1) and 38 (parts 1 and 2) of the Constitution of the Russian Federation, violates the code of economic (entrepreneurial) activity, property rights, distorts the essence of the principle of freedom of labor and therefore contradicts the requirements of Art. 8, 34 (part 1), 35 (part 2), 37 (part 1) and 55 (part 3) of the Constitution of the Russian Federation.

General grounds for termination of an employment contract.

The general grounds for termination of an employment contract are contained in Article 77 of the Labor Code of the Russian Federation

The grounds for termination of an employment contract are:

1) agreement of the parties (Article 78 of the Labor Code of the Russian Federation);

2) expiration of the employment contract (Article 79 of the Labor Code of the Russian Federation), except for cases where the employment relationship actually continues and neither party has demanded its termination;

3) termination of an employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation);

4) termination of an employment contract at the initiative of the employer (Articles 71 and 81 of the Labor Code of the Russian Federation);

5) transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position);

6) the employee’s refusal to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of the Labor Code of the Russian Federation);

7) the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (part four of Article 74 of the Labor Code of the Russian Federation);

8) refusal of the employee to transfer to another job, necessary for him in accordance with the medical certificate issued in the manner established by federal laws and other regulations legal acts RF, or the employer does not have the appropriate work (parts three and four of Article 73 of the Labor Code of the Russian Federation);

9) the employee’s refusal to be transferred to work in another location together with the employer (part one of Article 72.1 of the Labor Code of the Russian Federation);

10) circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation);

11) violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation or other federal law, if this violation excludes the possibility of continuing work (Article 84 of the Labor Code of the Russian Federation).

An employment contract may also be terminated on other grounds provided for by the Labor Code of the Russian Federation and other federal laws.

Termination of an employment contract by agreement of the parties presupposes the mutual desire of the employee and employer to terminate the employment contract (Article 79 of the Labor Code of the Russian Federation). The employment contract is terminated within the period agreed upon by the parties, that is, at any time. An agreement to terminate an employment contract does not exclude the possibility of dismissing an employee due to at will or, if there are grounds for this, at the initiative of the employer.

Termination of an employment contract at the initiative of an employee presupposes the desire of one party (the employee) to terminate the employment contract, and the employer is obliged to terminate relations with the employee upon expiration of the notice period.

An employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless a different period is established by the Labor Code of the Russian Federation or otherwise federal law. The specified period begins the next day after the employer receives the employee’s resignation letter.

By agreement between the employee and the employer, the employment contract can be terminated before the expiration of the notice period for dismissal.

In cases where the employee’s application for dismissal on his initiative (at his own request) is due to the impossibility of continuing his work (enrollment in an educational institution, 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, terms of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee’s application.

Before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out unless another employee is invited in his place in writing, who, in accordance with the Labor Code of the Russian Federation and other federal laws, cannot be denied an employment contract.

Before the expiration of the notice of dismissal, the employer is not deprived of the right to dismiss the employee if he has committed an offense that is grounds for dismissal.

Upon expiration of the notice period for dismissal, the employee has the right to stop working. On the last day of work, the employer is obliged to issue the employee a work book and other documents related to the work, upon the employee’s written application, and make a final payment to him.

If, upon expiration of the notice period for dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues.

The right to terminate an employment contract at the initiative of an employee is given not only to an employee who has entered into an employment contract for an indefinite period, but also to an employee working under a fixed-term employment contract.

If an application for termination of an employment contract is submitted by an employee under 18 years of age, it is necessary to first obtain the consent of the relevant state labor inspectorate and the commission for minors.

Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004 contains a provision explaining to the courts the issues of application of legislation governing the termination of an employment contract at the initiative of an employee concluded for an indefinite period, as well as a fixed-term employment contract (clause 3 of Article 77, Article 80 of the Labor Code of the Russian Federation ). Please keep the following in mind:

a) termination of an employment contract at the initiative of an employee is permissible in the case where filing a letter of resignation was his voluntary expression of will. If the plaintiff claims that the employer forced him to submit a resignation letter of his own free will, then this circumstance is subject to verification and the responsibility to prove it rests with the employee;

b) the employment contract can be terminated at the initiative of the employee and before the expiration of the two-week notice period for dismissal by agreement between the employee and the employer.

An employment contract can be terminated at the initiative of the employer in the following cases:

1) liquidation of an organization or termination of activities by an individual entrepreneur;

2) reduction in the number or staff of employees of an organization or individual entrepreneur;

3) the employee’s inconsistency with the position held or the work performed due to insufficient qualifications confirmed by certification results;

4) change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);

5) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;

6) a single gross violation by an employee of labor duties:

a) absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);

b) the employee appears at work (at his workplace or on the territory of the organization - the employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication;

c) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;

d) committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) a violation by an employee of labor safety requirements established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of such consequences;

7) commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer;

8) an employee performing educational functions has committed an immoral offense that is incompatible with the continuation of this work;

9) the adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;

11) the employee submits false documents to the employer when concluding an employment contract;

12) has become invalid.

13) provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization;

14) in other cases established by the Labor Code of the Russian Federation and other federal laws.

The procedure for certification (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers.

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job) which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.

Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer.

It is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary incapacity for work and while on vacation.

When considering a case on reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.

When considering cases of reinstatement at work, it should be borne in mind that when implementing the guarantees provided by the Labor Code of the Russian Federation to employees in the event of termination of their employment contract, the general legal principle of the inadmissibility of abuse of rights, including by the employees themselves, must be observed. In particular, it is unacceptable for an employee to conceal a temporary disability during his dismissal from work or the fact that he is a member of a trade union or the head (his deputy) of an elected trade union collegial body of an organization, its structural divisions (not lower than shop units and equivalent to them), not released from their main job, when the decision on dismissal must be made in compliance with the procedure for taking into account the reasoned opinion of the elected trade union body of the organization or, accordingly, with the prior consent of a higher elected trade union body.

If the court establishes that the employee has abused his right, the court may refuse to satisfy his claim for reinstatement at work (while changing, at the request of the employee dismissed during a period of temporary incapacity, the date of dismissal), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of unfair actions on the part of the employee (clause 27 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004).

By general rule, the parties cannot include in the employment contract additional grounds for dismissing employees other than those provided for by law, since this can be considered as a reduction in the level of guarantees for employees. In accordance with Part 2 of Art. 9 of the Labor Code of the Russian Federation, employment contracts cannot contain conditions that limit the rights or reduce the level of guarantees of employees in comparison with those established by labor legislation and other regulatory legal acts containing labor law norms. If such conditions are included in the employment contract, they are not subject to application.

Termination of an employment contract at the initiative of an employer with pregnant women is not permitted, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur.

Part 1 art. 261 of the Labor Code of the Russian Federation prohibits the dismissal of pregnant women at the initiative of the employer. The ban on dismissal applies to all grounds for dismissal at the initiative of the employer, specified both in the Labor Code of the Russian Federation and in other federal laws.

The dismissal of a pregnant woman for other reasons not related to the employer’s initiative, including due to circumstances beyond the will of the parties to the employment contract (Article 83 of the Labor Code of the Russian Federation) and in violation of the rules for hiring (Article 84 of the Labor Code of the Russian Federation), is carried out in in general order.

If a fixed-term employment contract expires during a woman’s pregnancy, the employer is obliged, upon her written application and upon provision of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of the pregnancy. A woman whose employment contract was extended until the end of her pregnancy is obliged, at the request of the employer, but not more than once every three months, to provide a medical certificate confirming the state of pregnancy. If the woman actually continues to work after the end of her pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day the employer learned or should have learned about the end of the pregnancy.

An employment contract extended in this way, by virtue of the direct instructions of the law, does not cease to be fixed-term. At the same time, the woman is provided with all the benefits to which she is entitled in connection with pregnancy, including the right to transfer to another job and to be released from work while maintaining average earnings if such a transfer is impossible.

It is permissible to dismiss a woman due to the expiration of an employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of an absent employee and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer before the end of her pregnancy (as a vacant position or a job corresponding to the woman’s qualifications, and a vacant lower-level position or lower-paid job), which a woman can perform taking into account her state of health. In this case, the employer is obliged to offer her all the vacancies that he has in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

Termination of an employment contract with women who have children under three years of age, single mothers raising a child under fourteen years of age (a disabled child under eighteen years of age), other persons raising these children without a mother, at the initiative of the employer is not allowed (with the exception of dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of part one of Article 81 or paragraph 2 of Article 336 of the Labor Code of the Russian Federation).

An employment contract is subject to termination due to the following circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation):

1) calling the employee to military service or sending him to an alternative civil service replacing it;

2) reinstatement of an employee who previously performed this work, by decision of the state labor inspectorate or court;

3) failure to be elected to office;

This basis applies to those employees who were not elected to the position a second time for the position they held, although they applied for it. If an employee has not submitted documents to be elected to a position, then he is dismissed due to the expiration of the employment contract under clause 2 of Part 1 of Art. 77 Labor Code of the Russian Federation.

4) sentencing of an employee to a punishment that precludes the continuation of previous work, in accordance with a court verdict that has entered into legal force;

5) recognition of the employee as completely incapable of working in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation;

The recognition of an employee as completely incapacitated may take place in accordance with a medical report issued by the body or institution competent to issue such a report.

6) death of an employee or employer - individual, as well as recognition by the court of an employee or employer - an individual as deceased or missing;

In accordance with Art. 45 of the Labor Code of the Russian Federation, a citizen may be declared dead by the court if at his place of residence there is no information about his place of stay for five years, and if he went missing under circumstances threatening death or giving reason to assume his death from a certain accident - in within 6 months.

7) the occurrence of emergency circumstances that impede the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a government body of the relevant constituent entity of the Russian Federation;

8) disqualification or other administrative punishment that precludes the employee from fulfilling his duties under the employment contract;

Disqualification is the deprivation of an individual of the right to occupy leadership positions in the executive body of a legal entity for a period of 6 months to 3 years. In addition to disqualification, there may also be deportation from the territory of the Russian Federation of a foreign citizen (or stateless person) who had an employment relationship with the employer.

9) expiration, suspension of validity for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, right to carry a weapon, other special right) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of the employee fulfilling his duties under the employment contract;

10) termination of access to state secrets if the work performed requires such access;

11) reversal of a court decision or cancellation (declare illegal) of the decision of the state labor inspectorate to reinstate the employee at work.

An employment contract is terminated due to a violation of the rules for its conclusion established by the Labor Code of the Russian Federation or other federal law, if violation of these rules excludes the possibility of continuing work, in the following cases:

conclusion of an employment contract in violation of a court verdict depriving a specific person of the right to occupy certain positions or engage in certain activities;

concluding an employment contract to perform work that is contraindicated for this employee for health reasons in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation;

lack of an appropriate education document if the work requires special knowledge in accordance with federal law or other regulatory legal acts;

concluding an employment contract in violation of a resolution of a judge, body, official authorized to consider cases of administrative offenses, disqualification or other administrative punishment that precludes the possibility of an employee fulfilling duties under an employment contract, or concluding an employment contract in violation of the restrictions, prohibitions and requirements established by federal laws relating to the involvement in labor activities of citizens dismissed from state or municipal service;

in other cases provided for by federal laws.

If a violation of the rules for concluding an employment contract established by this Code or other federal law is not due to the fault of the employee, then the employee is paid severance pay in the amount of average monthly earnings. If a violation of these rules is due to the fault of the employee, then the employer is not obliged to offer him another job, and severance pay is not paid to the employee.

Termination of an employment contract at the initiative of the employee is one of the most common forms of termination of employment relations. It has a number of nuances related to the notice period and the validity of the will to dismiss at one's own request.

Article of the Labor Code of the Russian Federation regulating the termination of an employment contract at the initiative of the employee

Termination of an employment contract at the initiative of the employee is regulated by the general norm of paragraph 3 of Art. 77 Labor Code RF and is detailed in Art. 80 Labor Code of the Russian Federation. The latter regulates:

procedure and timing of notification to the employer;
the possibility of changing the term of termination of employment relations;
the company’s obligation to dismiss an employee in a number of cases within the period specified by him;
the right to withdraw an application;
the procedure for continuing the contract if it has not been terminated;
employer's responsibilities upon dismissal.

The provisions of the article provide for both the employee’s right to stop working on the day the notice expires, and the opportunity to continue working by recalling it. If the employer did not issue an order and the employee did not leave workplace, the agreement continues in force. An employee’s return to work before an order or notice of dismissal is issued means the continuation of the employment relationship.

The procedure for registering dismissal. Working off

The procedure for terminating an employment contract at the initiative of an employee provides for mandatory notification to the employer 2 weeks in advance, unless a different period is established for a specific category of employees by law. For example:

persons who are on probation must notify 3 days in advance (part 4 of article 71 of the Labor Code of the Russian Federation);
the head of the company must inform its founders about his resignation 1 month in advance (Article 280 of the Labor Code of the Russian Federation), etc.

After this, the employee continues to work as before until the warning period expires. The law does not exclude the possibility of sending such a statement while on vacation.

Dismissal at the initiative of an employee under the Labor Code of the Russian Federation is formalized by sending a notice, which must be officially received by the company according to the rules for legally significant messages. So the direction registered letter to the address specified in the Unified State Register of Legal Entities, even if it is not received by the organization, it will be properly sent. You can hand over such a document against signature to a company employee authorized to accept mail. Registering the application in the journal of incoming correspondence and obtaining a number will help track the expiration of deadlines in the event of a conflict.

The working period can be shortened by agreement of the parties. In this case, on the application for dismissal on a certain date, the manager’s resolution on dismissal at the moment proposed by the employee is affixed.

How to quit on the day you submit your application

Art. 80 of the Labor Code of the Russian Federation provides for a number of situations when dismissal will be possible on the day the application is sent or another day at the request of the employee. There are 2 groups of them:

related to the characteristics of the employee’s life;
associated with dishonest behavior of the employer.

The first are enrolling in studies, conscription into the army, and retirement. The second is the employer’s violation of any norms regulating labor relations, including the following norms:

Labor Code of the Russian Federation;
collective agreements;
labor contract.

The fact of dismissal before the expiration of the 2-week period does not indicate the illegality of the latter if there was an agreement between the parties to reduce the period (see the decision of the Kalininsky District Court of Chelyabinsk dated July 7, 2017 in case No. 2-1684/17).

Features of dismissal of civil servants at their own request

The labor activities of civil servants are regulated slightly differently than those of ordinary citizens. They do not enter into an employment contract, but a government contract, which can also be terminated at their own request. The application is also submitted as a general rule 2 weeks in advance, but there are more grounds for dismissal on the same day.

In Art. 36 of the Law “On the State Civil Service” dated July 27, 2004 No. 79-FZ (hereinafter referred to as Law No. 79-FZ) states that work is not required:

upon enrollment in an educational institution;
retirement;
transition to an elected position;
violation by the employer of the laws of the Russian Federation or the terms of the contract.

It is possible to withdraw the application, but another civil servant or citizen should not be invited to the position. Upon termination of the contract, the person is removed from the register of civil servants. Dismissal orders and work books indicate articles not of the Labor Code of the Russian Federation, but of Law No. 79-FZ. Upon dismissal, vacation pay must be paid, as well as underpaid parts of the monetary incentive, if it was provided for by regulations (see the resolution of the Omsk Regional Court dated January 29, 2018 in case No. 2-1737/17). For other compensation and severance pay upon dismissal on his own initiative, a civil servant in accordance with Art. 36 of Law No. 79-FZ has no right.

The procedure for terminating labor relations under the Labor Code of the Russian Federation

The standard procedure for dismissing an employee at the employee’s initiative includes the following steps:

writing an application;
working out;
calculation;
familiarization with the dismissal order;
receiving in hand a work book in which an entry is made about the termination of the employment relationship (Part 3 of Article 77 of the Labor Code of the Russian Federation must be indicated).

If the work book was not issued on time, it is possible to receive financial compensation for each day of delay. An employee has the right to ask for copies of all documents related to his work activity: dismissal orders, previously issued orders for transfers, promotions, bonuses, and others. They will also be required to formalize pension relations. In addition, he must receive a certificate of the amount of wages and other remunerations in the form approved by Order of the Ministry of Labor of Russia dated April 30, 2013 No. 182n, and, if necessary, can request Form 2-NDFL.

Carrying out calculations, issuing a bypass sheet and the possibility of deduction from funds due to the employee

When terminating an employment contract at the initiative of an employee, the employer must make a settlement with him. Financial relationships may involve mutual obligations. The employer has this:

calculation for the period worked;
compensation unused days vacations;
compensation if they are provided for in separate agreements or a collective agreement;
refund of funds overspent according to advance reports;
funds not paid as bonuses and other forms of monetary incentives.

The employee has:

unreturned amounts on advance reports;
return of part of the funds received in the form of vacation pay if he quits without working the time required for full payment of vacation pay.

Other requirements for an employee, for example, for compensation for harm, can be presented in court in accordance with the norms of the resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52. Thus, if the employer does not make a demand for the delivery of property transferred for use when signing a work order, the risk of loss of this property lies precisely with him, as he did not provide proper conditions for its storage (see paragraph 5 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 No. 52). In accordance with paragraph 6 of this resolution, the employer has the right to refuse to make such demands.

Sample application and date of dismissal

The dismissal of an employee at the initiative of the employee under the Labor Code of the Russian Federation occurs on the basis of his personal statement. The main details will be:

request to resign at your own request;
date of dismissal (if it differs from the general one, it must be confirmed by an explanation of the reason for which the employee should be dismissed earlier, and/or by the manager’s resolution).

If the application indicates a request to dismiss on the day the application is submitted, then reasoned reasons for this must be indicated:

enrollment in studies;
retirement;
violation by the company of labor legislation or documents regulating relations with employees (collective or employment agreement).

This explanation can be replaced by an agreement with the employer to determine a different date of dismissal.

The right to withdraw an application for termination of employment

Termination of an employment contract at the initiative of an employee under Article 80 of the Labor Code of the Russian Federation provides for his right to withdraw his application. This can be done on any day, even on the last day of work.

The only exception will be a situation in which another specialist has already been invited to replace this specialist, a written offer has been sent to him and the employment cannot be refused. Such cases arise when an employee is transferred from another company (Part 4 of Article 64 of the Labor Code of the Russian Federation). The Supreme Court of the Russian Federation, in its ruling No. 48-B08-6 dated July 11, 2008, indicated that the right to recall is terminated only if the employer’s obligation to hire another person is based on the law.

The review must be sent in such a way that it reaches the company before the expiration of the statutory 2-week period or agreed upon by the parties. When proving the direction of the revocation, it must be taken into account that the fax protocol data can be falsified, and entries in the registration log can be made retroactively. Then the application may simply be refused. Therefore, it is better to send the document by mail with acknowledgment of receipt so that it reaches the company within the prescribed period. Failure to comply with this requirement may be considered as an abuse of rights (see the decision of the Myskovsky City Court Kemerovo region dated December 21, 2017 in case No. 2-794/17).

Cases of defect of will when writing an application

The Plenum of the Supreme Court of the Russian Federation in paragraph 22 of Resolution No. 2 of March 17, 2004 draws attention to the fact that the decision to terminate an employment contract must be based on a valid expression of will. In practice, employers use measures of psychological and even physical violence, demanding that such a document be written. Evidence of such pressure may be dismissal without service. If the court can prove the presence of pressure, the employee will be reinstated at work.

The onus is on the employee to prove the presence of pressure. In this case, the court is obliged to establish the following circumstances relevant to the case:

The actual situation in which the statement was written.
Application of measures of mental violence. At the same time, it is advisable to describe in the claim in what form and by whom the pressure was applied. A stressful condition, confirmed by medical certificates, will indicate the presence of pressure.
The presence of another valid expression of will. Witness testimony can be used here (see the decision of the Karasuk District Court Novosibirsk region dated February 20, 2017 in case No. 2-103/17).
The fact of filling out the dates in the application in your own hand. Sometimes they are entered by the employer on pre-prepared forms.

At the same time, the court also pays attention to the actions of the employee. Thus, the methodical filling out of the bypass sheet indicates the absence of the spontaneous nature of decisions and actions and the measured observance of the procedure for dismissal at the initiative of the employee (see the decision of the Zarechensky City Court of the Penza Region dated December 25, 2017 in case No. 2-1350/17).

The contract with the manager was terminated: features

Issuing an order and receiving a payment from the employee is not enough to fully comply with the dismissal procedure in the event of termination of employment with the head of the company. It is also necessary to make a decision of the body authorized to elect a director - the general meeting or board of directors. The length of time it takes to convene a meeting is one of the reasons for the longer notice period.

The application is submitted:

addressed to the chairman of the board of directors;
sole founder;
the person who, in accordance with the charter, presides over the general meeting.

After the termination of the employment relationship, the company needs to change information about the manager in the Unified State Register of Legal Entities. If this is not done in a timely manner or a decision on termination of powers is not made, then there is a need to file a claim to declare the employment relationship terminated (see the decision of the Nizhny Novgorod District Court of Nizhny Novgorod dated December 28, 2017 in case No. 2-15315/17).

"Golden Parachutes"

If the employment contract is terminated on the initiative of the employee, he does not have the right to payment of compensation - both those provided for by law (for example, if during the liquidation of an organization employees are not dismissed on this basis, but they are forced to write a statement of their own free will), and those included in the employment contract (so-called golden parachutes), unless otherwise specified in the labor or collective agreement.

Often the situation with such dismissal at one's own request without payment of compensation arises among company managers who, in the event of termination of the contract on the grounds provided for in Art. 278 of the Labor Code of the Russian Federation, have the right to payment of compensation in the amount of 3 salaries.

But there are other cases when the employment contract stipulates that in the event of dismissal, including at the initiative of the employee, a “golden parachute” will be paid. Sometimes the inclusion of such a provision in contracts is considered an abuse of rights on the part of the employer’s manager, and when he changes, in a situation where several managers are simultaneously dismissed at their own request, claiming the right to payment of significant amounts, the company’s activities may be blocked. The new manager refuses to pay, finding the situation abusive. Those dismissed go to court, the decision of which depends on the correctness of the execution of employment contracts and whether the manager has the authority to introduce rules on “parachutes” (see the decision of the Industrial District Court of Stavropol dated July 12, 2013 in case No. 2-2357/13).

On what grounds can you challenge voluntary dismissal?

The employment contract was terminated at the initiative of the employee, after which he goes to court and asks to be reinstated at work. The reasons for such a requirement may be:

Presence of pressure when writing an application.
Violation of the dismissal procedure, for example, the actual absence of an application (see the decision of the Vorkuta City Court dated July 25, 2016 in case No. 2-1618/16).
Failure to pay amounts due.
Failure to understand his labor rights and drawing up a resignation letter of his own free will in a situation where, if dismissed for other reasons (due to staff reduction, liquidation of the organization), he would have the right to compensation.
Presence of deception. For example, when a company is sold or terminated, which is not related to voluntary liquidation, workers are promised to be transferred to a newly registered enterprise, but after they write an application, employment relations are not restored. Thus, the decision of the Prikubansky District Court of Krasnodar dated October 23, 2017 in case No. 2-8646/17 considers a situation where an employee wrote a statement, being misled that it was necessary for personnel optimization. The court reinstated him at work.

The courts carefully examine all the circumstances that gave rise to such claims. Compliance with the procedure for terminating an employment contract at the initiative of the employee and the absence of pressure from the employer is intended to exclude the possibility of reinstatement at work through the courts and compensation for moral damage.

Termination of an employment contract means the end of the employment relationship between the employee and the employer. In the current labor legislation, along with the concept of “termination of an employment contract,” there are other concepts that mean the end of labor relations between the parties to the employment contract: “termination of the employment contract” and “dismissal.” These concepts are close in meaning, but are not identical and differ in their legal content.

Thus, termination of an employment contract is the end of the labor legal relationship between the employee and the employer. “Termination of an employment contract” is the most general and broad concept that covers all cases of termination of a concluded employment contract, termination of an employment relationship (by agreement of the parties; at the initiative of an employee or employer; at the request of authorized third parties; on grounds excluding any circumstances, the possibility of continuing labor relations, etc.).

The employer has the right to terminate the employment contract no later than one month from the date of receipt of the reasoned opinion of the elected trade union body.

General grounds for termination of an employment contract.

The general grounds for termination of an employment contract are contained in Article 77 of the Labor Code of the Russian Federation

The grounds for termination of an employment contract are:

1) agreement of the parties (Article 78 of the Labor Code of the Russian Federation);

3) termination of an employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation);

4) termination of an employment contract at the initiative of the employer (Articles 71 and 81 of the Labor Code of the Russian Federation);

5) transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position);

8) the employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer does not have the corresponding work (parts three and four of Article 73 of the Labor Code of the Russian Federation);

9) the employee’s refusal to be transferred to work in another location together with the employer (part one of Article 72.1 of the Labor Code of the Russian Federation);

10) circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation);

An employment contract may also be terminated on other grounds provided for by the Labor Code of the Russian Federation and other federal laws.

Termination of an employment contract by agreement of the parties presupposes the mutual desire of the employee and employer to terminate the employment contract (Article 79 of the Labor Code of the Russian Federation). The employment contract is terminated within the period agreed upon by the parties, that is, at any time. An agreement to terminate an employment contract does not exclude the possibility of dismissing an employee at his own request or, if there are grounds for this, at the initiative of the employer.

An employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless a different period is established by the Labor Code of the Russian Federation or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter.

By agreement between the employee and the employer, the employment contract can be terminated before the expiration of the notice period for dismissal.

In cases where the employee’s application for dismissal on his initiative (at his own request) is due to the impossibility of continuing his work (enrollment in an educational institution, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts, containing labor law norms, local regulations, terms of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee’s application.