77 Labor Code of the Russian Federation. Compensation upon dismissal by agreement of the parties
Official text:
Article 77. General grounds for termination of an employment contract
The grounds for termination of an employment contract are:
1) agreement of the parties (Article 78 of this Code);
2) expiration of the term of the employment contract (Article 79 of this Code), except for cases when the employment relationship actually continues and none of the parties has demanded their termination;
3) termination of the employment contract at the initiative of the employee (Article 80 of this Code);
4) termination of the employment contract at the initiative of the employer (Articles 71 and 81 of this Code);
5) transfer of an employee at his request or with his consent to work for another employer or transfer to elective work (position);
6) refusal of the employee to continue work in connection with a change in the owner of the property of the organization, with a change in the jurisdiction (subordination) of the organization or its reorganization, with a change in the type of state or municipal institution (of this Code);
7) refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);
8) the employee's refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer (parts three and four of Article 73 of this Code);
9) the employee's refusal to be transferred to work in another locality together with the employer (part one of Article 72.1 of this Code);
10) circumstances beyond the control of the parties (Article 83 of this Code);
11) violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code).
An employment contract may also be terminated on other grounds provided for by this Code and other federal laws.
Part three is no longer valid. - Federal Law of June 30, 2006 N 90-FZ.
Lawyer's comment:
This article provides general grounds for terminating an employment contract, i.e. grounds applicable to all employees, regardless of their category. The norms contained in this article, in some cases, are of a reference nature. This means that, for example, upon termination of an employment contract by agreement of the parties, upon dismissal of an employee of his own free will or at the initiative of the employer, articles 78-80 or 71, 81 of the Labor Code are applied, respectively. According to paragraph 2 of Article 77, fixed-term employment contracts are terminated upon the expiration of the term of the employment contract (paragraph 2 of Article 58, Article 79 of the Labor Code), except in cases where the employment relationship actually continues and neither of the parties has demanded their termination. Article 79 of the Labor Code provides for the procedure for terminating a fixed-term employment contract, and also specifies the circumstances under which a fixed-term employment contract is subject to termination (for example, the completion of a certain job, the expiration of a certain season). An entry in the work book on the dismissal of an employee after the expiration of a fixed-term employment contract must be with reference to paragraph 2 of Article 77.
If at the end of the term of the fixed-term employment contract the employee continues to work and none of the parties to the contract has demanded its termination, such a contract is transformed into a contract concluded for an indefinite period. The legislator emphasized that the requirement to terminate the employment relationship must come either from the employee or from the employer and before the expiration of the fixed-term employment contract. Such an agreement can be terminated only when there are other grounds for this. When terminating an employment contract in connection with the transfer of an employee at his request or with his consent to work with another employer (), paragraph 5 of Article 77 applies. The same paragraph contains another reason for terminating an employment contract - transfer to an elective position. To apply this basis, an act of electing this employee to the appropriate elective position is required. Since article 77 contains two independent grounds for dismissal, the employee's work book should contain a reference to paragraph 5 of this article, but with the obligatory clarification of the wording of the reason for dismissal.
Paragraph 6 of Article 77 provides for three grounds for refusing to work in connection with a change in the owner of the property of an organization (enterprise), a change in the jurisdiction (subordination) of an organization (enterprise), reorganization of an organization (enterprise) (). When an employee is dismissed on this basis, an entry in the work book should not only be with reference to paragraph 6 of this article, but with a specification of the reason for such a refusal (change of ownership of the property of an organization (enterprise), change of jurisdiction, reorganization). If the employee refuses to continue working due to a change in the terms of the employment contract determined by the parties (), dismissal is possible only if the employee was offered the appropriate job, but he refused it or if there was no such job. However, if another job was, but was not offered to the employee, then such a dismissal may be declared illegal by the court.
When resolving cases on the reinstatement of persons whose employment contract was terminated under paragraph 7 of Article 77 of the Labor Code (refusal to continue work due to a change in the terms of the employment contract determined by the parties), or on the recognition of illegal changes in the terms of the employment contract determined by the parties when the employee continues work without changing the labor function (Article 74 of the Labor Code), it must be taken into account that, based on Article 56 of the Code of Civil Procedure, the employer is obliged, in particular, to provide evidence confirming that the change in the terms of the employment contract determined by the parties was the result of changes in the organization of labor or in the organization production, for example, changes in equipment and production technology, improvement of jobs based on their certification, structural reorganization of production, and did not worsen the position of the employee compared to the terms of the collective agreement, agreement. In the absence of such evidence, the termination of the employment contract under paragraph 7 of Article 77 or the change in the terms of the employment contract determined by the parties cannot be recognized as legal.
Paragraph 8 of Article 77 is supplemented with a new ground for terminating an employment contract - the absence of an appropriate job in the organization, if the employee, in accordance with medical indications, needs to be transferred. At the same time, subparagraph "a" of paragraph 3 was excluded from Article 81 of the Labor Code, which provided for the termination of the employment contract at the initiative of the employer in cases of inconsistency of the employee with the position held or work performed for health reasons. At the same time, the issue of severance pay was resolved. If the employee refuses to transfer due to the employer moving to another locality (Part 1 of Article 72.1 of the Labor Code), the employee is paid a severance pay in the amount of two weeks of average earnings (Article 178 of the Labor Code). Paragraphs 10 and 11 of Article 77 are by reference. Therefore, when an employee is dismissed, references to these norms are never made either in the order or in the work book.
In accordance with Part 2 of Article 77, an employment contract may also be terminated on other grounds provided for by the Labor Code and other federal laws. Additional grounds for terminating an employment contract for certain categories of employees are given in Section XII of the Labor Code.
Termination of an employment contract between an employee and his employer is carried out on the basis of the Labor Code of the Russian Federation. For dismissal of one's own free will, Article 77, paragraph 3, part 1 is provided, which contains all the information on the implementation of this procedure.
Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
It's fast and IS FREE!
What means
Upon dismissal of one's own free will, Article 77, paragraph 3, part 1 is the basis for all actions. It gives the employee the right to terminate the employment relationship based on personal motives, since employment in the Russian Federation cannot be forced.
The article also states that after writing a letter of resignation, the employee must work for a certain period, for which he puts all his affairs in order, in order to transfer them to the receiver. The employer during the working time is looking for a new candidate for the position.
After the end of the work, the already former employee is given his work book in his hands, in which the representative of the personnel department made the corresponding entry. From this point on, all working relations between the parties are over.
Dismissal procedure
The procedure for dismissal at the request of an employee occurs in several stages:
- The employee draws up a letter of resignation and gives it to the employer.
- If necessary, compliance with the period of working off, appointed by the head, not exceeding 14 days.
- Issuing a notice of dismissal.
- Settlement with the employee, the issuance of all due payments to him.
- Issuance of a work book in person, with the relevant entries.
How to write an application and its example
The application for dismissal of one's own free will is drawn up by the employee himself. It does not have an established form or form, but is always drawn up according to one template. You can write an application both by hand and in printed form, on a sheet of white paper, A-4 format.
Mandatory details:
- FULL NAME. and position of the person in whose name the application is submitted;
- FULL NAME. and the position of the employee himself;
- reason for dismissal (voluntarily);
- the date of dismissal, that is, the last day of working off (it is important to remember that the preposition "from" before the date is not recommended to use, in order to avoid disagreements);
- date of creation of the application;
- employee's signature.
Writing Sample:
Order
As soon as the term of working off ends, the employer draws up an order for his dismissal. After it is signed by the head, the employee is officially considered dismissed from his position.
To issue an order, a unified form is used (- upon dismissal of a group of employees).
Each organization has the right to modify the form, for its own convenience, as long as all required fields are present:
- name of company;
- OKPO code;
- number and date of the document;
- date and number of the employment contract under which the employee was hired;
- the date from which the employee is considered dismissed;
- FULL NAME. employee, his personnel number;
- the name of his position and structural unit;
- grounds for termination of the employment contract (Article 77, paragraph 3, part 1);
- grounds for dismissal (personal statement);
- signatures of the head of the organization and the employee himself.
Sample entry in the labor
The final stage in the dismissal of all employees is the issuance of a work book in which the relevant entries are first made confirming the fact of official employment and the work experience of a person.
What data is entered in the work book:
- full name of the employing organization;
- date of employment;
- what position the employee was hired for;
- grounds for admission;
- date of dismissal;
- reason for dismissal;
- on what basis the dismissal was made;
- employer stamp;
- signature of a representative of the personnel department;
- employee's signature.
Term
The entire process of dismissal of an employee at his own request lasts a certain period, which begins from the moment the application is accepted.
After the employee has received a decision to leave work, he begins working off, which lasts 14 days, if he is on probation - 3 days.
By mutual agreement of the parties, the period of working off can be reduced by several days, but the employer does not have the right to extend working off.
What to do if you don't sign
The manager is not always ready to let go of a valuable employee, so there may be problems with signing a letter of resignation. If, nevertheless, such a situation has arisen, you should always remember that in this matter the legislation always stands on the side of the employee. The employer has no right to detain him at the workplace longer than required.
In fact, the signature of the management on the application is not a prerequisite for dismissal.
If the employer refuses to accept the application, then all the same, the employee from the next day, after writing it and warning the manager about his intentions, enters the prescribed working off, and after two weeks should be free.
If, after 14 days, the employee was not paid the calculation due to him and the work book with all the required records was not returned to his hands, such an action will be considered a gross violation of the law, and in double size.
In such a situation, you can sue the organization in court, which will definitely be on the side of the employee.
Also, do not be afraid of the threats of the authorities that the dismissal will be made on the basis of an article for violation. If there were no misconduct on the part of the employee or the statute of limitations has expired, he does not have the right to do so, which is also punishable.
How to revoke
During the working period, an employee who leaves of his own free will has the right to change his mind and withdraw the application at any time. To do this, you must write another application, which expresses a desire to cancel the decision.
It also has a free form, it can use such wording as, for example, “Please consider my application dated __.__.__ invalid ...”, “Please withdraw my application for resignation from __.__.__ ...”.
The only caveat is that it will be impossible to withdraw the application for dismissal if a new candidate has already been appointed to the vacant seat, who was dismissed from the previous position by transferring to a new position. If such a situation occurs, then the employee will be fired without fail.
How to avoid working out
Despite the fact that a warning of the intention to terminate the employment relationship must come from the employee two weeks from the date of his actual departure, there are situations in which you can quit without working 14 days.
This is possible if:
- the employee is on probation, then the duration of his working off does not exceed 3 calendar days;
- there was a conflict in which the employer was guilty, violating the law, or exceeding his authority. In the event of such a situation, the employee can be dismissed on the day he wishes;
- both parties mutually decided that the period of working off would be reduced or completely canceled. Situations can be different, for example, the employer can meet halfway, especially if he is sure that he will easily find a new employee for the vacant place;
- the employee decided to enter an educational institution and he has a document confirming this fact;
- a person with a disability, or children with disabilities, also has the right to quit without working 14 days, especially if he has a deterioration in his health;
- an employee is called up for military service;
- the spouse of the dismissed employee was sent on a long business trip to another locality;
- the employee can quit right during the sick leave, of course, documented, in which case the days of working off will coincide with the days the employee is absent from the workplace.
Features for a pensioner
In our state, upon reaching a certain age, all citizens are paid a pension, which makes it possible to stop working and go on a well-deserved rest.
As for the dismissal of a pensioner of his own free will, this procedure is the same as the termination of working relations with other employees.
The only difference is that a pensioner has the right to quit without working off, indicating in the application the reason "in connection with retirement." Such a privilege can be used only once, if after retirement a citizen gets a job again, then dismissal from it will be carried out in a general manner, that is, implying full working off.
The process of dismissal of one's own free will, if one acts in accordance with Article 77, paragraph 3, part 1, is an ordinary part of the labor relations carried out in each organization.
The legislation clearly distributed the obligations of the parties, so that each of them remained in their own interests, without infringing on the rights of others. Therefore, it is the observance of the correct actions that will always help to avoid controversial issues.
What compensation is due upon dismissal by agreement of the parties (1st paragraph, 1st part of article 77 of the Labor Code of the Russian Federation)? How does such a termination of the contract go, and how do you independently calculate all the necessary compensation?
Features of dismissal by agreement between the parties
Article 78 of the Labor Code of the Russian Federation.
Article 78 of the Labor Code of the Russian Federation says that you can terminate a contract with a person in this way at any time - even during the probationary period.
To dismiss a person on such a basis, it is necessary that one of the parties (employer or subordinate) express their readiness to carry out this procedure. That is, if the boss proposes to terminate the contract in this way, and the subordinate does not agree, then this is his right.
Important! Under Article 78, such termination of the contract can only be revoked by mutual agreement of the director and employee. If only one of the parties is ready to cancel the agreement, then its desire is not taken into account.
Dismissals under Art. 77 are suitable for those who do not want to work for 14 days, or have disagreements with their superiors. Often, leaving by agreement of the parties under Article 77 occurs when the director warned the employee late about the reduction.
Making a written agreement allows you to pay the subordinate all the necessary compensation to compensate for the delay. But one way or another, the person must indicate the requirement of appropriate compensation in his application for termination of the contract.
Termination of employment relationship
Article 77 of the Labor Code of the Russian Federation.
Care on this basis is convenient for the employee and the director. But how should the dismissal be properly executed by agreement of the parties under the Labor Code of the Russian Federation?
The procedure for stopping labor relations under article 77:
- The employee or boss expresses a desire to terminate the contract by agreement.
- A dismissal agreement is drawn up by agreement between the parties (preferably in writing).
- The agreement drawn up is recorded in a special journal for such documents.
- The subordinate is given his copy of the agreement against signature.
- Drafting and issuing notices of dismissal.
- The order is recorded in the journal.
- A person is notified of the content and execution of the decree against signature.
- On the designated date, the employee is fired and a settlement is made with him.
At the same time, it must be remembered that for some employees (managers, chief accountant, and so on) it is not necessary to indicate the condition for the payment of severance pay and other compensation (Part 3, Article 349.3 of the Labor Code of the Russian Federation).
There are no clear requirements for the execution of the agreement, so the director can draw up his own form of this document. Also, the manager may not sign the application for leaving the subordinate, if full mutual understanding has not yet been reached and the final text of the transaction has not been drawn up.
If it is impossible to familiarize the dismissed person with the order (he changed his mind about leaving, or did not come to work), then you need to draw up an act stating that the person refused or there is no way to show him the order. The same paper must also be issued if the employee has not taken his work book and the due cash compensation.
What payments are required by law?
Dismissal by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation) involves the accrual of compensation provided for by the contract to terminate the contract between the boss and the employee.
Important! If the subordinate does not agree with the head about the amount of compensation, then the director must charge him the required amount, which is indicated in the 140th article of the Labor Code of the Russian Federation, which he cannot dispute.
What compensation is due for this termination of the contract:
- compensation for all unused holidays (for the entire period of work);
- unpaid earnings (for the last month and all amounts withheld for the entire time of the device);
- compensation for termination of the contract (if it is provided for by agreement between the parties).
The last amount is paid only if its accrual is provided for by the regulations of the organization, and its issuance was specified in the agreement. Then the employee can sue the manager.
Important! The standard amount of compensation is equal to 3 times the average salary of a subordinate. But at the same time, the manager and the employee can agree on a lower or higher amount of compensation.
Upon dismissal by agreement between the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation), difficulties arise with the calculation of compensation for unused vacations. To calculate this amount, you must first find out the size of the average earnings.
Monthly payroll calculation
This value is used to calculate most of the compensation that is due upon leaving. Only for the correct result, you need to remember to subtract sick days, weekends and vacation days from the entire time you work in this organization.
Calculation procedure:
- Find out how many days a person has worked in the company.
- Add up all the salaries that the subordinate received for the entire period.
- Divide earnings by days worked.
The result is a value that is used to find out the amount of other refunds.
How to calculate the amount of compensation for unused vacation?
This compensation is due only to those who have left unspent leave.
Calculation procedure:
- Find out how many unused days are left for the entire period of work.
- Calculate your average monthly income.
- Multiply salary by vacation days.
The result is the amount that the boss is obliged to give to the subordinate.
What entry will be in the work book?
Sample record.
This document must be issued to the subordinate on the day the dismissal order is issued. But what should be put in the book when the contract is terminated by agreement?
What should be included in the document:
- number and number of record;
- under what article the person was dismissed (point one, part 1, 77th article of the Labor Code of the Russian Federation);
- issue date and order number.
If the employee could not receive this document, then he can come for it later, or authorize in writing to be sent by mail.
The personnel department must make a record of the issuance of a work book to the owner in case he loses it, and file a claim with the former employer.
- Chapter 15. GENERAL PROVISIONS
- Chapter 16. WORKING HOURS
- Chapter 17. GENERAL PROVISIONS
- Chapter 18 WEEKENDS AND NON-WORKING HOLIDAYS
- Chapter 19
- Chapter 20. GENERAL PROVISIONS
- Chapter 21. WAGES
- Chapter 22
- Chapter 23. GENERAL PROVISIONS
- Chapter 24
- Chapter 25
- Chapter 27
- Chapter 28. OTHER GUARANTEES AND COMPENSATIONS
- Chapter 29. GENERAL PROVISIONS
- Chapter 30. DISCIPLINE OF LABOR
- Chapter 31. GENERAL PROVISIONS
- Chapter 32
- Chapter 33. GENERAL PROVISIONS
- Chapter 34. LABOR PROTECTION REQUIREMENTS
- Chapter 35. ORGANIZATION OF LABOR PROTECTION
- Chapter 36
- Chapter 37. GENERAL PROVISIONS
- Chapter 38
- Chapter 39
-
Section XII. FEATURES OF LABOR REGULATION OF CERTAIN CATEGORIES OF EMPLOYEES
- Chapter 40. GENERAL PROVISIONS
- Chapter 41
- Chapter 42
- Chapter 43
- Chapter 44
- Chapter 45
- Chapter 46
- Chapter 47
- Chapter 48
- Chapter 48.1. PECULIARITIES OF LABOR REGULATION OF PERSONS WORKING FOR EMPLOYERS - SMALL BUSINESS ENTITIES, RELATED TO MICRO-ENTERPRISES (introduced by Federal Law of 03.07.2016 N 348-FZ)
- Chapter 49
- Chapter 49.1. FEATURES OF REGULATION OF THE LABOR OF REMOTE WORKERS (introduced by the Federal Law of 05.04.2013 N 60-FZ)
- Chapter 50
- Chapter 50.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES WHO ARE FOREIGN CITIZENS OR STATELESS PERSONS (introduced by Federal Law No. 409-FZ of December 1, 2014)
- Chapter 51
- Chapter 51.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES EMPLOYED IN UNDERGROUND WORKS (introduced by Federal Law No. 353-FZ of November 30, 2011)
- Chapter 52
- CHAPTER 52.1. PECULIARITIES OF REGULATION OF THE LABOR OF SCIENTIFIC WORKERS, HEADS OF SCIENTIFIC ORGANIZATIONS AND THEIR DEPUTIES (introduced by Federal Law No. 443-FZ of December 22, 2014)
- Chapter 53.1. PECULIARITIES OF REGULATION OF THE LABOR OF EMPLOYEES SENT TEMPORARYLY BY THE EMPLOYER TO OTHER INDIVIDUALS OR LEGAL ENTITIES UNDER THE LABOR AGREEMENT FOR EMPLOYEES (PERSONNEL) (introduced by Federal Law of 05.05.2014 N 116-FZ)
- Chapter 54
- Chapter 54.1. PECULIARITIES OF LABOR REGULATION OF ATHLETES AND COACHES (introduced by Federal Law No. 13-FZ of February 28, 2008)
- Chapter 55
- Section XIII. PROTECTION OF LABOR RIGHTS AND FREEDOM. REVIEW AND RESOLUTION OF LABOR DISPUTES. RESPONSIBILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW NORMS (as amended by Federal Law No. 90-FZ of June 30, 2006)
- Chapter 56. GENERAL PROVISIONS
- Chapter 57
- Chapter 58
- Chapter 59
- Chapter 60. REVIEW AND RESOLUTION OF INDIVIDUAL LABOR DISPUTES
- Chapter 61. CONSIDERATION AND RESOLUTION OF COLLECTIVE LABOR DISPUTES
- Chapter 62. RESPONSIBILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW
Article 77 of the Labor Code of the Russian Federation. General grounds for termination of an employment contract
//=ShareLine::widget()?>The grounds for termination of an employment contract are:
2) expiration of the term of the employment contract of this Code), except in cases where the employment relationship actually continues and none of the parties has demanded their termination;
5) translation an employee at his request or with his consent to work for another employer or transfer to elective work (position);
6) refusal of the employee to continue work in connection with a change in the owner of the property of the organization, with a change in the jurisdiction (subordination) of the organization or its reorganization, with a change in the type of state or municipal institution of this Code);
(as amended by Federal Law No. 55-FZ of April 2, 2014)
7) refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (part four article 74 of this Code);
8) the employee's refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer (part three And fourth Article 73 of this Code);
9) refusal of the employee to transfer to work in another locality together with the employer (part one article 72.1 of this Code);
11) violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing the work of this Code).
(part one as amended by Federal Law No. 90-FZ of 30.06.2006)
An employment contract may also be terminated on other grounds provided for by this Code and other federal laws.
Part three is no longer valid. - Federal Law of June 30, 2006 N 90-FZ.
Termination of the contract at the will of the employee
Article 77, paragraph 3 of the Labor Code of the Russian Federation empowers anyone to complete cooperation with a certain employer of their own free will. You can quit at any time, regardless of the situation. It is enough to notify the management of your dismissal 14 days before its date. For this, an application is written. Two weeks after the application is written, the contract terminates, and the relationship of the parties ends in accordance with Article 80 and paragraph 3 of Article 77 of the Labor Code of the Russian Federation. Employees have the opportunity to quit without having to work for two weeks, but the management of the organization must agree with such a decision. Such a dismissal is formalized differently - by agreement of the parties. If the employee leaves of his own free will, then he writes a statement in 2 weeks. At the end of the employment relationship, the manager is obliged to pay off the employee - to pay in full for his work, to compensate, if necessary, for unused vacation. And hand over your workbook. Consider the special circumstances that may arise when leaving of one's own free will within the framework of the norm of paragraph 3 of article 77 of the Labor Code of the Russian Federation. It is not uncommon for employers to force people to leave work on their own initiative, against their will. Such coercion is not acceptable by law. The resignation letter must be written voluntarily - this is important. An employee who was forced to leave his job, forcing him to write a statement, has the right to go to court. However, he will have to prove the fact of compulsion to dismiss. There are other exceptional situations. For example, when the contract is terminated earlier than 2 weeks pass. This can happen in two cases:
- A citizen cannot continue to work for objective reasons. Such, for example, as retirement, admission to a university, change of residence due to the transfer of a spouse to work or service. The employee must be ready to confirm such significant reasons with documents.
- The employer violated labor standards. rights or terms of the contract. If the fault of the employer in such violations is established by the court, labor. commission, trade union or control and supervision authorities, then the contract can be terminated within the period that the employee writes in his application.
What to do if the employer is against dismissal
There are situations when, due to a shortage of staff or for some objective or subjective reasons, management does not agree with the departure of an employee, preventing his attempts to apply. Such behavior of the employer, of course, is unlawful, but the employee may be confused, not understanding how to get out of this situation. Article 77 p 3 of the Labor Code of the Russian Federation gives any employee the right to quit at will. No motives of the employer should influence the will of the citizen. It is necessary to formalize the dismissal competently in accordance with the Labor Code of the Russian Federation, and then no actions (inaction) of the employer will allow the employee to stay at the place of work longer than necessary. Here is the algorithm of the employee's behavior if the employer prevents him from leaving by rejecting the application. First, you need to send a letter of resignation so that the manager cannot evade receiving it and certifying such receipt. This can be done in three ways, the features of each of which should be mentioned separately.
- The first way: to endorse the application at the secretariat or office of the organization, or another department that registers correspondence. It is important to keep a copy of the letter of resignation, on which the document number must be affixed. The date, surname, initials, signature and position of the office employee who accepted this application must also be indicated. This method is the easiest for a normal dismissal, and the most difficult if an employee is hindered when changing jobs.
- The second way: use the postal forwarding. You can send your resignation letter by registered mail or a letter with a declared value and an inventory of the attachment. Sending correspondence by mail is necessarily registered, and the citizen receives a receipt confirming the dispatch. In addition, you can send a letter with acknowledgment of receipt in order to know exactly when the employer received the application in hand, and to have documentary evidence of this. The only nuance that you need to know when sending an application by mail is that the manager will be officially warned of dismissal only the next day after receiving the letter. The two weeks that must be worked out before dismissal will begin to be calculated only from the specified period. Therefore, putting down the date of dismissal in the application, you must first clarify the date of delivery of the registered letter by mail.
- Third way: send a telegram. This option is also possible, and, as you know, the delivery time of telegrams is much shorter than the delivery time of a letter. An urgent telegram is delivered in 4 hours, an ordinary one in 8 hours. The telegram must fully contain the text of the application. It is also desirable to obtain for yourself a copy of it with a mark on the departure, date and seal.
- application to the workers' union;
- complaint to the Federal labor and employment service;
- a complaint to the prosecutor's office;
- lawsuit.
Dismissal in the absence of a written application
Paragraph 3 of Article 77 of the Labor Code of the Russian Federation allows dismissal from work on their own initiative only on the basis of a written application. The law is interpreted literally. The opinions of experts coincide with the conclusions based on judicial practice. Dismissal without a written application is illegal. With such a development of events, paragraph 3 of article 77 of the Labor Code of the Russian Federation and article 80 of the Labor Code of the Russian Federation are violated. The employment contract is terminated only by a written document submitted 2 weeks before the day of departure. For example, consider one of the litigation. The employee demanded to be reinstated in his position, as he was dismissed on the grounds provided for by paragraph 3 of Article 77 of the Labor Code of the Russian Federation, but did not express his will in writing. In the course of clarifying the details of the case, it turned out that the application was written on his behalf by another person. Since the examination of the handwriting confirmed that the employee dismissed of his own free will did not actually express such a desire, the court satisfied the claims and reinstated him in his position. So, if a person did not express his will by writing a letter of resignation, then the employer will not be able to dismiss him of his own free will - the court will always take the side of the employee, obliging the management of the enterprise to reinstate the unfairly dismissed person at work.
Registration of dismissal by agreement of the parties
Paragraph 1 of Article 77 of the Labor Code of the Russian Federation allows the completion of work. relationship by mutual agreement between the parties. The contract is terminated at any time if the parties reach an agreement. Usually such a dismissal is formalized in a separate document, which is called the “agreement on termination of labor. agreements." The Ministry of Labor specifies that this agreement can be signed at any time before the day of termination of labor. relations. That is, there is no need to work out 2 weeks, as required by the rules when leaving work at will. It is enough to put down the date in the document - the last working day and prescribe that the basis for termination is labor. A contract is an agreement between the parties. The agreement may also contain additional conditions: the amount of compensation to the employee upon dismissal, if any; the possibility of taking leave before dismissal; the obligation of the employee to transfer the affairs to his shift and train him; etc. The document is drawn up in two copies, one of which is taken by the employee. The second copy, signed by the parties, remains with the employer. It is worth mentioning the jurisprudence regarding the issues of dismissal by agreement. There are court decisions according to which, for dismissal under paragraph 1 of article 77 of the Labor Code of the Russian Federation, the mutual consent of the parties is enough, not necessarily supported by a written additional document. That is, the form of the agreement itself is not important. According to a number of judges, dismissal under paragraph 1 of article 77 of the Labor Code of the Russian Federation will be lawful, even if the employee simply writes a letter of resignation by agreement of the parties, and the employer issues an appropriate dismissal order. An important feature of dismissal by agreement is that it is impossible to cancel such an agreement unilaterally. If either the employee or the employer changes their mind about their decision, neither of them will be able to revoke the agreement. It can only be annulled by mutual agreement. When trying to restore work. relationship, one of the parties may send the other an application to cancel the termination agreement. The other party either agrees to the cancellation or gives a written reasoned refusal. Dismissal by agreement occurs on the basis of a standard order, which indicates that the employment relationship is interrupted on the basis of paragraph 1 of Article 77 of the Labor Code of the Russian Federation. The employee gets acquainted with the order against signature. In case of refusal to sign the order, a note about such refusal is made on it. After making a record of the end of work in the organization, the work book is also issued to the employee against signature (you need to sign on your personal card). The work book is stamped and signed. With such a dismissal, a salary is paid for the days of the month worked, material compensation for not using the vacation and other amounts due, if they are provided for by the labor or call. contract.
Dismissal when working conditions change
One of the grounds on which you can terminate the work. contract, the employee’s refusal to work further under changed labor conditions is considered (clause 7 of article 77 of the Labor Code of the Russian Federation). The organization may invite the employee to sign a labor change agreement. contract, which will contain information about the new working conditions. Objectively, working conditions may change for organizational or technological reasons: production technology will change, structural reorganization will take place, etc. If such changes are coming at the enterprise, the employer is obliged to warn his employees about this 2 months before the introduction of new working conditions. Employees must be informed in writing. With a general change in working conditions, the employer does not have the right to demand a change in labor. functions of individual employees, for example, changes in position or specialization. The employee may refuse to accept the new working conditions. contracts. In this case, the employer provides the employee with another position corresponding to his qualifications or a less paid position. If the employee does not agree or there is no suitable position in the state, then the head of the company dismisses the employee in accordance with paragraph 7 of article 77 of the Labor Code of the Russian Federation.
Changing the terms of an employment contract may cause the employee to disagree with the changed organizational or production conditions. According to the Labor Code of the Russian Federation (Article 74 Part 3), the employer must notify the employee in writing and offer him another possible vacancy that will correspond to his medical indications for work. If there are no such vacancies, or the employee refuses the proposed vacancy (position, job) - the employment contract is considered invalid and terminated - the Labor Code of the Russian Federation (Article 77, clause 7, part 1 - the employee's refusal to continue working activities due to for changes formed by one of the parties to the contract).
The whole process from the moment the working conditions change until the employee is refused is as follows:
1. Formation of new working conditions and execution of an order:
- creation and signing of the order;
- order registration;
- signing the final version of the order by the employees who prepared the documents;
- order updating and enforcement.
2. Familiarization of employees with upcoming changes occurs either when the employee is familiarized with the order, or by handing a personal notice, with the following steps:
- drafting a signed notice;
- delivery of notice to the employee;
- registration of notice;
- serving the notification form to the employee;
- attachment of the notice to the case.
Order and procedures accompanying the cancellation of an employment contract
The new conditions put forward at the initiative of the employer may not suit the employee, and no one has the right to force him to continue the employment relationship. He has the right to choose: either accept these conditions and continue working in accordance with them, or refuse and not continue working and relations with the employer. The time parameters for refusing to work under changed conditions are different and the methods of registration also differ:
1. Immediate refusal to work upon initial acquaintance with the order, or upon receipt of a written notice - the employee puts a mark on the order or notice.
2. Statement of refusal to work. It must be sent within 2 months, while the employee has the right to work in unchanged (previous) conditions. The employer must do the following:
- registration of the application in the accounting form (application registration log) on the day of its receipt with the assignment of a number;
- transfer of the application to the head;
- resolution of the head or official who has the right to change or terminate the labor activity of employees. It should contain the following solutions:
1. offer to transfer to another job
2. notification of the absence of other places
- sending documents to office work and storage by an employee responsible for document management.
How to make a transfer proposal
If the employee disagrees with the newly formed conditions, the employer is obliged to provide in writing all the information he has about the vacancies that are currently available in his area and in other areas, if this is prescribed in the employment contract or other agreements. Also, the employer is obliged to offer another job that meets the qualifications, or a lower position that will correspond to the state of health of the employee. At the same time, it is necessary to preserve the right of the employee to work without changing the conditions for 2 months if the refusal was received at the stage of the order or notification. Throughout the entire term, it is recommended to notify the employee about the possibilities of transfer or change of vacancy. In the absence of places or a final refusal, a dismissal order is formed (clause 7, part 1, article 77 of the Labor Code of the Russian Federation).
Forming an offer includes the following steps:
- drawing up a proposal in writing in two copies according to the model approved by the organization signed by the head. It must list the possible translation options, taking into account the above requirements and indicate the working conditions for them;
- registration of the proposal in the accounting form (application registration log) on the day of its receipt with the assignment of a number;
- acquaintance of the employee with the proposal indicating the date against signature on the copy of the employer;
Drawing up a notice of the absence of vacancies (work) for translation.
Making a notification will avoid disputes of misunderstandings under paragraph 7 of part 1 of Art. 77 of the Labor Code, if the employer does not have suitable places, and the employee does not agree to the new conditions. The steps are:
- drawing up a notice in 2 copies in the form approved for the employer's workflow and signing it by the head;
- registration of the notification in the accounting form (register of applications) on the day of its receipt with the assignment of a number;
- familiarization of the employee with the proposal indicating the date against signature on the copy of the employer, which avoids disputes and misunderstandings in the future;
- the received copy is sent for storage, or filed in the employee's personal file with the assignment of a number in the journal.
The dismissal procedure is carried out in case of refusal of the transfer offer, or in case of refusal of a new position. The following is the procedure for terminating the employment contract.
Algorithm for processing the termination of an employment contract:
1. An employee may immediately refuse a transfer offer by putting a corresponding mark on the written copy of the employer at the same time as receiving it.
2. An employee can write an application for refusal of job options (vacancies) offered by the employer:
- registration of the application, affixing the registration number both in the journal or in the accounting form, and duplicating it on the application;
- redirecting the application to the manager for a resolution (receiving a dismissal order;
- sending documents to office work and storage by the employee responsible for document management with the corresponding number.
Formation of an order to terminate the employment contract. dismissal procedure.
Termination of labor relations (agreement) must always be executed in the form of an appropriate order of the employer. The order forms must comply with the T-8 model, from the unified forms of primary documentation approved by the State Statistics Committee of the Russian Federation (05.01.04 resolution 1). The steps are:
- creating a draft order. The date, the number of the employment contract is indicated, in the line "Grounds" an entry is made on the basis of the T-8 form for document management, in the line "Document, number and date" a link is made to all documents that served as the basis for terminating the contract, namely: indicate change in working conditions (order), notification of the employee (a copy on which the employee’s refusal is affixed), a transfer offer (with the employee’s refusal of transfer proposals), or notification of the absence of a suitable workplace (vacancy);
- signing of the order by the head or authorized person;
- registration of an order to terminate the contract in the register of orders with the date stamped and the assignment of a registration number;
- acquaintance with the employee's signature with the order (part 2 of article 84 of the Labor Code of the Russian Federation);
- transfer of the order to cases on personnel, assigning a number and duplicating it in the lower left corner of the order. This document should be located separately from orders for the main activity.
Filling out the employee's personal card upon termination of the employment contract.
The filling form is approved by the State Statistics Committee and corresponds to the model T-2 (05.01.04 resolution 1). The filling steps are as follows:
- on the basis of a dismissal order, an entry is made in the employee's personal card in section XI;
- personal card pages are certified by the signature of the employee of the personnel department on page 4 of the T-2 form;
- familiarization of the employee with the records made, the grounds for termination of the contract and affixing his signature also on page 4 of the T-2 form;
- the personal card is sent for storage to the personnel department in a separate group.
Algorithm for issuing a note-calculation and the procedure for issuing a work book upon dismissal.
The form of the note-calculation is approved by the State Statistics Committee and corresponds to the model T-61 (05.01.04 resolution 1). It serves to calculate and finalize payments to the employee. The calculation is made in the accounting department, and the final version is compiled by an employee of the personnel service. The filling steps are as follows:
- filling in the front side of the note-calculation form with the signature of an employee of the personnel department;
- sending a note-calculation to the accounting department for calculating the final payments. When applying, it should be noted that upon dismissal on these grounds, the employee is entitled to a severance pay in the amount of 2 weeks of earnings under part 3 of Art. 178 TK.
Issuing a work book to an employee:
- its transfer is obligatory on the day of termination of the contract (dismissal);
- registration of an entry in it, in accordance with the exact wording set forth in the Labor Code of the Russian Federation;
- certification of records with the signature and seal of the head or the signature of the person who is responsible for maintaining this document and the seal of the head;
- confirmation and certification by the signature of the employee;
- issuance of a book with a receipt from the employee on receipt;
- entering information in the accounting book for moving behind work books and the signature of the employee in the accounting book.
Filling in data about persons who are subject to military registration.
Within 2 weeks, the employer is obliged to send to the military commissariat data and information about the dismissal of the employee, if he is subject to military registration. The date of registration of the dismissal, position, full name, family composition should be indicated. The message must contain information about the military rank and military specialization, the address and contact details of the local military unit of the employee responsible for military registration.
Information is provided in the form of an approved letterhead of the organization in a letter in the form provided for in the Methodological recommendations for maintaining military records (Appendix 9), developed by the General Staff of the Armed Forces of the Russian Federation in 2007. The procedure for filling out information is as follows:
- the data of the dismissed employee, subject to military registration, must be signed by the head, or by the responsible person in charge of the registration of citizens liable for military service;
- registration of information about the dismissal of an employee of this category in the register of outgoing documentation;
- sending information about the dismissal of an employee subject to accounting, and data to the commissariat.
