Termination of an employment contract at the initiative of the employee. Procedure for terminating an employment contract: step-by-step instructions

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 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 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 (with the exception of 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 workers 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 activity”, 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) 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);

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 at his own request or, if there are grounds for this, at the initiative of the employer.

Termination of an employment contract at the initiative of the 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 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 even 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.

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) making 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 an employment contract with them, 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 at the time of 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).

As a 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 workers 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 control 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 has been 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. In this case, 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) conscription of an employee for military service or sending him to an alternative civilian service that replaces 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 - an individual, as well as recognition by a 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.

The initiator of termination of the contract can be either the employer or the employee. We analyze in detail each basis of the procedure and briefly describe the rights and guarantees of the parties.

Read our article:

Reasons for termination of an employment contract: Labor Code of the Russian Federation

In the work book, most often in the dismissal record you can see a link to Article 77 of the Labor Code of the Russian Federation, which contains a complete list of conditions for terminating the contract. Some of the articles of Chapter 13 of the Labor Code contain only rules for dismissal, while others detail the reasons. For example, Art. 81 of the Labor Code of the Russian Federation contains cases that will allow a company to initiate the departure of an employee.

Agreement of the parties

Termination of an employment contract by agreement of the parties is provided for in paragraph 1 of Art. 77 Labor Code of the Russian Federation. This basis applies if neither party is interested in prolonging the relationship.

All agreements are fixed in writing in an additional agreement to the employment contract. It states:

date of dismissal;
compensation payments;
issuance of documents and earnings;
other conditions.

It is worth noting that you do not need to include everything in the agreement. If these conditions are already provided for by the code and they are fulfilled during the dismissal process, then they do not need to be written down. But if the employee is unable to receive a work book on the day of dismissal, the document can immediately indicate the employee’s desire to receive it by mail and indicate the specific address where to send it.

Despite the fact that both parties agree to dismissal, there is still only one initiator. If it is an employee, he writes a statement to the manager. If it is a company, then the manager sends an offer to the employee.

Expiration of the contract

This basis applies only to fixed-term employment contracts. In this case, the contract must indicate the date of dismissal, or describe the event the occurrence of which leads to the end of the term. An exception is the situation when the employee continues to work after the described date. In this case, the contract will automatically be considered unlimited.

The reason for expiration may be:

the last date of the contract has arrived;
exit of the main employee;
completing of the work;
end of the season.

The employee must be notified in writing of the date of termination of the contract no later than 3 calendar days in advance. An exception is if the reason for termination of the contract is the departure of the main employee. This is due to the fact that the main employee is not obliged to notify the employer about the date of return to work and dismissal occurs on the day of his return.

Own wish

Termination of an employment contract at the initiative of the employee is carried out according to clause 3 of Art. 77 Labor Code of the Russian Federation. The employee does not have to report on why he made such a decision. 2 weeks before the required date, he sends an application to the employer with a request for dismissal. At the discretion of the company, the working time may be reduced or canceled.

The employer has no right to prevent dismissal. If the employee was not dismissed after the regulated period, he can file a complaint with the labor inspectorate or the prosecutor's office.

Employer initiative

Termination of an employment contract at the request of the company combines a whole range of grounds. All of them are collected in Art. 71 and 81 of the Labor Code of the Russian Federation.

The fastest way for an employer to get rid of a new employee is during the probationary period. At the same time, an assessment of the beginner’s knowledge should be carried out and his weaknesses should be identified. The subject must be notified of unsatisfactory test scores and the intention to withdraw from the test. The notice period is 3 calendar days before the expected date.

Before starting the dismissal procedure if you fail to complete the probationary period, check your employment contract. If the date of termination of the TD falls outside the probationary period, the dismissal will be illegal.

Other reasons for dismissal under Article 81 Labor Code of the Russian Federation:

Liquidation of company;
inadequacy for the position held;
change of owner;
violation of labor duties;
other reasons for termination of an employment contract.

The grounds for termination are different for each case, and therefore the procedures are different. If we talk about liquidation and reduction, the reason will be the decision of the management team. These two dismissals are long-term and take at least 2 months. Since it is necessary to warn the staff at least 2 months in advance about the intention to dismiss.

Violations of labor duties and labor discipline must be documented, and relevant acts and orders drawn up.

Transfer to another employer

Also, one of the grounds for termination of an employment contract may be dismissal by transfer to another organization. This is possible by prior agreement between the two employers and the employee. In this case, the employee writes a letter of resignation in the order of transfer.

Many people mistakenly believe that such a transfer saves vacation time, but this is not the case. This could be possible if we were talking about internal transfer within one legal entity. But when transferring to another legal entity, there is no succession.

The reasons for termination of an employment contract which the parties cannot influence are presented in Art. 83 Labor Code of the Russian Federation. At the same time, both parties did not express a desire to terminate the relationship, but the occurrence of certain circumstances forces the termination of the contract. These include:

conscription for military (alternative) service;
death of an employee;
emergency situations;
medical ban on work in these conditions:
failure to be elected to office;
conviction and serving a sentence in prison;
disqualification;
confiscation of a license, driver's license and other special rights, if without them it is impossible to carry out work for a period of more than 2 months;
reinstatement of an illegally dismissed employee by a court, etc.

Procedure for terminating an employment contract

Depending on the reasons, the procedure may differ radically. The differences lie mainly in the stages of preparation for dismissal. Whereas after signing the order, the algorithm for all types of dismissal is the same.

Agreement of the parties

Depending on the initiator, the first stage will be either an application from the employee or an offer from the employer in writing or orally (step 1). The agreements reached as a result of negotiations are formalized in the form of an additional agreement to the employment contract (step 2).

Step 3. On the day of dismissal, a dismissal order is issued in form T-8 and signed by the manager and the employee.

Step 4. An entry is made in the Personal Card in section 11.

Step 5. An entry is made into the work book and it is issued to the employee.

Step 6. Calculation and payment of earned funds and compensation for unused vacation are made. Funds are transferred to the employee's account.

Steps 3 to 6 are the same for all grounds for dismissal.

Expiration of the contract

Step 1. Notifying the employee of the contract expiration date at least 3 days in advance.

Step 2. Obtaining a signature from the employee indicating receipt of the notification.

Employer initiative

If we talk about liquidation and reduction, the notice period is 2 months from the date of delivery to the employee. The reduction involves additional payments for staff.

Violation of labor duties and labor discipline requires more preparatory work. If we talk about absenteeism, then first a certificate of absence from work is drawn up. If you have been absent for more than one day, then there should be an appropriate number of acts. After the employee returns to work, it is necessary to request an explanation from him about the reasons for absenteeism. Avoiding explanation will not help avoid consequences. If you refuse to provide an explanation for your absence from work, another report is drawn up. It stipulates a refusal to provide explanations. An order is then issued to reprimand the employee. Afterwards it is possible to issue a dismissal order.

Circumstances beyond the control of the parties

Since there can be many reasons for terminating an employment contract that do not depend on the will of the parties and they are all different, the procedure also differs. But in most cases, dismissal requires the appropriate paper (military summons, medical report, death certificate). Based on such a document and the employee’s application, and in the event of the employee’s death, the application is written by one of the relatives, an order is issued in the T-8 form.

Grounds for termination of an employment contract at the initiative of the employee

The legal basis here will be the employee’s wishes expressed in the application. It is written 2 weeks before the date of dismissal, the countdown will begin from the date following the day of writing.

Often the employer prevents the dismissal of valuable employees. Therefore, it is better to get a mark on the copy of the document that the manager has received the application. Or send it by registered mail with acknowledgment of receipt.

Termination of an employment contract at the request of a company employee is considered part of the process of dismissal on one’s 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 wages on time and create acceptable working conditions.

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

Reason #1. The subordinate enters any 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 the new employer is not satisfied for one reason or another).
Reason #7. Creation by the employer of worse working conditions.
Reason #8. The company is moving to another location, but the employee is not happy with it.

If the employee interrupts the written agreement due to the above factors, he has every right not to complete 2 weeks of work. 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 a new person has not yet been approved for the vacated position. 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 of the 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, a 2-month conclusion of a document, or in the case when a person is on a 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 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

A fixed-term employment contract involves its preparation for a certain period of activity. For example, for several weeks or months, but not more than 5 years. This happens during seasonal work, for elective positions, in cases where it is necessary to temporarily replace a person (during 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 is required to 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, etc.

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 funds.

How to file a resignation at your own request (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 salary for the last 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 employee’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.

FAQ

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.

This may include deteriorating health, retirement, violation of labor rules, or worsening working conditions on the part of 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 the decision is possible during the period until the day of official leave 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 a 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.

Secures the unconditional right of the employee to terminate the employment contract at his own request unilaterally. This right does not depend on the type of employment contract, the nature of the labor function performed by the employee, or the legal status of the employer.

An employee has the right to terminate at his own request any employment contract, including a fixed-term employment contract, before its expiration, and at any time. At the same time, the possibility of terminating an employment contract before its expiration at the initiative of the employee is not related to the presence of valid reasons. He is only obliged to notify the employer about this in writing no later than two weeks in advance.

The head of the organization is obliged to notify the employer (the owner of the organization's property or his representative) in writing about the early termination of the employment contract no later than one month in advance (see Article 280 of the Labor Code).

An employee who has entered into an employment contract for a period of up to two months, as well as an employee engaged in seasonal work, are required to notify the employer in writing three calendar days in advance of the early termination of the employment contract (see Article 292, Labor Code). The specified period begins the next day after the employer receives the employee’s resignation letter. So, if an employee submitted a letter of resignation on June 1, then the two-week period expires on June 15. This day will be the last day of work (day of dismissal) (see commentary to Article 84.1).

2. The employee’s will to terminate the employment contract must be expressed in writing. A written form of resignation is required. An employee's oral statement about termination of an employment contract cannot serve as a basis for dismissal. The obligation of the employee provided for by the Labor Code to notify the employer of termination of the employment contract at his own request no later than two weeks (the head of the organization - one month in advance) means that he can do this for a longer period. Two weeks (month) is the minimum period within which an employee is obliged to notify the employer of his desire to terminate the employment relationship.

3. By agreement between the employee and the employer, the employment contract may be terminated before the expiration of the established notice period. Moreover, in this case, the basis for dismissal will be the employee’s own desire, and not the agreement of the parties provided for in paragraph 1 of Art. 77 TK. Termination of an employment contract by agreement of the parties is possible only when the employer’s consent to dismissal has legal significance and without such consent the employment contract cannot be terminated (see commentary to Article 78).

If the employee himself has expressed a desire to terminate the employment relationship and asks to be dismissed before the expiration of the established notice period, the employer’s consent to the termination of the employment contract itself does not play a legal role. It only matters for determining the specific date of dismissal.

If the parties have agreed to terminate the employment contract before the expiration of the established notice period, the employment contract is terminated on the day determined by the parties (clause 3, part 1, article 77 of the Labor Code).

In this case, it is very important not only the presence of the employee’s will to resign on his own initiative, but also the form of expression of such will. The agreement of the parties on early (before the expiration of a two-week period) termination of the employment contract must be expressed in writing, for example, in the form of an employer’s resolution on the application of the employee who requested dismissal from an earlier date.

An oral agreement between the parties cannot serve as such evidence. Judicial practice also testifies to this. Thus, the Supreme Court of the Republic of Buryatia rightfully recognized as unfounded the decision of the Railway Court, which refused gr. L. to be reinstated under the following circumstances.

On February 15, 2006, L. applied to her employer to resign of her own free will as of February 16, 2006, but the application was not signed. According to the employer, she will be fired after another candidate is found for her position. L. continued to work, but on February 20, 2006 she broke her arm and was hospitalized. After being discharged, she found out that she had been fired since February 16, 2006.

The Railway Court, where L. filed a claim for reinstatement at work, denied her claim, citing the fact that the employment contract was terminated within the period determined by the parties.

In overturning the decision of the Railway Court, the Supreme Court of the Republic of Buryatia quite correctly pointed out that in L.’s application there is no employer’s resolution that would confirm his consent to terminate the employment contract before the expiration of the notice period for dismissal, and, therefore, on the basis of this application it is impossible to make the conclusion that there was a bilateral agreement to terminate the employment contract before the expiration of the notice period for dismissal * (59) .

If the employer does not agree to terminate the employment contract before the expiration of the notice period, the employee is obliged to work for the established period. Early termination of work in this case violates labor discipline. Stopping work without notice of dismissal will also be a violation of labor discipline. An employee who leaves work without permission may be fired for absenteeism.

In turn, the employer does not have the right to dismiss the employee until two weeks have passed after filing an application to terminate the employment contract. This rule also applies to cases where the employee does not indicate a specific date of dismissal in the application. In other words, if in the resignation letter the employee did not indicate the date of termination of employment rights, then the general rule applies, i.e. dismissal takes place two weeks after submitting the application.

Judicial practice also comes from this. Thus, the Nizhny Novgorod Regional Court, considering the case of the voluntary dismissal of N., who filed an application without indicating a specific date of dismissal (i.e., did not intend to terminate the employment contract before the expiration of two weeks and did not raise the question of reaching an appropriate agreement with the employer), indicated that under such circumstances the employment contract could be terminated by the employer only upon expiration of the notice period, i.e. after two weeks from the date of filing the application * (60).

A similar decision was made by the Ryazan Regional Court, which recognized as justified the decision of the court of first instance to reinstate A., who on August 8, 2006 submitted a letter of resignation at his own request, assuming that he would be fired after a two-week period. However, he was fired by order of August 9, 2006 * (61)

4. In cases where the employee’s application for resignation at his own request is due to the inability to continue working (enrollment in an educational institution, retirement, sending a husband (wife) to work abroad, to a new place of duty), the employer is obliged to terminate the employment contract in the period specified in the employee’s application. The same obligation arises in the event of a violation by the employer of labor legislation and other regulatory legal acts containing labor law norms, local regulations, the terms of a collective agreement, agreement or employment contract.

It is necessary to keep in mind that these violations can be established, in particular, by bodies exercising state supervision and control over compliance with labor legislation, trade unions, labor dispute commissions, and the court (clause 22 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17 2004 N 2).

5. An employee can notify the employer of termination of the employment contract at any time, including during the period when he is absent from work for some reason (for example, during a period of temporary disability, while on vacation, on a business trip, etc. ). This is due to the main purpose of the notice of dismissal: to give the employer the opportunity to select a new employee. By notifying the employer about dismissal in advance, the employee provides him with such an opportunity. It doesn’t matter whether he is at work, on vacation or sick.

From the moment the resignation is submitted, the employer has the right to begin searching for a new employee. Therefore, all this time from the date of filing the application for resignation at one’s own request is counted towards the notice period for dismissal. If an employee on vacation requests dismissal before the expiration of the statutory notice period, and the employer agrees, dismissal is carried out within the period requested by the employee.

The employer has the right to terminate the employment contract with the employee upon expiration of the notice period for dismissal and in the event that the employee falls ill during the notice period, since the period of illness does not suspend the period after which the employee is subject to dismissal. Dismissal of an employee at his own request in accordance with his application is also possible during a period of temporary incapacity for work, since the initiative for dismissal comes from the employee, and not from the employer.

6. The employee’s decision to resign of his own free will must be an act of his free will and express a real desire to terminate the employment relationship. In this regard, the Plenum of the Supreme Court of the Russian Federation, in Resolution No. 2 of March 17, 2004, specifically explained that termination of an employment contract at the initiative of an employee is permissible in cases where filing a resignation letter 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 these circumstances are subject to verification and the responsibility to prove them rests with the employee (paragraph “a”, paragraph 22).

Any pressure from the employer, including the threat to fire him on his own initiative in cases where the employer had any reasons for this, can be considered as coercion to dismiss an employee at his own request. Otherwise, we cannot talk about termination of the employment contract at the initiative of the employee.

The Laginsky District Court of Elista came to this conclusion quite correctly, satisfying the claim for reinstatement of the citizen. U., who submitted her resignation of her own accord under pressure from her manager, who threatened to “ruin her work book” by dismissing her “under article” for losing a report and failing to submit it *(62) .

7. Part 4

An employment contract is a legal document that defines the relationship between the parties to the agreement - the employee and the employer. This document establishes certain guarantees for the employee, as well as the powers of the employer. The contract specifies all working conditions, wages, rights and obligations of the parties.

The conclusion and termination of an employment contract is carried out in written or oral form, in accordance with the requirements of the law. Termination of an employment contract can occur for a number of different reasons. The procedure for terminating an employment contract is provided for by law, and the concept of its termination includes termination of the contract at the initiative of the parties.

Grounds for termination of an employment contract

The legislation clearly states all the reasons why an employment contract may be terminated or amended. These include:

agreement of both parties;
expiration of the contract;
admission or conscription of an employee to military (or alternative) service;
termination of the contract at the initiative of the parties - employee or employer;
termination of the contract at the initiative of third parties (trade unions, parents or guardians in cases of working with minors);
transfer of an employee to another enterprise or institution, to an elective position;
the employee’s refusal to transfer him to another location or to work under different working conditions;
entry into force of a court decision, sentencing, sentencing to imprisonment;
the grounds specified and provided for in the contract.

Let's take a closer look at the main, most common reasons for termination of an employment contract.

Termination of a fixed-term employment contract

Termination of an employment contract with a specified period of validity is considered to be the end of this period. Notice of termination of such an employment contract must be provided to the employee at least three days before dismissal. An exception may be the expiration of a contract concluded for the duration of the performance of duties for another employee. In this case, the contract becomes invalid as soon as the employee enters the workplace. An agreement concluded for a season, that is, with seasonal workers, becomes invalid at the end of the season. A contract to perform a specific job ends when the work is completed. Early termination of a fixed-term employment contract can occur by agreement of the parties or on the initiative of one of them.

Agreement on termination of employment contract

An employment contract can also be terminated by agreement of the parties who entered into it. The date of the order to terminate the employment contract is discussed and agreed upon in advance. In such a case, the employee is not required to notify the employer of dismissal 2 weeks in advance. However, in order to indicate such a reason for termination of the contract, the consent of the employer is required, and the reason must be indicated in the employee’s application for termination of the employment contract.

Termination of an employment contract with a part-time employee occurs for the same reasons as for the main employee, and also has one additional basis - hiring in his place an employee for whom this work will be the main one.

Termination of an employment contract at the initiative of one of the parties

An employment contract can also be terminated on the initiative of one of the parties, for example, the employee. He has the right to do this at his own request, and is obliged to write a letter of resignation no later than two weeks before the planned date of dismissal.

Termination of an employment contract at the initiative of the employer may occur in the event of complete liquidation of the organization or enterprise, reduction of staff, inconsistency of the employee for the position held, or repeated gross violation of his duties without good reason.