Labor Code Article 77 paragraph 1. Termination of an employment contract by agreement of the parties

An employment contract can be terminated by agreement between the employee and the employer. Such dismissal is regulated by article 78 of the Labor Code of the Russian Federation. Find out what the law says and read expert opinions.

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What are the features of dismissal by agreement of the parties: Labor Code of the Russian Federation

Grounds for termination employment contract(TD) may be an agreement of the parties. The agreement of the parties means that the employee and the employer, who are the parties to the employment relationship, have come to a certain agreement. They decided to terminate the TD on terms that were acceptable to both parties.

What is the difference between dismissal by agreement and the usual

By mutual agreement, the TD can be terminated at any time. For example, when an employee is present at his workplace, is on any type of vacation (regular, unpaid, educational, child care), on sick leave, and so on.

The procedure for dismissal by mutual agreement often raises many questions from employers and personnel officers. Expert recommendations on the application of the dismissal article by agreement of the parties to the Labor Code of the Russian Federation will help to understand the sequence of the procedure.

TC dismissal by agreement of the parties: is the employee entitled to any additional payments, other than those guaranteed by law

Upon termination of the TD, the employee in without fail pay salaries, compensation for unused vacations, guaranteed allowances and the like.

Labor Code: dismissal by agreement of the parties does not oblige the employer to pay additional amounts to the employee, but such payments may be provided for in the text of a written agreement. Their size can not be tied to certain types of payments. For example:

• You can not indicate that compensation in the amount of three salaries will be issued.
• You can make the wording: "Pay compensation in the amount of 150 thousand rubles."

If the organization has collective agreement, it may provide for additional types of payments upon dismissal of employees.

★ The expert of "System Kadra" will tell you how to determine the amount and pay severance pay upon dismissal by agreement of the parties

Article of dismissal by agreement of the parties to the Labor Code of the Russian Federation: how it is applied in practice

It is possible to dismiss by agreement of the parties and legal means. For example:

1. An agreement is concluded between the employee and the employer to terminate the TD by agreement, this document must be prepared in writing.
2. The parties agree on the date of termination of relations.
3. The employee and the employer agreed on the basis for the termination of relations under paragraph 1 of Art. 77 (Article 78) of the Labor Code of the Russian Federation.
4. The document was signed by the parties simultaneously at the time of its conclusion.

The Labor Code, by agreement of the parties, Article 78 of the Labor Code of the Russian Federation does not regulate the special procedure for the procedure. But you can do it like this:

Step 1. After the conclusion of a written agreement, prepare an order.

Step 2. Based on the order, make an entry in the work book and duplicate it in the employee's personal card.

Step 3. On the day of termination of the relationship, give the employee a full calculation and documents that are related to work.

Positive aspects of dismissal by agreement of the parties: article of the Labor Code

For an employee

Termination of the TD by agreement between the employee and the employer has a number of advantages. So, for an employee, the article Labor Code by agreement of the parties, dismissal allows you not to work for two weeks, as in case of dismissal own will.

For the employer

Labor Code of the Russian Federation: dismissal by agreement of the parties is also beneficial for the employer, who does not have to coordinate the termination of the TD with the trade union organization. In addition, the agreement cannot be canceled unilaterally. This is the most conflict-free way to terminate an employment relationship, if you follow the procedure for dismissal.

The agreement of the parties means that the employee and the employer, who are the parties to the employment relationship, have come to a certain agreement on the termination of the TD on terms that suit both parties. Dismissal on this basis has a number of features and to a certain extent is beneficial for both the employee and the employer.

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according to paragraph 6 of Art. 77 of the Labor Code of the Russian Federation "refusal to continue work 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"

As we can see from the wording of this paragraph, the dismissal of an employee can be the result of three different reasons.

1. Change of the owner of the property of the organization. In other words, the organization passes into the hands of a new owner.

The new owner has the right to put his team of managers at the head of the company, dismissing the former directors, his deputies and chief accountant. Such a right is granted to him by paragraph 4 of Art. 81 and part 1 of Art. 75 of the Labor Code of the Russian Federation.

All other employees continue to work on the terms of the employment contract concluded with them upon employment. The new owner, like the new director, has no right to dismiss them. Based on Part 2 of Art. 75 of the Labor Code of the Russian Federation, a change in the ownership of the organization's property is not a basis for terminating employment contracts with employees not specified in Part 1 of Art. 75 of the Labor Code of the Russian Federation.

However, the situation may develop in such a way that one of the workers himself does not want to work in the new conditions. This is their right. Each employee has the right to apply for termination of the employment contract due to the unwillingness to continue working with the new owner.

Of course, the new owner of the company has the right to revise its structure and make changes to the staffing table, which may lead to a change in the essential terms of the employment contract for some employees and dismissal for downsizing for others. These issues can be resolved by the new owner on the basis of Parts 1–4 of Art. 73 of the Labor Code of the Russian Federation and paragraph 2 of Art. 81 of the Labor Code of the Russian Federation, but only after state registration transfer of ownership (i.e. after entering information about the new owner in the Unified State Register of Legal Entities).

2. Change of jurisdiction (subordination) of the organization. This is about transmission. state organization from one ministry or department to another, its transfer from federal to local and vice versa, etc. In this case labor Relations continue with all employees of the organization, including management (with their consent, of course) - part 5 of Art. 75 of the Labor Code of the Russian Federation.

3. Company reorganization (Article 58 of the Civil Code of the Russian Federation), i.e.:

· mergerwhen the rights and obligations of two or more legal entities are transferred to a newly established legal entity in accordance with the deed of transfer (Alfa LLC + Beta LLC = Gamma LLC);

· accession, when one legal entity is part of another and its rights and obligations are transferred to the latter in accordance with the deed of transfer (Alfa LLC + Beta LLC = Beta LLC);

· separationwhen the rights and obligations of one legal entity are transferred to newly established legal entities in accordance with the separation balance sheet (Alfa LLC = Beta LLC + Gamma LLC);

· selectionwhen one or more new legal entities leave the legal entity and a part of the rights and obligations of the reorganized legal entity is transferred to each of them in accordance with the separation balance sheet (LLC Alpha - LLC Beta = LLC Alpha and LLC Beta »);

· transformation when the organizational and legal form changes and the rights and obligations of the reorganized legal entity are transferred to the newly established legal entity in accordance with the deed of transfer (CJSC Delta = OJSC Delta).

During the reorganization, labor relations with employees also continue, and in this case, paragraph 4 of Art. 81 of the Labor Code of the Russian Federation also does not apply. Of course, during the reorganization, it is possible to change the organizational structure of the company and, as a result, change the staffing table.

Some positions (positions, professions) are modified, which leads to a change in the essential terms of the employment contract with the employee. In this case, the employer is obliged to act according to the rules provided for in Art. 73 of the Labor Code of the Russian Federation.

Other positions or professions become unnecessary and are removed from the staff list. Employees who held these positions or performed work in these professions are subject to dismissal due to staff reduction (clause 2, article 81 of the Labor Code of the Russian Federation).

An employment contract with other employees may be terminated only on the basis of their refusal to continue working.

In all cases considered, the law does not limit employees to any terms : everyone determines for himself the time he needs to look around and understand the situation. It is not required to warn the employer in advance, as in case of dismissal of one's own free will, therefore, it is necessary to dismiss the employee within the period specified by him in his application.

Documentation

1. A change in the status of an organization must be confirmed by a certificate of its registration in the State Register of Rights and an extract from the Unified State Register of Legal Entities.

2. The employee writes a statement about the refusal to continue work.

3. An order is issued with the wording: “dismiss due to refusal (or “in connection with refusal”, or “due to refusal”, but in no case “for refusal”) from continuing work in connection with a change in ownership of the organization’s property, paragraph 6 article 77 of the Labor Code Russian Federation»;

or “dismiss due to refusal to continue work in connection with a change in the jurisdiction (or subordination) of the organization, paragraph 6 of Article 77 of the Labor Code of the Russian Federation”;

or "dismiss due to refusal to continue work in connection with the reorganization of the organization, paragraph 6 of Article 77 of the Labor Code of the Russian Federation."

Base:1. Registration document (indicating reference details);

2. Application of the employee dated ... (date).

The method of dismissal of employees under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation "refusal to continue work due to a change in the essential terms of the employment contract"

In paragraph 7 of Art. 77 of the Labor Code of the Russian Federation there is a reference to Art. 73 of the Labor Code of the Russian Federation. It is in it that the possibility changes by the employer on their own initiative essential terms of the employment contract. This can happen, as stated in Part 1 of Art. 73 of the Labor Code of the Russian Federation, for reasons related to the change organizational or technological working conditions. At the same time, the labor function of the employee remains unchanged.

In part 2 of Art. 57 of the Labor Code of the Russian Federation lists the conditions of an employment contract that are recognized as essential, these are:

· place of work (indicating the structural unit);

· date of commencement of work;

· the name of the position, specialty, profession, indicating the qualifications of the employee or a specific labor function;

· the rights and obligations of the employee;

· the rights and obligations of the employer;

· characteristics of working conditions, compensations and benefits to employees for work in difficult, harmful and (or) dangerous conditions;

· the regime of work and rest (if it differs from the general rules established in the organization in relation to this employee);

· terms of remuneration (including the amount tariff rate or official salary of an employee, additional payments, allowances and incentive payments);

· types and conditions of social insurance directly related to labor activity.

In this situation, in fact, there is a change in the terms of the employment contract unilaterally. This is possible because due to objective reasons development of the company and therefore allowed by the Labor Code of the Russian Federation, namely Art. 73 of the Labor Code of the Russian Federation. But at the same time, it is necessary to fulfill a number of conditions provided for by this article.

First of all, the employer must either obtain the written consent of the employee to continue working on other conditions, or, if the employee does not agree, and the previous working conditions cannot be maintained, the employment contract can be terminated.

The legislator understands that the employee needs time to make a decision to continue working on other conditions or quit. In the event that a decision is made to dismiss, he again needs time to find another job for himself. Therefore, the employer, as a general rule, is obliged to notify the employee of the upcoming changes at least two months in advance, of course, in writing and against receipt. If the employer is an individual (including PBOYuL), the minimum notice period is 14 calendar days (Article 306 of the Labor Code of the Russian Federation), and for the employer - a religious organization - 7 calendar days before the introduction of new working conditions (Article 344 of the Labor Code of the Russian Federation).

A written notice is drawn up, as usual, in two copies, one of which is transferred to the employee, and the other remains with the employer. On the copy of the employer, the employee must sign the receipt of the notification (putting the date). If the employee refuses to sign, his refusal is activated. The act of refusal to receive a notification or to sign on it can be drawn up as a separate independent document in accordance with all the rules of office work, or can be made in a simplified form right on the notification.

The consent or refusal of the employee can be formulated directly on the notice (of course, in all cases under consideration, we are talking about the copy of the employer). But this is possible only when the employee makes a decision immediately, without hesitation.

The law does not specify exactly when the employee must give an answer, so it is quite possible that he will need exactly two months to think and on the last day he will inform the employer of his decision. Of course, now this decision can only be made in the form of a statement of consent or refusal.

If the employee agrees to continue working, a supplementary agreement, which should contain all the changes that have occurred.

In cases where the employee refuses to work in the new conditions, the employer, on the basis of part 3 of Art. 73 of the Labor Code of the Russian Federation is obliged in writing to offer him another job available in the organization that corresponds to his qualifications and state of health, and in the absence of such work - a vacant lower position or lower-paid work that the employee can perform taking into account his qualifications and state of health.

If the organization does not have a corresponding vacancy, the employee is subject to dismissal under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation.

Thus, Art. 73 of the Labor Code of the Russian Federation provides for the following conditions that must be met in order for the dismissal of an employee under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation was lawful:

3) there are no vacancies in the organization suitable for him.

Or:

1) the employee was warned about the upcoming changes two months in advance;

2) he refused to continue working;

3) he was offered another suitable job;

4) the employee has received a refusal from the job offer.

Documentation

A. In the absence of vacancies suitable for the employee, taking into account his qualifications and state of health.

1. The employee is given a written notice of a change in two months of the essential terms of the employment contract. The notice must be very specific and clear which conditions will be changed and how exactly and when this will happen (no earlier than two months later).

2. On a copy of the notice that remains with the employer, the employee signs: "Notice received on 00.00.0000, signature, transcript."

3. On the same copy of the notice or in a separate statement, the employee informs the employer of his refusal to continue working in the new conditions.

4. The employer issues an order to dismiss the employee, which indicates the reason for the dismissal and records the fact that there is no suitable vacancy: “dismiss due to refusal to continue work due to a change in the essential conditions of the employment contract and the absence of vacancies suitable taking into account the qualifications and health status, paragraph 7 of the article 77 of the Labor Code of the Russian Federation”.

Base:

B. In case of refusal of the proposed work.

1. The employee is given a notification of a change in the essential terms of the employment contract against receipt.

2. The employee writes (on a notice or in the application form) a refusal to continue working.

3. He is given a list of vacancies indicating positions (professions) and wages.

4. The employee in writing expresses his refusal from the proposed vacancies (or an act of refusal is drawn up).

5. An order is issued to dismiss the employee, which indicates the reason for the dismissal and records the fact of refusal of the proposed job: “dismiss due to refusal to continue work due to a change in the essential conditions of the employment contract and refusal of the proposed job, paragraph 7 of Article 77 of the Labor Code of the Russian Federation ".

Base:1. Order to amend staffing dated 00.00.0000 No. 00 (for example).

2. Notification dated 00.00.0000 No. 00.

3. Refusal to continue work from 00.00.0000.

4. List of vacancies at 00.00.0000.

5. Refusal of the proposed work from 00.00.0000.

The method of dismissal of employees under paragraph 8 of Art. 77 of the Labor Code of the Russian Federation "refusal to transfer to another job due to health in accordance with a medical report"

A medical opinion that an employee, for reasons of his health, cannot continue to work under an employment contract can be obtained in three ways.

Firstly, it could be employee's own initiative. In this case, the employee can apply for dismissal of his own free will, which must be satisfied immediately. Or the employee may request a transfer to another job. Since a medical report is mandatory for both the employee and the employer, such a request must also be immediately granted if the organization has a suitable job, taking into account the qualifications of the employee, or a lower position or lower-paid job to which the employee wants to go. If an employee applies for a job that he is not able to perform due to his qualifications, but he refused the employer’s proposals made taking into account the professional capabilities of this employee, the employment contract must be terminated under paragraph 8 of Art. 77 of the Labor Code of the Russian Federation.

Secondly, it could be employer's initiative. It is quite understandable that the employer wants to send a request to a medical institution about the state of health of an employee who is often sick and unable to cope with his duties. However, it must be remembered that information about the health status of an employee refers to his personal data. And in accordance with paragraph 3 of Art. 86 of the Labor Code of the Russian Federation, all personal data of the employee should be obtained from him. If the employee's personal data can only be obtained from a third party, then the employee must be notified of this in advance and written agreement. Moreover, in a notice made in writing, the employer must inform the employee about the purposes, alleged sources and methods of obtaining personal data, as well as the nature of the personal data to be obtained and the consequences of the employee's refusal to give written consent to receive them. Because in this case legally no negative consequences the refusal of the employee cannot entail, it is very doubtful that he will give his consent to the request for information from the medical institution. If, nevertheless, the consent of the employee is obtained and, in response to the request, the doctors give a conclusion that it is impossible for him to continue working under the contract, then the employer has the right to begin the dismissal process with a preliminary offer of another suitable job, which was mentioned in the previous paragraph.

And finally , third, it could be legal requirement. The Labor Code of the Russian Federation and a number of other regulations prescribe, in certain cases, to conduct periodic medical examinations of employees. In particular, art. 266 of the Labor Code of the Russian Federation provides for mandatory annual medical examinations of underage workers. Medical examinations of some other categories of workers are regulated by Art. 213 of the Labor Code of the Russian Federation. If, based on the results of the examination, the doctors conclude that the health of the employee does not allow him to continue working in his position (or profession), he should be offered another job that suits him for health reasons, taking into account his qualifications. Upon receipt of the consent of the employee, his transfer to another job is issued according to existing rules. If the employee refused the transfer in writing or his refusal is recorded by an act, the employment contract is terminated under clause 8 of Art. 77 of the Labor Code of the Russian Federation.

Documentation

1. A medical certificate has been received confirming that the employee is unable to continue work under the contract without harm to health.

2. The employer gives the employee a notice with an offer of another job.

3. The employee in writing (on a notice or in the form of an application) fixes his refusal to be transferred to another job.

4. A dismissal order is issued: "to dismiss in connection with the refusal to transfer to another job due to the state of health in accordance with a medical report, paragraph 8 of Article 77 of the Labor Code of the Russian Federation."

Base:1. Conclusion of the ITU Voikovsky Bureau No. 2 (medical and social expertise) dated 00.00.0000 ser. ITU 000 No. 000000.

2. Refusal of the employee from the proposed work from 00.00.0000.

Methodology for the dismissal of employees under paragraph 9 of Art. 77 of the Labor Code of the Russian Federation "refusal to transfer in connection with the relocation of the employer to another locality"

The term "other locality" implies the relocation of the organization to another locality: city, village, etc., i.e. to another administrative-territorial unit. The movement of an organization within one administrative-territorial unit, in particular to another district or district of the city, cannot be considered a movement to another locality.

Part 1 Art. 72 of the Labor Code of the Russian Federation allows the transfer of employees together with the organization to another locality only with the written consent of each employee. The employer must notify employees in writing of the upcoming move.

The law does not specify how long such a warning must be given. This is quite understandable, since the relocation of the company to another city, for example,- the event is quite serious and complex, and employees cannot but know about it in advance. However, an official written warning must still be given. These may be notifications that are given against receipt to each employee, but there may also be a general order for the organization, also brought to the attention of all employees against receipt.

An employment contract with those employees who expressed in writing their refusal to transfer together with the organization to another locality is terminated under paragraph 9 of Art. 77 of the Labor Code of the Russian Federation.

Documentation

1. An order is issued (this is more convenient from the point of view of the manufacturability of the process) to move the organization to another locality. The order is communicated to all employees against receipt (or an act is drawn up on refusal to familiarize or from a receipt for familiarization).

2. The employee writes a statement about the refusal to continue working in another area.

3. A dismissal order is issued: “dismiss due to refusal to transfer due to the employer’s relocation to another locality, clause 9 of article 77 of the Labor Code of the Russian Federation.”

Base:1. Order dated 00.00.0000 No. 00.

2. Application of the employee dated 00.00.0000.

In conclusion, I would like to say the following. All four grounds for dismissal that we have considered today begin with the word “refusal”. This word is written in work book may further complicate the worker's employment. After all, not every employer will delve into the situation and be able to realize that they are dealing with a valid reason for terminating an employment contract (in which, by the way, continuous experience is maintained for one month). Therefore, in any of the cases considered today, employees tend to write statements not about refusing this or that offer of the employer, but about dismissal of their own free will. And, as practice shows, in most cases (except for those that are fundamentally important for one or the other side), the employee is dismissed under paragraph 3 of Art. 77 of the Labor Code of the Russian Federation, i.e. at will.

I.V. Zhuravleva, consultant, head of the course " Personnel work in a modern organization"

New edition Art. 77 Labor Code of the Russian Federation

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(Article 75 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 refusal of the employee to transfer to another job, necessary for him in accordance with the medical certificate issued in the manner prescribed 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.

Commentary on Article 77 of the Labor Code of the Russian Federation

Article 77 of the Labor Code of the Russian Federation contains a list of grounds for terminating an employment contract:

agreement of the parties;

expiration of the employment contract;

termination of the employment contract at the initiative of the employee;

termination of the employment contract at the initiative of the employer;

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

the employee's refusal to continue working in connection with a change in the owner of the property of the enterprise, a change in his jurisdiction (subordination) or reorganization;

the employee's refusal to continue working due to a change in previously determined terms of the employment contract;

the employee's refusal to be transferred to another job due to a state of health in accordance with a medical report;

refusal of the employee to transfer in connection with the relocation of the employer to another locality;

circumstances beyond the control of the parties (so-called force majeure or force majeure circumstances);

violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation (other federal law) - if such a violation excludes the possibility for the employee to continue the work entrusted to him in accordance with the employment contract ( labor function);

other grounds provided for by the Labor Code of the Russian Federation (other federal laws).

It should be noted that in each of the listed cases of termination of the employment contract, the decision taken by the employer must not only be irreproachable from a legal point of view, but also be appropriately documented, i.e. recorded in certain documents.

Termination of the employment contract in connection with the transition

employee to work for another employer

or for elective work (position)

The procedure for terminating an employment contract in connection with the transfer of an employee to work with another employer or for an elective job (position) is not specifically defined by the Labor Code, although the appropriate basis for dismissal of an employee is provided for in paragraph 5 of part one of Article 77 of the Labor Code of the Russian Federation. In this case, the employer, apparently, should adhere to the general procedure for terminating the employment contract and the above recommendations, especially since the mentioned paragraph clearly defines the circumstances the occurrence of which makes it possible to dismiss the employee on the grounds under consideration.

Earlier, we have repeatedly drawn the attention of dear readers to the need to document the circumstances, the occurrence of which makes it possible to qualify the dismissal of an employee as legal. In the case under consideration, the issuance of an order (instruction) on dismissal is allowed on the basis of:

a written application of the employee, positively considered by the employer, containing a request to transfer the latter to work with another employer or the employee's consent to such a transfer;

a written application of the employee, positively considered by the employer, containing a request for the latter to transfer to elective work or the employee's consent to such a transfer.

We also note that in accordance with Part 1 of Article 375 of the Labor Code of the Russian Federation, an employee released from work in connection with his election to elective office to the trade union body of this organization, after the expiration of its term of office, the previous job (position) should be provided, and in the absence of such work (position) - with the consent of the employee - another equivalent job (position) at the same enterprise. However, if the employee refuses the proposed job (position), the employment contract with him is terminated on the grounds provided for in paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation.

As for the transfer of an employee to work for another employer, if such a transfer is carried out in accordance with a written invitation from another employer, the latter is not entitled to refuse to hire the employee within a month from the date of dismissal from the previous place of work, if, by agreement between the employee and the employer have not established another, including a longer period. An appropriate guarantee is provided for in Article 64 of the Labor Code of the Russian Federation.

from the continuation of work due to a change of ownership,

in connection with a change in the jurisdiction of the enterprise or

in connection with its reorganization

The procedure for terminating an employment contract in connection with the employee's refusal to continue working due to a change in ownership, in connection with a change in the jurisdiction of the enterprise or in connection with its reorganization is determined by Article 75 of the Labor Code of the Russian Federation. It should be emphasized that in this case the right and initiative to terminate the employment contract ahead of time belongs to employees of the following categories:

The head of the company;

deputy head of the enterprise;

chief accountant of the company.

Such a right, more precisely, the right to refuse to continue working, is granted to the specified categories of employees if, after the conclusion of employment contracts with them, there is a change of ownership, a change in the jurisdiction of the enterprise or its reorganization. We note that dismissal for the indicated reasons should not be considered as a special case of dismissal of an employee of his own free will (see in this regard, article 80 of the Labor Code of the Russian Federation), since the article we are considering specifically lists the circumstances that make it lawful to dismiss an employee - at least and on his initiative.

The employee must notify the new employer about the refusal to continue work in connection with the change of the owner of the enterprise in compliance with the requirements established in relation to the procedure for such a warning. If the employee refuses to continue working due to a change in the owner of the property of the enterprise, the employment contract is terminated on the grounds provided for in paragraph 6 of part one of Article 77 of the Labor Code of the Russian Federation.

The employee must also notify the new employer of the refusal to continue work in connection with a change in the jurisdiction (subordination) of the enterprise, as well as in the event of its reorganization (merger, acquisition, division, separation, transformation), in compliance with the requirements established for the procedure for such a warning. If the employee refuses to continue working due to a change in the jurisdiction of the enterprise or its reorganization, the employment contract is terminated on the basis indicated above.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Termination of the employment contract due to the refusal of the employee

from continuing to work due to changes in certain

parties to the terms of the employment contract

The procedure for terminating an employment contract in connection with the employee's refusal to continue working due to a change in the terms of the employment contract determined by the parties is determined by Article 74 of the Labor Code of the Russian Federation, on the content of which we dwelled earlier. In this regard, we will briefly dwell on issues directly related to the dismissal of an employee on the grounds provided for in clause 7 of the first part of Article 77 of the Labor Code of the Russian Federation due to the occurrence of the circumstances considered within the framework of this paragraph.

The essence of these circumstances lies in a motivated change in the terms of the employment contract determined by the parties at the initiative of the employer in connection with a change in organizational or technological working conditions. An employee who has been warned in due course about the upcoming change in the terms of the employment contract in connection with a change in organizational or technological working conditions and who has declared his refusal to continue working in the new conditions, is subject to dismissal.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Termination of the employment contract due to the refusal of the employee

from transfer to another job due to health conditions

The procedure for terminating an employment contract in connection with the employee's refusal to transfer to another job due to health conditions is determined by Article 73 of the Labor Code of the Russian Federation, which we also discussed earlier. Therefore, we will again touch only on issues directly related to the dismissal of an employee on the grounds provided for in clause 8 of part one of Article 77 of the Labor Code of the Russian Federation due to the occurrence of circumstances determined by parts three and four of Article 73 of the Labor Code of the Russian Federation.

The essence of these circumstances lies in the obligation of the employer to transfer the employee to work that is not contraindicated for him for health reasons, if, in accordance with a medical report, the latter needs to be provided with such work. An employee who has been warned in accordance with the established procedure about the need to transfer to another job and who has declared his refusal to do so is subject to dismissal.

The decision of the employer to dismiss the employee in connection with the refusal to transfer to another job that is not contraindicated for health reasons will be legal even if he does not have the corresponding job in the given area (provided that he is not obliged to offer the employee the appropriate job in another terrain).

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Termination of the employment contract due to the refusal of the employee

from transfer to another job due to displacement

employer in another area

The procedure for terminating an employment contract in connection with the employee's refusal to transfer to another job due to the employer's relocation to another locality is determined by part one of Article 72.1 of the Labor Code of the Russian Federation, and the corresponding grounds for dismissal are provided for by paragraph 9 of part one of Article 77 of the Labor Code of the Russian Federation. Let us clarify that another locality in this case should be understood as an area outside the administrative-territorial boundaries. locality, indicated in the registration documents of the employer as the permanent location of the latter.

The fact of moving the employer to another locality must be documented, and the refusal to transfer to another permanent job due to the employer moving to another locality must be expressed by the employee in writing. Failure to comply with these conditions - in the event of the dismissal of an employee on the grounds provided for in clause 9 of part one of Article 77 of the Labor Code of the Russian Federation - may subsequently cause a labor dispute in connection with the non-obvious legality of the employer's decision to terminate the employment contract.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Another commentary on Art. 77 of the Labor Code of the Russian Federation

1. Termination of an employment relationship is based on different kind legal facts that can be divided according to structure, volitional content, and also from the point of view of the legal source in which they are formulated.

2. The structure distinguishes between simple and complex legal facts (legal compositions). Labor legislation provides for both types of such facts. For example, most of In cases of termination of an employment contract at the initiative of the employer, it is necessary to have a legal structure: as a rule, one expression of the will of the employer is not enough to terminate the employment relationship, a reason is needed that led to the emergence of the relevant right for the employer.

Modern labor legislation expands the range of simple legal facts underlying the termination of an employment contract, which is a reflection of the transition to market economy. So, before the entry into force of the Labor Code of the Russian Federation, perhaps the only case of this kind was the termination of an employment contract at the initiative of an employee. At present, in some cases, an employment contract may be terminated due to the unilateral initiative of the employer (see paragraph 2 of article 278 of the Labor Code of the Russian Federation and commentary thereto).

3. From the point of view of volitional content, legal facts-actions and legal facts-events are distinguished.

The first ones involve the termination of an employment relationship in the presence of someone's will. Thus, the will (initiative) to terminate an employment contract may come from its parties or from persons who are not a party. In this regard, we can talk about the termination of the employment contract by agreement of the parties, on the unilateral initiative of the party to the contract (employee or employer) or on the initiative of third parties.

Facts-events and facts-actions can be combined with each other, forming legal compositions, or represent single (simple) legal facts. For example, the termination of an employment contract due to the expiration of its validity period implies the presence of a complex legal fact: a) expiration of the term; b) the will of the employee or employer (see article 79 of the Labor Code of the Russian Federation and commentary thereto). On the contrary, the fact of the employee’s complete disability, his death, or in some cases reaching the legal age limit are the only grounds for terminating the employment contract with him (see paragraphs 5, 6 of article 83 of the Labor Code; paragraph 3 of article 336 of the Labor Code RF and commentary on them).

4. The current legislation has expanded the degree of contractual freedom of the parties to an employment relationship, which is due to the multi-structural market nature of the modern Russian economy. To a large extent, this process has found its expression in the part of labor legislation that regulates the termination of an employment contract. If before the entry into force of the Labor Code of the Russian Federation, the grounds for terminating an employment contract were regulated almost exclusively by the imperative norms of the law, then from now on they can be established both by law and by agreement of the parties. On the basis provided by the agreement of the parties, employment contracts with the head of the organization may be terminated (see clause 3 of article 278 of the Labor Code of the Russian Federation and commentary thereto); with employees employed by employers - individuals(see article 307 of the Labor Code of the Russian Federation and commentary to it); with homeworkers (see Article 312 of the Labor Code of the Russian Federation and commentary thereto); with employees employed in a religious organization (see Article 347 of the Labor Code of the Russian Federation and commentary thereto).

5. In accordance with Art. 6 of the Labor Code of the Russian Federation, the procedure for termination (termination) of employment contracts is the responsibility of the federal authorities state power(see article 6 of the Labor Code of the Russian Federation and commentary to it). At the same time, as follows from Part 2 of Art. 77 of the Labor Code, the grounds for termination of an employment contract are established by the Code and other federal laws.

Article 77 of the Labor Code of the Russian Federation lists the general grounds for termination of an employment contract, while additional grounds are indicated in other articles of the Code, as well as in other federal laws (see articles 278, 288, 307, 312, 336 of the Labor Code of the Russian Federation and commentary thereto).

The division of the grounds for termination of an employment contract into general and special takes place in relation to cases of termination of an employment contract at the initiative of the employer (see Article 81 of the Labor Code of the Russian Federation and commentary thereto).

6. On termination of the employment contract by agreement of the parties (clause 1 of article 77), see art. 78 of the Labor Code of the Russian Federation and commentary to it.

7. On the termination of a fixed-term employment contract due to the expiration of the term (clause 2, article 77), see Art. 79 of the Labor Code of the Russian Federation and commentary to it.

8. On termination of the employment contract at the initiative of the employee (clause 3, article 77), see Art. 80 of the Labor Code of the Russian Federation and commentary to it.

9. On the termination of the employment contract at the initiative of the employer (clause 4 of article 77), see Art. Art. 71, 81 of the Labor Code of the Russian Federation and comments on them.

10. On the transfer of an employee to another employer (clause 5, article 77), see Art. Art. 72.1, 64, 70 of the Labor Code of the Russian Federation and comments on them.

11. Along with the transfer of an employee to work for another employer, clause 5 of Art. 77 of the Labor Code of the Russian Federation establishes the transfer of an employee to elective work (position) as a basis for terminating an employment contract. In terms of legal content, such a transition completely coincides with the case of termination of the employment contract due to the transfer of the employee to another employer (see Article 72.1 of the Labor Code of the Russian Federation and the commentary to it), since here there is also a change in the subject composition of the labor relationship. Therefore all those general rules, which are provided for by law for this general case, also apply to the situation that arises when an employee transfers to elective work (position). Persons elected (elected) to an elective position cannot be denied the conclusion of an employment contract (see Article 64 of the Labor Code of the Russian Federation and commentary thereto); they are not set by new job preliminary test (see article 70 of the Labor Code of the Russian Federation and commentary to it).

At the same time, the legislator interprets the transition to elective work (position) as an independent basis for terminating an employment contract. Therefore, despite the fact that the transition to elective work (position) is a special case of novation of the subject composition of the labor contract, it has specific features, manifested in two aspects.

Firstly, in the presence of organizational and legal consequences established by law that occur in connection with the stay of this person in an elected paid position. Such consequences are not provided for all cases of replacement of posts by election, but only for some of them. So, by virtue of Art. 375 of the Labor Code of the Russian Federation to an employee released from work in an organization or individual entrepreneur in connection with his election to a position in the elected body of the primary trade union organization, after the expiration of the term of office, the previous job (position) is provided, and in its absence, with the consent of the employee, another equivalent job (position) with the same employer (see Article 375 of the Labor Code RF and commentary to it).

In accordance with Art. 25 of the Federal Law of May 8, 1994 N 3-FZ "On the status of a member of the Federation Council and the status of a deputy State Duma Federal Assembly of the Russian Federation" a member of the Federation Council, a deputy of the State Duma who worked before his election (appointment) as a member of the Federation Council, a deputy of the State Duma under an employment contract, after the termination of their powers, is given the previous job (position), and in its absence - another equivalent job (position) at the previous place of work or with their consent in another organization.

A similar rule is provided for in the laws of the constituent entities of the Russian Federation, which determine the status of deputies of the relevant legislative bodies.

Secondly, in the specifics of the volitional content of the act of termination of the employment contract in connection with the transition to elective work (position). If, when transferring an employee to another employer, coordination of the wills of three subjects is required - the employee being transferred, dismissing the employer and the employer concluding a new employment contract, then in this case, the direction of the will of the employer terminating the employment contract does not matter: he is obliged to terminate the employment contract with the employee in in accordance with paragraph 5 of Art. 77 of the Labor Code of the Russian Federation. At the same time, the law does not make any clarifications regarding the nature of the work for which the employee is elected. Therefore, the considered grounds for termination of the employment contract are subject to application when an employee is elected to any elective job or position (head commercial organization, teacher of the institution of higher vocational education etc.).

12. Termination of the employment contract under paragraph 5 of Art. 77 of the Labor Code of the Russian Federation may take place, provided that the resigning employee does not object to this. If the employee insists on dismissal of his own free will, the employment contract with him is terminated on this basis (see Article 80 of the Labor Code of the Russian Federation and commentary to it).

13. On changing the employment contract due to a change in the owner of the property of the organization, a change in the jurisdiction (subordination) of the organization or its reorganization, see Art. 75 of the Labor Code of the Russian Federation and commentary to it.

14. For changes in the terms of an employment contract, see Art. 74 of the Labor Code of the Russian Federation and commentary to it.

15. On the transfer of an employee to another job in accordance with a medical report, see Art. 73 of the Labor Code of the Russian Federation and commentary to it.

16. On the concept of transfer to another locality, see Art. 72.1 of the Labor Code of the Russian Federation and commentary to it.

17. On the termination of an employment contract due to circumstances beyond the control of the parties (clause 10, article 77), see Art. 83 of the Labor Code of the Russian Federation and commentary to it.

The grounds for termination of an employment contract are:

4) termination of the employment contract at the initiative of the employer (and);

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

6) the employee's refusal to continue working in connection with a change in the owner of the organization's property, with a change in the jurisdiction (subordination) of the organization or its reorganization, with a change in the type of state or municipal institution ();

7) the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties ();

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 employer’s lack of an appropriate job ();

9) refusal of the employee to transfer to work in another locality together with the employer ();

10) circumstances beyond the control of the parties ();

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 ().

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.

Commentary on Art. 77 Labor Code of the Russian Federation

The general grounds for terminating an employment contract may be applicable both to all categories of employees, and to certain categories of them, taking into account the content of their employment contract.

The Labor Code and other federal laws may provide for additional grounds for termination of an employment contract.

Issues related to the termination of an employment contract were also reflected in the PPVS of the Russian Federation dated March 17, 2004 N 2.

Article 77 of the Labor Code of the Russian Federation is general with respect to chapter 13 of this regulatory act - it regulates general terms and Conditions termination of the employment contract. At the same time, neither the norm individually, nor the entire Labor Code provide a definition for the termination of an employment contract, therefore it can only come from legal practice.

The termination of an employment contract (contract) expresses various phenomena:

• a time-consuming process in which all the actions of the parties are concluded labor relations on termination of mutual circumstances;
• a one-time legal fact expressing the termination of legal relations and the release from mutual rights and obligations;
• legal term denoting the end of an employment contract under various conditions.

Article 77 of the Labor Code provides for the following types of contract termination:

• according to the mutual agreement of the parties;
• expiration of the current labor contract;
• personal initiative of the employee (employee) to terminate the contract;
• termination at the initiative of the employer;
• transfer of an employee - this condition is possible only with the consent of three parties - directly the employee, the previous and new employer;
• termination of labor relations due to the refusal of the employee to continue the performance of duties;
• termination due to the employee's refusal to continue legal relations due to changed terms of the contract;
• refusal of the employee to transfer when it is necessary for medical reasons;
• refusal to transfer to another location;
• termination of relations due to violation of regulations.

Second commentary on Article 77 of the Labor Code

1. Termination of an employment contract is the termination of the employment relationship between an employee and an employer. In this it differs from the removal of an employee from work, when the employee's performance of his labor function is only suspended. At the same time, as a rule, wage not paid for the suspension period (see). Termination of the employment contract means the dismissal of the employee.

In accordance with the conceptual apparatus, the legislator uses three terms: "termination"; "termination"; "dismissal". The first two terms are used in relation to an employment contract. The term "termination" is broader than "termination". The concept of "termination of an employment contract" is used in cases where the contract is terminated at the initiative of the employee, or the employer, or by agreement of the parties to the employment contract. The term "dismissal" is used in relation to a specific employee (for example, engineer M.I. Ivanov was dismissed at the initiative of the employer on).

The commented article contains common grounds for termination of an employment contract for all employees.

2. Clause 1, part 1, art. 77 of the Labor Code of the Russian Federation provides for such a basis as by agreement of the parties. It reflects the contractual nature of labor: by agreement of the parties, as a rule, an employment relationship arises, and by their agreement it terminates at any time.

For termination of an employment contract, see her.

3. According to paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the basis for terminating an employment contract is, with the exception of cases where the employment relationship actually continues and none of the parties has demanded their termination. See Art. 79 and commentary on it.

4. According to paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the employment contract is terminated.

6. Clause 5, Part 1, Art. 77 of the Labor Code of the Russian Federation, which establishes such a basis for terminating an employment contract as the transfer of an employee with his consent or at his request to another employer, is applied when there is a clear written will of three subjects: the administration of the new place of work, inviting to work, this employee, moving from one place of work to another in the order of transfer, and the administration of the former place of work, releasing this employee in the order of transfer to another organization. Then the employment contract with him is terminated at the previous place of work under paragraph 5 of part 1 of Art. 77. In a new place, he can no longer be refused employment (see to her).

Clause 5, Part 1, Art. 77 of the Labor Code of the Russian Federation contains another reason for the termination of an employment contract - the transition to elective work (position). For this reason, an act of electing this employee to an elective job (position) freed from production work is required. The previous and this grounds for dismissal, as we see, differ significantly from each other. Therefore, in the dismissal order and in the work book of the employee, there should be a reference not just to paragraph 5 of Art. 77 of the Labor Code of the Russian Federation, and with a clarification on which of these two grounds the employee leaves.

7. Clause 6, Part 1, Art. 77 of the Labor Code of the Russian Federation provides for such a basis as the employee's refusal to continue working in connection with: a) a change in the owner of the organization's property; b) with a change in the jurisdiction (subordination) of the organization; c) with the reorganization of the organization (). All three cases have now become quite common. For more details, see Art. 75 and commentary on it.

8. Clause 7, Part 1, Art. 77 of the Code establishes the general basis for dismissal, which was introduced in 1988 in paragraph 6 of Art. 33 Labor Code as supplemented. This is “refusal to continue work in connection with a change in the terms of the employment contract determined by the parties” (see