Dismissal at will. Reason for leaving on resume

(in other words, at the initiative of the employee) is one of the most common grounds for terminating an employment contract. The initiative to terminate the employment relationship comes from the employee and does not imply its approval by the employer, because you cannot force a person to work against his will. However, there are certain rules that must be followed when leaving at will.

The procedure for dismissal at will

The procedure for dismissal at will involves, first of all, the employee writing a letter of resignation. The application indicates the date of dismissal and its grounds (“of one's own free will”), it must be signed by the employee indicating the date of compilation.

Indicate in the application reason for voluntary resignation not necessary. However, if circumstances require resigning, then the reason must be indicated, in addition, personnel officers may be asked to document it. In other cases, the phrase "I ask you to dismiss me of your own free will on such and such a date" is sufficient.

After the application for dismissal is transferred to the personnel department, a dismissal order. Usually, a unified form of such an order is used (), approved by the Resolution of the State Statistics Committee of 01/05/2004 No. 1. In the order, it is necessary to make a reference to the Labor Code of the Russian Federation, as well as provide the details of the employee's application. The employee must be familiarized with the order of dismissal against signature. If the order cannot be brought to the attention of the dismissed person (he is absent or refused to familiarize himself with the order), then a corresponding entry is made on the document.

Terms of dismissal at will

According to the general rule enshrined in, the employee must notify the employer of the upcoming dismissal no later than two weeks in advance. This period begins on the day after the employer receives the letter of resignation.

However, the so-called two-week working period can be reduced by agreement between the employee and the employer. In addition, the law does not oblige the employee to be at the workplace during the period of notice of dismissal. He can go on vacation, sick leave, etc., while terms of dismissal will not change.

There are statutory exceptions to the general rule of a two-week working off. So, upon dismissal during the trial period, the notice period for dismissal is three days, and upon dismissal of the head of the organization - one month.

Calculation upon dismissal of one's own free will

Calculation upon dismissal of one's own free will, as well as on other grounds, must be made on the day of dismissal, that is, on the last day of work. Calculation of severance involves the payment of all amounts due to the employee: wages, compensation for unused vacations, payments provided for by the collective and labor agreements. If the dismissed employee used the vacation in advance, the paid vacation pay is recalculated, the corresponding amount is deducted from the salary in the final calculation.

If the employee was absent from work on the day of dismissal and could not receive the calculation, he has the right to apply for it at any other time. The amount due to him must be paid no later than the next day after the appeal.

Voluntary dismissal during vacation

Retire voluntarily while on vacation the law does not prohibit. Such a ban is provided only for dismissal at the initiative of the employer. The employee has the right to write a letter of resignation while on vacation, or to attribute the date of the proposed dismissal to the vacation period.

If an employee wants to apply for resignation while on vacation, it is not required to recall him from vacation

Also, an employee can quit at his own request after using the vacation. Note that the provision of leave with subsequent dismissal is a right, not an obligation of the employer. If such leave is granted, the day of dismissal shall be considered the last day of the leave. However, for the purposes of settlements with the employee, the last day of work in this case is the day preceding the start of the vacation. On this day, the work book should be issued to the employee and all necessary payments should be made. This is a kind of exception to the general rule given, confirmed.

Voluntary dismissal during sick leave

Resign at will while on sick leave can. prohibits such dismissal only at the initiative of the employer.

An employee has the right to apply for dismissal during a period of temporary disability. A situation may also arise when the previously agreed date of dismissal falls on the sick leave period. In this case, the employer will issue the dismissal on the day specified in the application for dismissal, provided that the employee has not withdrawn this application. The employer is not entitled to independently change the date of dismissal.

On the last day of work, even if it falls on sick leave, the employer makes the final payment, issues a dismissal order, in which he makes a note about the absence of the employee and the inability to familiarize him with the order. The employee will come for the work book after recovery or, with his consent, it will be sent to him by mail. All amounts due to the employee will be paid to him

Often, the employer threatens to fire a negligent employee under the article, although the term “dismissal under the article” does not legally exist. Any dismissal, in principle, occurs under one article or another of the Labor Code of the Russian Federation, but some articles of the Labor Code may adversely affect the further employment of an employee. Article 81 of the Labor Code clearly defines the reasons why an employer can dismiss an employee.

Now there are fewer of us...

Paragraph 4 of this article states that the head, his deputies and the chief accountant can be fired when the owner of the organization changes. In this situation, only the above persons can be fired. The new owner does not have the right to dismiss ordinary employees under this article.

When an organization is liquidated, everyone is subject to dismissal, this will affect even pregnant women and young mothers.

When reducing the number or state, there are several groups of people who enjoy the exclusive right not to lose their jobs. These people include breadwinners and people with long continuous work experience at a given enterprise, institution, organization.

Mismatch…

Another reason for dismissal is specified in paragraph 3 of Art. 81 of the Labor Code: "Inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification."

To identify the incompetence of an employee, a special attestation commission should be created, which, as a rule, includes the deputy director of the organization, a representative of the personnel department and the immediate supervisor of the subject. A special order is issued for its implementation. The subject is given a task that does not go beyond the scope of the job description corresponding to his position. Even if the members of the commission somehow agree among themselves and the task may be obviously impossible, for example, in terms of deadlines, you can write a complaint to the labor inspectorate and challenge the results of the certification in court. A final report is drawn up on the results of certification.

Dismissal is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer. This can be either a vacant position or work corresponding to the qualifications of the employee, or a vacant lower position or lower-paid work that the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract. In the event that the employee refuses in writing all the proposals made to him, the employer may dismiss him.

Failure…

An employee can also be fired for failure to perform official duties. So, according to paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, the reason for dismissal may be "Repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction."

Failure by the employee must be repeated and without good reason. Moreover, a disciplinary sanction must already be imposed on the employee.

According to Article 192 of the Labor Code of the Russian Federation, a disciplinary act is a failure to perform or improper performance by an employee through his fault of the labor duties assigned to him. Disciplinary action is allowed only in the form of:

remarks, reprimand or dismissals on the appropriate grounds.

To dismiss an employee on the basis of paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, his failure to fulfill his labor duties must be:

a) repeated;

b) without good reason.

If there are good reasons, then the employee must state them in writing. And at the same time, the employee must already have a properly executed disciplinary sanction.

Ivanov, late again!

Another reason for dismissal, as stated in paragraph 6 of Art. 81 of the Labor Code of the Russian Federation, is "A single gross violation by an employee of labor duties."

Absence from the workplace without good reason during the entire working day (shift), regardless of its (her) duration, is considered absenteeism. The most important valid reason is sick leave. If, after returning to work, you do not provide sick leave, then the employer may put you on absenteeism.

If you had other valid circumstances, they must be stated in writing. It is up to management to decide whether your reasons are valid.

If you need to be absent from work, write a statement in duplicate, on which your management puts its resolution “no objection”, date and signature. The first copy is with the authorities, the second is for you.

Delays are different. "A single gross violation is also considered to be absent from the workplace without good reason for more than four hours in a row during the working day (shift)." That is, if you are late for work for an hour, you cannot be fired under this item. However, for repeated delays, a disciplinary sanction can be imposed and subsequently dismissed under paragraph 5 of Art. 81, as for repeated non-fulfillment by an employee without good reason of his labor duties.

Theft and embezzlement

Perhaps the most indisputable reason for dismissals contains subparagraph D, paragraph 6. Art. 81 of the Labor Code of the Russian Federation “Theft at the place of work (including small) of someone else’s property, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into force or a decision of a judge, body, official authorized to consider cases of administrative offenses.”

Already from the text of the law it is clear that in order to dismiss an employee on this basis, a court decision or a decision of an authorized official is necessary, that is, an investigation must be carried out. However, in practice, an employee may be asked not to make a fuss, which in different circumstances can affect both the reputation of the employee himself (even if he is not to blame for anything), and the reputation of the organization itself. And here the choice is yours.

Unsuitability

Professional unsuitability is a discrepancy between the professional qualities of an employee of the position held. In other words, if an employee does not cope with his duties, or copes below the average established level, such an employee may be professionally unsuitable for this position. What to do if you were fired for?

Be careful!

In fact, there are many more reasons for dismissing an employee than listed above. A complete list of grounds for dismissal contains Art. 81 of the Labor Code, which you need to know by heart.

The Labor Code also provides that the termination of an employment contract at the initiative of the employer may also occur in other cases provided for by the employment contract with the head of the organization and members of the collegial executive body of the organization. And in each case, checks must be carried out on the legality of your dismissal. Thus, before signing an employment contract, carefully study it so as not to receive unexpected "surprises".

What is written in pen...

What to do if, in your opinion, an illegal entry has appeared in the labor? According to Art. 394 of the Labor Code of the Russian Federation, in cases of dismissal without a legal basis or in violation of the established procedure for dismissal, or illegal transfer to another job, the court, at the request of the employee, may decide to recover in favor of the employee monetary compensation for moral damage caused to him by these actions.

Moreover, if the dismissal is declared illegal by the court, the employee has the right to ask the court to change the wording of the grounds for dismissal to dismissal of his own free will. In accordance with clause 33 of the Rules for maintaining and storing work books, making blank work books and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225, if there is an entry in the work book about dismissal or transfer to another job, recognized as invalid, the employee, upon his written application, is issued a duplicate of the work book at the last place of work, into which all entries made in the work book are transferred, with the exception of the entry declared invalid.

Due to the incredibly frequent requests for help with layoffs, we have compiled TOP 7 important rules especially for applicants - Dismissal under the article. Information was collected during 2013-2015. so that you can confidently communicate with the employer. If we helped you, please express your gratitude in the comments at the bottom of the page. We wish you a peaceful solution to labor issues with employers. And professional success to colleagues HR!

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It happens like this - well, you work, well, you’re used to it, well, there’s nowhere to go, and at one fine moment: “Bam!”, And you calmly put your favorite cup with flowers and a frame with a photo of your loved one in a box, buy a “farewell” cake for your colleagues , you print a letter of resignation on your work computer and put it on the manager's desk? What is the reason for this dismissal? Because that's it, the body is overstrained, the nerves are at the limit and in general sick of all…

In this article I want to consider the 10 most common reasons for voluntary resignation. I encountered some of them “on my own skin”. I'll start, perhaps, from the 10th place and gradually move on to the leader of the top.

№10. Too big distance from home to office. Often, employees (especially owners of their own vehicles) quit for this very reason. The frequent increase in the price of fuel and the cost of travel in public transport, as well as the time spent on the road, sometimes force people to part even with their usual and beloved place of work. In turn, managers who are interested in an employee can pay extra to cover transportation costs. A great way to prevent being fired for this reason. Although this happens very rarely.

No. 9. Not a very good relationship with superiors. Very often we can hear such a term: “initiative is punishable”. One of the reasons for the dismissal of staff is lack of expression or lack of demand. Such situations happen when the leader is too authoritarian and does not consider it necessary to communicate or consult with his subordinates. The person feels unwanted and eventually quits.

No. 8. The stress level is skyrocketing. Unfortunately, in our time, when there is always not enough time, stressful situations at work can undermine even a completely resistant person. Plus, constant processing, which is not paid or rewarded in any way, eventually gets boring, and the employee understands that he is working in vain, giving everything of himself, but receiving nothing in return.

No. 7. We run from a sinking ship. But not like those nasty rodents that you just thought of, but like people who think about tomorrow. It turns out that the unstable position of the company in the market is also a common reason for dismissal. Nobody wants to suddenly be out of a job. It’s better to get ahead of events by resigning before the “shipwreck”.

No. 6. Impossibility of development and professional growth. Many people, having worked in the company for several years, suddenly wonder: what's next? Unfortunately, or maybe fortunately for some, there comes a moment in a person’s life when he wants to change everything dramatically, try himself in something new and more exciting - open his own business, learn a new profession, radically change everything. True, desires are not always destined to come true. But that is another story. As the saying goes: "Who does not take risks, he does not drink champagne!"

No. 5. Small Prizes or the absence of any at all. Insufficient stimulation of employees becomes one of the main reasons for dismissal, because encouragement is always pleasant, it makes you work with even greater zeal and desire.

No. 4. Boring. Sometimes the work becomes so boring and banal that you don’t even want to discuss it. This often happens with those employees whose monotonous duties are repeated without changes from day to day. "Groundhog Day" soon gets bored, and the person begins to look for more interesting and varied work.

No. 3. I'm underestimated. Very often, with these words, the employee leaves. Even very experienced and intelligent employees feel unclaimed. The reasons for this may be different: excessive modesty, constraint and lack of initiative of the employee himself, who cannot express himself, or the manager does not pay enough attention to the atmosphere in the team, does not evaluate the work of employees. The second, by the way, comes across more often. It happens that there is a good and talented employee, but they use him as a screw. And then it is this reason for dismissal that becomes decisive for him!

№2. Expectation and reality. Very often, managers, in order to get a good employee, “slightly” overestimate the opportunities offered by the company. But in fact, after working for the company for some time, any self-respecting employee wants to get promoted. But the promises of career growth turn out to be a beautiful fairy tale. As a result, deceived employees leave the company without regret.

№1. The first place in my ranking of reasons for dismissal is rightfully occupied by salary. Naturally, any person wants to receive a decent salary that meets basic needs. But, unfortunately, the average salary today is much lower than necessary even for an average standard of living. Therefore, today many specialists are forced to work outside their profession, just to get a higher salary. And then, it is worth remembering what country we live in! No matter what is written in smart American books, money has a very strong influence in Ukraine.

This is based on the results of communication)) But for me personally, reasons No. 3,4 and 6 have always turned out to be the most relevant.

If you counted more than 3 reasons - this is a “bell”. It's time to get serious!

Reasons for voluntary resignation - these are circumstances that encourage an employee to end his/her employment with a particular employer. In what cases such grounds have legal significance, we will consider in the article.

Is it necessary for the employee to indicate the reason for dismissal in the application?

In accordance with Part 1 of Art. 80 of the Labor Code of the Russian Federation, the employee is entitled to terminate labor activity of his own free will at any time, informing the employer about this at least 2 calendar weeks in advance. This happens by submitting a written application to the employer.

According to the explanations of Rostrud, given in the letter “On the dismissal of an employee ...” dated July 23, 2012 No. PG / 5521-6-1, the employee may not mention in the application the reasons why he decided to quit.

The obligation to explain the motives existed in the old norms of labor legislation regarding the termination of an employment contract concluded for a certain period at the initiative of the employee (Article 32 of the Labor Code of the RSFSR (RF)). The new Labor Code of December 30, 2001 No. 197-FZ repealed these provisions and granted persons working under a fixed-term employment contract to quit on a general basis, including at their own request (clause 3, part 1, article 77 of the Labor Code of the Russian Federation).

However, in some cases, the law prescribes to indicate in the application Reason for voluntary resignation:

• when the employee strives to be dismissed on a specific day and without the required work (part 3 of article 80 of the Labor Code);
• if necessary, make a record of dismissal in the employee’s work book containing specific reasons, which, in turn, affect the employee’s receipt of certain types of benefits or privileges (clause 5.6 of the Instructions for filling out work books, approved by Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69).

What reasons are valid for dismissal of one's own free will?

Part 3 Art. 80 of the Labor Code of the Russian Federation defines a number of good reasons, in the presence of which the employer must formalize the dismissal of an employee on the day indicated in the application. At the same time, he is not entitled to demand from a subordinate to work out the established period.

Yes, respectful reasons for voluntary dismissal The following are considered to give the right to terminate labor activity without working off:

• The employee does not have the opportunity to continue working in the organization in connection with enrollment for study, retirement and other similar circumstances given in Part 3 of Art. 80 TK.
• The employer violates the norms of the law, does not comply with the provisions of the labor or collective agreement, ignores the prescriptions of regulatory legal and other local acts relating to labor. The fact of such violations must be established by bodies competent to exercise control and supervision over compliance with labor laws: for example, a labor inspectorate or a court (subparagraph “b”, paragraph 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

It is worth noting that the possible reasons for dismissal without working off are not limited to the circumstances listed above. The employee can agree on this with the employer. However, if he does not take into account the arguments of the employee, you still have to wait 14 days from the date of filing the application until the actual termination of work.

The form of the order and the grounds for terminating the employment contract in the order

The order of the head of the organization on the termination of labor relations with the employee is a local document of the organization, issued in the form of an order, with the signing of which the employee is considered to be dismissed from his position, and the employment relationship between him and the employer is terminated.

Order Form

Until 01/01/2013, when an employee was dismissed at his own request, an authorized person in the organization (personnel worker or accountant) issued an order by filling out the lines of the unified form No. T-8. This form was developed by the State Statistics Committee of the Russian Federation and approved by the Decree “On Approval of Unified Forms ...” dated 05.01.04 No. 1 as a standard and mandatory document for use by organizations throughout the Russian Federation.

Since 01/01/2013 the law "On Accounting" dated 12/06/2011 No. 402-FZ, the obligation to apply the unified form No. T-8 has been abolished. In this regard, organizations have acquired the right to independently approve the forms of orders for the dismissal of employees.

Rules for the design of the column "Grounds for dismissal" in the order

The reason for dismissal is a mandatory paragraph of the above order. If the organization continues to use the unified form No. T-8 as the primary personnel document, then in the column on the grounds for dismissal, the text must be indicated in strict accordance with the wording of the relevant article of the Labor Code of the Russian Federation, with reference to it (section "Instructions for use ..." of the resolution of the State Statistics Committee No. 1).

If the organization has approved its own accounting form of the order, which is part of the primary documentation, then it should be drawn up in accordance with the instructions of paragraph 2 of Art. 9 of Law No. 402-FZ, including the following details:

• the name of the order and the date of its execution;
• the name and basic details of the organization;
• the content and essence of the fact of the organization's activities (in this case, the dismissal of an employee);
• the names of the positions and signatures of the persons indicated in the document.

In the text of the order regarding the grounds for termination, a reference to the norm of the law must also be given.

Sample order to terminate a fixed-term employment contract

Next, we will consider a sample of an order for the dismissal of an employee at his personal request, using the example of termination of an employment contract concluded for a specific period. reason for dismissal of his own free will. It matters only when the employee needs to arrange care as soon as possible, without working off. In cases provided for by law, the employer has no right to oppose the intention of the employee. In the absence of good reasons, if it is not possible to agree on dismissal ahead of time, the employee is obliged to complete it before the due date.

Reasons for leaving a job vary. Termination of an employment contract is possible (Article 77 of the Labor Code of the Russian Federation):

• at the initiative of the employee;
• at the initiative of the employer;
• by agreement of the parties;
• due to the expiration of the employment contract, etc.

Of course, any employee is primarily interested in what could be the reasons for dismissal at the initiative of the employer (clause 4, article 77 of the Labor Code of the Russian Federation). Firstly, with a newly minted employee, an employment contract can be terminated due to failure to pass the probationary period (Article 71 of the Labor Code of the Russian Federation). In such a situation, the employee must be notified of the employer's decision in writing no later than 3 days in advance. Moreover, the reason for the dismissal must be indicated in the conclusion on the test, that is, why the employee does not correspond to the position held.

Secondly, the employer is often forced to fire his employees, so to speak, for objective reasons. For example, during the liquidation of an organization, with a reduction in the number or staff (clauses 1, 2 of article 81 of the Labor Code of the Russian Federation). And the head or chief accountant can easily be fired by the new owner of the organization (clause 4, article 81 of the Labor Code of the Russian Federation).

But the Labor Code of the Russian Federation also provides for reasons for dismissal for delinquent workers.

Reasons for dismissal from work under the Labor Code of the Russian Federation for violations

The remaining reasons for dismissal at the initiative of the employer (which we did not talk about above), named in the Labor Code of the Russian Federation, are associated either with a mismatch of the employee’s qualifications with the position held / work performed, which is clarified as a result of certification (clause 3 of article 81 of the Labor Code of the Russian Federation), or with any violation committed by the employee. It could be, for example:

• absenteeism, or the absence of an employee at the workplace for more than 4 hours in a row during the working day (shift) without good reason (clause “a”, clause 6, article 81 of the Labor Code of the Russian Federation);
• the appearance of an employee at work in a state of alcoholic, drug intoxication (paragraph “b”, paragraph 6, article 81 of the Labor Code of the Russian Federation);
• the commission of theft of another's property at the place of work, embezzlement, established by a court verdict (subparagraph "d", paragraph 6 of article 81 of the Labor Code of the Russian Federation), etc.

At the same time, it is extremely important for the employer to comply with the dismissal procedure: from drawing up an act fixing the violation, and ending with an order for dismissal.

Let's say your employee skipped a day's work. In this case, if the organization does not have an electronic automatic system for recording employees at the checkpoint, it is necessary to draw up an act on the absence of an employee at the workplace. Or the immediate supervisor of the employee can write a memorandum. After that, you need to ask for an explanation from the absentee for what reasons he did not show up for work (Article 193 of the Labor Code of the Russian Federation). If it is clear from the explanations that he has no good reasons, but he still does not go to work, you will have the right to apply sanctions to him, including dismissal (clause 3 of article 192 of the Labor Code of the Russian Federation). Next, you should issue an order to terminate the employment contract and set out in it all the circumstances, including the dates of absenteeism.

“Fired from work for no reason: what to do”

It is not uncommon to come across online discussions about someone getting fired from their job for no reason. But the reason for the termination of the employment contract with the employee must be reflected not only in the dismissal order (as noted above), but also in the work book. Moreover, in strict accordance with the wording of the Labor Code of the Russian Federation or another federal law, in accordance with which an employee is fired (Article 84.1 of the Labor Code of the Russian Federation). Yes, and with the order of dismissal, the employee must be familiarized with signature. That is, the employee actually finds out the reason for the dismissal.

It is important to understand that all possible grounds for terminating an employment contract are named in the Labor Code of the Russian Federation. The employer does not have the right to "invent" a new reason for dismissal and just say goodbye to the employee. And in case of unlawful dismissal, including in case of non-compliance with the dismissal procedure, the employee can always go to court. And with a good outcome, he will be reinstated at work.