Termination of the employment contract by agreement of the parties. Grounds for termination of the employment contract at the initiative of the employee

The law regulates in detail the termination employment contract at the initiative of the employer. The fact is that it is in this matter that the employee is the least protected, and the field of possible abuse for the employer is wide, as in no other area of ​​labor relations. Therefore, the intervention of the law in this matter is quite justified.

Dismissal - strictly according to the law

The employer and the employee are parties to an employment contract, that is, an agreement of the parties on the establishment of labor relations between them.

The right of the employer to conclude, amend and terminate (or terminate, which is the same thing) employment contracts in the manner and under the conditions established by the Labor Code of the Russian Federation is enshrined in its Art. 22.

It corresponds to the same right of the employee (Article 21 of the Labor Code).

This means that the employer cannot arbitrarily dismiss an employee on his own initiative, there must be legal grounds for this. Compliance with the procedure for terminating an employment contract at the initiative of the employer is also necessary condition its legitimacy.

Grounds for dismissal

Dismissal for wrongdoing

The fact of theft, embezzlement or deliberate destruction must be established by a judicial act (sentence, decision), which has entered into force.

The falsity of the document submitted by the employee must be properly established and recorded (for example, by a special examination).

Conditions for terminating an employment contract at the initiative of the employer

Each group of grounds has its own order and procedure for dismissal, enshrined in law. Their non-compliance may lead to the reinstatement of the employee at work and the administrative responsibility of the employer under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

But there are also general terms and Conditions: an employee dismissed at the initiative of the employer should not be on vacation or be on sick leave at this time (except in cases of liquidation of the organization or termination of the activity of the individual entrepreneur).

The dismissal of an employee during such periods is prohibited by Part 6 of Art. 81 of the Labor Code of the Russian Federation. Neglecting this rule can also cost the employer dearly.

All the grounds for termination of an employment contract listed in the article at the initiative of the employer apply to both fixed-term and open-ended contracts .

The employer has the right to terminate the employment contract with the employee on his own initiative. But there must be good reasons for this.
This article states that grounds for termination labor activity employee at the initiative of the employer are:

• liquidation of the enterprise;
• termination of IP activities;
• reduction;
• inconsistency of this employee with the position he occupies;
• change of ownership of the employer's property;
• numerous violations of labor discipline, as well as internal regulations;
• repeated neglect and disregard for job duties;
• absenteeism;
• alcohol or drug intoxication of an employee;
• disclosure of state (or other) secrets;
• committing at the place of work theft or other offense related to embezzlement Money or damage to someone else's property;
• violation by the employee of the rules of labor protection, which resulted in an accident at work;
• loss of confidence on the part of the employer;
• committing an immoral act;

In order to dismiss an employee at the initiative of the employer, all of the above violations must be recorded by the employer and witnesses. The employee must be familiar with all documents. When committing a misconduct, which is the basis for dismissal, the employer must receive a written explanation from the employee. If the employee refuses to write it, the employer must draw up an appropriate act, in which, in addition to his signature, there will be the signatures of two more witnesses. Only then can a dismissal order be issued.

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

An employer can dismiss his employee only on the above grounds. We need to consider them in more detail:

• liquidation of the enterprise or termination of the activity of the individual entrepreneur. The employer can be entity and individual entrepreneur. When an enterprise closes, all employees are subject to dismissal;
• reduction of positions or the total number of employees of the enterprise;
• The employee is in a position for which he or she does not qualify. Non-compliance is determined by the performance appraisal of employees;
• change of ownership of the employer's property. On this basis, only the head of the enterprise, his deputies and the chief accountant can be dismissed. For other employees, this is not a reason for dismissal;
• the employee systematically violates discipline, as well as the norms of internal regulations. Upon admission to work, the employee must be familiarized with these rules by putting his signature in the appropriate journal. If this is not done, then it is quite difficult to apply this ground for dismissal;
• the employee systematically does not fulfill his labor duties prescribed in his job description. Upon hiring, the employer must familiarize the new employee with job description, which indicates all the labor duties of the employee. The employer has the right to dismiss on this basis only if the employee already has a disciplinary sanction on the same basis;
• absenteeism. Absenteeism is the absence from work of an employee without good reasons more than 4 hours in a row;
• the employee came to work in narcotic, alcoholic or toxic intoxication. This fact must be confirmed by the conclusion of physicians. The presence of a characteristic odor is not grounds for dismissal;
• disclosure of state (or other) secrets. On this basis, only the employee whose labor activity is directly related to state (or other) secrets can be dismissed;
• committing at the place of work theft or other offense related to the embezzlement of money or damage to someone else's property. The fact of committing such an offense must be proven by a court verdict in a case of an administrative offense;
• violation by the employee of labor protection rules, which resulted in an accident at work. The fact of the violation must be established by the commissions for the investigation of accidents at work;
• loss of confidence on the part of the employer. It is possible to dismiss on this basis if the employee’s work is related to the maintenance of monetary and material values;
• committing an immoral act that dishonors the moral character of a teacher;
• adoption by the head of the enterprise of a decision that led to financial losses;
• repeated ignoring by the head, his deputies and the chief accountant of their labor duties, which led to financial losses at the enterprise;
• submission by the employee, at the conclusion of the employment contract, false documents or information that does not correspond to reality;
• violation of the terms of the employment contract.

The procedure for terminating an employment contract

If an employee decides to dismiss one of his employees, and there is one of the above grounds for this, he must follow the dismissal procedure. Otherwise, the employee can sue the employer, challenge the dismissal, and be reinstated.

Before firing, an employer must:

• agree on all the conditions for the upcoming dismissal;
• find out if this employee belongs to categories that are not subject to dismissal;
• pay severance pay and termination compensation. This does not always have to be done!

In some cases, the employer must take into account the opinion of the trade union organization. This is necessary in the following cases:

• in case of downsizing;
• if the employee occupies a position for which he does not correspond;
• if he systematically violates discipline.

In addition, you cannot dismiss:

• if an employee is sick;
• is on vacation;
• a pregnant employee, even if she skips work;
• women who are raising children under 3 years old;
• mother - alone, if the child is not yet 14 years old. And if he is disabled, then until he is 18 years old;
• an employee with dependent children under 14 years of age.

An exception to these rules is the liquidation of an enterprise. The above rules do not apply if a legal entity or entrepreneur completely ceases to operate.

In Art. 178 of the Labor Code of the Russian Federation indicates cases when an employer must pay a severance pay to a dismissed employee.

In what cases is termination possible?

Termination of an employment contract with an employee at the initiative of the employer is possible only in cases where the identified violation or misconduct of the employee is properly recorded. That is, a large burden of administrative work falls on the employer.
If the reason is a reduction in staff or the liquidation of an enterprise (termination of activities), then employees must be notified 2 months before the proposed events. In addition, they need to pay severance pay.

In all other cases, when there is an employee's fault, it must be recorded and formalized. For example, an employee came to work in a state of intoxication. He smells appropriate. But the smell is not grounds for dismissal. Must visit with worker medical institution which is licensed to carry out surveys. After passing the necessary tests, the doctor will issue an appropriate conclusion, which will be certified by the seal of this institution. This conclusion will become the basis for imposing on this employee disciplinary action in the form of layoffs. Accordingly, it will be necessary to issue an order based on this paper. But it is necessary to require written explanations from the employee. Any refusal of the employee must be accompanied by the execution of the relevant act, which must be signed by two witnesses.

So correct design all paperwork required. Important! If the employer does not want to "mess around" with personnel documentation, he can offer the guilty employee to quit by agreement of the parties. Many employees make this compromise, as it avoids an unpleasant entry in the work book.

If the employee is guilty of any actions, and this guilt is proven, then the employer offers him to quit “quietly”, without filling out the necessary papers, without a corresponding entry in the work book, but also without severance pay. As a rule, an employee writes a letter of resignation "by own will”, and upon dismissal receives his salary and compensation for vacation. This option, as a rule, suits both parties.

Payments and compensation upon termination at the initiative of the employer

In some cases, such as layoffs or the complete closure of the enterprise, the employer must pay severance pay to his employees. It is compensation for the fact that, by liquidating, the employer deprives them of their legal right to work.
First of all, all employees must be warned. This must be done at least 2 months before the start of the proposed activities. Notification takes place only in writing, under the signature of each employee. Then work continues as usual, nothing changes for the workers. The employee may leave before the end of this 2-month period. He must notify the employer about this, and then the latter must pay him additional compensation.

When the above 2 months expire, employees are subject to dismissal. On the last working day, the employer must pay them:

• wages for actual hours worked;
• compensation for unused vacation;
• severance pay.

The composition of the severance pay includes compensation in the form of the average earnings of this employee. The employer pays his employees 2 such earnings, that is, for the next 2 months after the dismissal. In addition, if the employee agrees to dismissal before the expiration of the 2-month period before the proposed reduction, the employer must pay him severance pay for another 1 month.

To pay severance pay, you need to calculate average earnings specific employee for Last year. For example, an employee leaves in March 2018. Then the billing period will be the period from 03/01/2017 to 02/28/2018. If he has not worked even a year, then the actually worked time is taken for calculation.

In addition, a collective or employment agreement may provide for a different amount of severance pay. It will be paid not instead of the one provided by law, but along with it. Without payment of compensation, an employer cannot lay off or lay off its employees. This is a violation of labor laws. Compensation must be paid on the last business day along with salary and vacation pay. A resigning employee may conclude an agreement with the employer, and resign by agreement of the parties. In this agreement, the employee can specify the desired amount of severance pay, which will in no way depend on his average earnings. As a rule, employers go for such a dismissal, as this frees them from following the personnel reduction procedure and “paper” work.

SECTION III. LABOR CONTRACT

Chapter 13. TERMINATION OF AN EMPLOYMENT CONTRACT

Article 77. General grounds for termination of an employment contract

The grounds for termination of an employment contract are:

1) agreement of the parties (Article 78 of this Code);

2) expiration of the term of the employment contract (Article 79 of the Code), except in cases where 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) 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(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 employee's refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer (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.

Article 78. Termination of an employment contract by agreement of the parties

The employment contract may be terminated at any time by agreement of the parties to the employment contract.

Article 79. Termination of a fixed-term employment contract

A fixed-term employment contract is terminated upon expiration of its validity period. The employee must be notified in writing about the termination of the employment contract due to its expiration at least three calendar days before the dismissal, except for cases when the term of the fixed-term employment contract concluded for the period of performance of the duties of the absent employee expires.

An employment contract concluded for the duration of a certain work is terminated upon completion of this work.

An employment contract concluded for the duration of the performance of the duties of an absent employee is terminated when this employee returns to work.

An employment contract concluded for the performance of seasonal work during a certain period (season) terminates at the end of this period (season).

Article 80

The employee has the right to terminate the employment contract by notifying the employer in writing no later than two weeks in advance, unless another period is established by this Code or other federal law. The specified period begins the next day after the employer receives the employee's application for dismissal.

By agreement between the employee and the employer, the employment contract may be terminated even before the expiration of the notice of dismissal.

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

Prior to the expiration of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out if another employee is not invited in his place in writing, who, in accordance with this Code and other federal laws, cannot be refused to conclude an employment contract.

Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer must give the employee work book, other documents related to work, at the written request of the employee and make the final settlement with him.

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

Article 81. Termination of an employment contract at the initiative of the employer

The employment contract may be terminated by the employer in the following cases:

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

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

3) non-compliance of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification;

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

5) repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;

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

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

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

in) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;

G) committing at the place of work theft (including small) of another's property, embezzlement, its deliberate 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) violation of labor protection requirements by the employee established by the labor protection commission or the labor protection commissioner, if this violation entailed grave consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;

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

7.1) failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or inaccurate information about his income, expenses, property and liabilities of a property nature, or failure to provide or submit knowingly incomplete or inaccurate information about income, expenses, property and property obligations of their spouse and minor children, opening (presence) of accounts (deposits), keeping cash and valuables in foreign banks located outside the territory of the Russian Federation, possession and (or) use of foreign financial instruments by an employee, his spouse and minor children in the cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to loss of confidence in the employee on the part of the employer;

8) committed by an employee performing educational functions, an immoral act incompatible with the continuation of this work;

9) making an unreasonable 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) submission by the employee to the employer of false documents when concluding an employment contract;

12) has lost its power.

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

14) in other cases established by this Code and other federal laws.

The procedure for conducting 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 employees.

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or a lower paid job) which 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 collective agreement agreements, employment contracts.

In the event of termination of the activities of a branch, representative office or other separate structural subdivision of an organization located in another locality, termination of employment contracts with employees of this subdivision is carried out according to the rules provided for in 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 the guilty actions that give grounds for the 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 (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during the period of vacation.

Article 82

When deciding to reduce the number or staff of employees of an organization, an individual entrepreneur and the possible termination of employment contracts with employees in accordance with paragraph 2 of part one of Article 81 of this Code, the employer is obliged to notify the elected body of the primary trade union organization in writing no later than two months in advance. before the start of the relevant events, and if the decision to reduce the number or staff of employees may lead to mass layoffs of employees - no later than three months before the start of the relevant events. Criteria for mass layoffs are determined in industry and (or) territorial agreements.

The dismissal of employees who are members of a trade union on the grounds provided for in paragraphs 2, 3 or 5 of the first part of Article 81 of this Code is carried out taking into account the reasoned opinion of the elected body of the primary trade union organization in accordance with Article 373 of this Code.

When conducting certification, which may serve as a basis for the dismissal of employees in accordance with clause 3 of part one of Article 81 of this Code, to the composition of the certification commission in without fail a representative of the elected body of the corresponding primary trade union organization is included.

The collective agreement may establish a different procedure for the mandatory participation of the elected body of the primary trade union organization in the consideration of issues related to the termination of the employment contract at the initiative of the employer.

Article 83. Termination of an employment contract due to circumstances beyond the control of the parties

An employment contract is subject to termination due to circumstances beyond the control of the parties:

1) conscription of an employee for military service or sending him to an alternative civilian service that replaces it;

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

3) non-election to office;

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

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

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

7) the onset of emergency circumstances that prevent the continuation of labor relations (military operations, disaster, 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 body state power the corresponding subject of the Russian Federation;

8) disqualification or other administrative punishment, excluding the possibility for the employee to perform duties under an employment contract;

9) expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to manage vehicle, the right to bear arms, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility for the employee to fulfill his obligations under an employment contract;

10) termination of admission to the state. secret, if the work performed requires such clearance;

11) cancellation of a court decision or cancellation (recognition as illegal) of a decision of the state labor inspectorate to reinstate an employee at work;

12) has lost its power.

13) the emergence of restrictions established by this Code, other federal law and excluding the possibility of the employee fulfilling obligations under an employment contract on engaging in certain types of labor activity.

Termination of an employment contract on the grounds provided for in paragraphs 2, 8, 9, 10 or 13 of part one of this article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (as a vacant position or a job corresponding to the qualifications of the employee, so and a vacant subordinate position or lower-paid job) 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.

Article 84 the law of the rules for concluding an employment contract

An employment contract is terminated as a result of a violation of the provisions of this Code or other fed. the law of the rules for his conclusion (clause 11 of the first part of article 77 of this Code), if violation of these rules excludes the possibility of continuing work, in the following cases:

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

The conclusion of an employment contract for the performance of work that is contraindicated for this employee for health reasons in accordance with a medical certificate issued in accordance with the procedure established by the Fed. laws and other regulatory legal acts of the Russian Federation;

The absence of an appropriate document on education and (or) qualifications, if the performance of work requires special knowledge in accordance with federal law or other regulatory legal act;

The conclusion of an employment contract in violation of the decision of a judge, body, official authorized to consider cases of administrative offenses, on disqualification or other administrative punishment that precludes the employee from fulfilling obligations under an employment contract, or the conclusion of an employment contract in violation of the established federal laws. laws of restrictions, prohibitions and requirements regarding the involvement in labor activity of citizens dismissed from the state or municipal service;

The conclusion of an employment contract in violation of the restrictions established by this Code, other federal law on engaging in certain types of labor activity;

In other cases provided for by federal laws.

In the cases provided for by part one of this article, the employment contract is terminated if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job) that the employee can perform according to 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.

If the 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 a severance pay in the amount of the average monthly earnings. If the violation of these rules is due to the fault of the employee, then the employer is not obliged to offer him another job, and the employee is not paid severance pay.

Article 84.1. General procedure for processing the termination of an employment contract

The termination of the employment contract is formalized by the order (instruction) of the employer.

The employee must be familiarized with the order (instruction) of the employer to terminate the employment contract against signature. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction). In the event that the order (instruction) to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to get acquainted with it against signature, an appropriate entry is made on the order (instruction).

The day of termination of the employment contract in all cases is the last day of the employee's work, with the exception of cases when the employee did not actually work, but behind him, in accordance with present. Code or other fed. by law, the place of work (position) was preserved.

On the day of termination of the employment contract, the employer is obliged to issue a work book to the employee and make settlements with him in accordance with Article 140 of this Code. At the written request of the employee, the employer is also obliged to provide him with duly certified copies of documents related to work.

Note: the employer is also obliged to issue to the employee on the day of termination of work a certificate of the amount of earnings for two calendar years preceding the year of termination of work.

An entry in the work book on the basis and reason for the termination of the employment contract must be made in strict accordance with the wording of this Code or another federal law and with reference to the relevant article, part of the article, paragraph of the article of this Code or other federal law.

In the event that it is impossible to issue a work book to an employee on the day of termination of the employment contract due to his absence or refusal to receive it, the employer is obliged to send a notification to the employee about the need to appear for the work book or agree to send it by mail. From the date of sending the said notification, the employer is released from liability for the delay in issuing a work book.

The employer is also not responsible for the delay in issuing a work book in cases of mismatch last day work with the day of registration of the termination of labor relations upon dismissal of an employee on the grounds provided for in subparagraph "a" of paragraph 6 of part one of Art. 81 or paragraph 4 of the first part of Art. 83 present of the Code, and upon dismissal of a woman, the term of the employment contract with which was extended until the end of pregnancy or until the end of maternity leave in accordance with part two of Art. 261 present Code. At the written request of an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee's request.

The initiator of the termination of the contract can be both the employer and 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 record of dismissal, you can see a link to article 77 of the Labor Code of the Russian Federation, containing complete list conditions for terminating the contract. Some of the articles of Chapter 13 of the Labor Code contain only the 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 the 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 of the Labor Code of the Russian Federation. This ground applies if neither party is interested in extending the relationship.

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

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

It is worth noting that it is not necessary to include everything in the agreement. If these conditions are already provided for by the code and they are fulfilled in the process of dismissal, then they are not required to be prescribed. But if the employee cannot receive the 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 the dismissal, there is still only one initiator. If he is an employee, he writes a statement to the manager. If the company, then the manager sends an offer to the employee.

Contract expiration

This basis applies only to fixed-term employment contracts. At the same time, the contract must necessarily indicate the date of dismissal, or an event is described, the occurrence of which leads to the expiration of the term. An exception is the situation when the employee continues to work after the described date has passed. In this case, the contract will automatically be considered open-ended.

The expiration date may be:

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

Not later than 3 calendar days, the employee must be notified in writing about the date of termination of the contract. An exception is if the reason for the termination of the contract is the exit of the main employee. This is due to the fact that the main employee is not required to notify the employer about the date of return to work and the dismissal occurs on the day of his release.

Own wish

Termination of the employment contract at the initiative of the employee is carried out according to paragraph 3 of Art. 77 of the Labor Code of the Russian Federation. The employee should not report 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 the dismissal. If an employee has not been dismissed after a regulated period, he can file a complaint with labor inspection 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 “quickest” way to get rid of a new employee is for an employer to probationary period. At the same time, an assessment of the beginner's knowledge should be carried out and his weak sides. The test subject must be notified of the unsatisfactory test scores and the intention to leave him. The notice period is 3 calendar days before the expected date.

Before starting the dismissal procedure for not passing the probationary period, check with the employment contract. If the date of termination of the TD goes beyond the probationary period, the dismissal will be illegal.

Other reasons for dismissal under 81 Art. TC RF:

• Liquidation of company;
• inconsistency with the position held;
• change of ownership;
• violation of labor duties;
• other reasons for termination of the employment contract.

The grounds for termination are different for each case, and therefore the procedures. If we talk about liquidation and reduction, then the decision of the management team will be the reason. These two dismissals are long 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.

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

Transfer to another employer

Also, one of the grounds for terminating 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 mistakenly believe that such a transfer saves non-vacation leave, but this is not so. This could be possible if it was an internal transfer within the same legal entity. But when transferring to another legal entity, there is no succession.

The reasons for termination of the employment contract, which the parties are unable to influence, are presented in Art. 83 of the Labor Code of the Russian Federation. At the same time, both parties did not express a desire to end 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:
• non-election to office;
• conviction and serving a sentence in places of deprivation of liberty;
• disqualification;
• withdrawal of a license, driver's license and other special rights, if without them the implementation of labor is impossible for a period of more than 2 months;
• reinstatement by the court of an illegally dismissed employee, etc.

The procedure for terminating an employment contract

Depending on the grounds, the procedure can be radically different. 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 the employee's application or the employer's proposal in writing or in oral(step 1). Agreements reached as a result of negotiations are formalized in the form additional agreement to the employment contract (step 2).

Step 3. On the day of dismissal, an order for dismissal is issued in the form of 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 in the work book and its issuance to the employee.

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

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

Contract expiration

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

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

Employer initiative

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

Violation of labor duties and labor discipline requires more preparatory work. If we talk about absenteeism, then for a start an act of absence from the workplace is drawn up. If more than one day is absent, then there should be an appropriate number of acts. After the employee leaves for work, it is necessary to demand an explanation of the reasons for absenteeism. Evasion of explanation will not help to avoid consequences. In case of refusal to give explanations about the absence from the workplace, another act is drawn up. It includes a waiver of explanation. After that, an order is issued to reprimand the employee. After that, 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 is different. But for most cases, the appropriate paper is required for dismissal (summon to the army, medical report, death certificate). On the basis of such a document and the statement of the employee, and in the event of the death of the employee, the statement is written by one of the relatives, an order is issued in the form T-8.

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

The legal basis here will be the desire of the employee, 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 application has been received by the manager. Or send it by mail - by registered mail with acknowledgment of receipt.

M.O. BUYANOV

Dr. jurid. Sciences, Assoc. Department of Labor Law and Social Security Law of the Moscow State Law Academy

Benefits of termination of employment by agreement of the parties

The principle of voluntariness of an employment contract, enshrined in legislation, is manifested when it is concluded, changed, and in some cases, when it is terminated.
The voluntary termination of an employment contract is most clearly seen upon dismissal by agreement of the parties (clause 1, article 77, article 78 of the Labor Code of the Russian Federation). In other words, an employment contract can be terminated, as well as concluded, at the good will of both its parties at any time.
Such, it would seem, easy way termination of employment relations exists and is really fixed already quite long time in our legislation.

However, in practice this basis is used for some reason very rarely. At the same time, it is very beneficial for both parties to the contract (both the employee and the employer).

Benefits of termination of employment by agreement of the parties

Many employees say that they do not know that the agreement of the parties as the basis for terminating the employment contract is that it is better to quit "traditionally", that is, of their own free will.
Meanwhile, the employee may terminate the employment relationship on this basis at any time without working off the two-week notice period, as required upon dismissal at the initiative of the employee. At the same time, the continuous work experience of the employee (the duration of which affects the amount of temporary disability benefits) is not interrupted within one month after the dismissal.
The employer is afraid to apply this ground for dismissal, because, as a rule, he does not know what "agreement of the parties" means, in what order this can be done.
Dismissal on this basis is also beneficial for the employer, since it allows you to dismiss an "objectionable" employee without additional searches for grounds for terminating an employment contract with him.
This ground can be applied in all cases and under all circumstances, including instead of dismissal on grounds that discredit the employee, which will prevent a possible labor dispute and further litigation. In addition, this basis becomes a kind of "buffer" in the event of workers and other conflicts between the employee and the employer, which, unfortunately, are often encountered in practice. Thus, the conflict that has arisen between the subjects of the employment contract finds its logical outcome in dismissal by agreement of the parties.
In some cases, an employee who has committed disciplinary offense, he himself asks the employer not to dismiss him on discrediting grounds, promising that he will quit after "nth" time of his own free will. The employer, believing the employee and not dismissing him, misses the deadline for imposing a disciplinary sanction, while the employee, after the agreed time, declares that he has changed his mind about quitting.
You can avoid such conflicts by applying dismissal "by agreement of the parties."

Conditions for reaching mutual agreement between the employee and the employer

In accordance with paragraph 1 of Art. 77 and Art. 78 of the Labor Code of the Russian Federation, an employment contract can be terminated at any time by agreement between the employee and the employer. At the same time (in accordance with paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 "On the application by the courts of the Russian Federation Labor Code Russian Federation"), the cancellation of such an agreement on the basis and terms is allowed only with the mutual consent of the employee and the employer.

Unlike dismissal of one's own free will, upon termination of the employment contract by agreement of the parties, the employee cannot unilaterally "change his mind" to quit and withdraw the agreement without the consent of the employer

On whose initiative can an employment contract be terminated under paragraph 1 of Art. 77 of the Labor Code of the Russian Federation - an employee or an employer? Or both sides at the same time?

It seems that it is not the order of manifestation of the initiative that is of legal importance, but the very fact of reaching an agreement. At the same time, the employer, offering the employee to quit by agreement of the parties, cannot require the writing of an appropriate application. Arbitrage practice shows that if the employee writes a statement unilaterally about such dismissal, and the employer signs it and dismisses the employee, then when considering a dispute related to such dismissal, in court the latter is obliged to change the wording to "dismissal at the initiative of the employee" (p 3 article 77 of the Labor Code of the Russian Federation). Therefore, dismissal is allowed only if there is an agreement reached between the parties.

So, R. filed a lawsuit against 000 "Lotos" for reinstatement, recovery of earnings for the time of forced absenteeism and compensation for non-pecuniary damage. AT statement of claim he indicated that he had worked for the defendant since 15 January 2002 as an accountant. In March 2004, the organization changed CEO who brought his employees (including an accountant) with him. R. was offered to resign by agreement of the parties (clause 1, article 77 of the Labor Code of the Russian Federation). He had no intention of resigning, but the director threatened him with dismissal for violating labor discipline at the first opportunity (this fact was confirmed by witness testimony at the trial).
On April 28, 2004, R. wrote a letter of resignation under paragraph 1 of Art. 77 of the Labor Code of the Russian Federation and was dismissed on the specified basis.
As a result of consideration of this case, the Zamoskvoretsky District Court of Moscow ruled: to reinstate R. at work as an accountant, to recover from the defendant earnings for the time of forced absenteeism and compensation for moral damage caused in connection with illegal dismissal in the amount of 3000 rubles.

In making this decision, the court proceeded from the fact that since no agreement was concluded between the parties, the filing by the employee of a letter of resignation should be considered his unilateral declaration of will.
Upon dismissal by agreement of the parties, the employee and the employer must draw up and simultaneously sign common document(agreement), expressing their bilateral will. The signing of the application by the defendant cannot be recognized as committed simultaneously with the employee. Therefore (as the court believes), this dismissal should be qualified as termination of the employment contract at the initiative of the employee, i.e., according to paragraph 3 of Art. 77 (Article 80 of the Labor Code of the Russian Federation).
Since when considering a dispute about dismissal under paragraph 3 of Art. 77 of the Labor Code of the Russian Federation, the court needs to find out whether the employee’s desire was a genuine expression of his will or was committed under the influence of violence or threats from the employer (decree of the plenum of the Supreme Court of the Russian Federation dated March 17, 04 No. 2), then in this case the court came to the conclusion that R . wrote a letter of resignation by agreement of the parties under the threat of dismissal for violation of labor discipline.

Attention! The Labor Code of the Russian Federation does not contain a direct requirement for a written agreement to terminate an employment contract, however, in order to be able to further prove the existence of such an agreement, it is advisable to conclude it in writing

Moreover, the court took into account the fact that R. did not have the opportunity to exercise his right to withdraw the previously submitted application at any time (as indicated in Article 80 of the Labor Code of the Russian Federation) due to the incorrect wording of the grounds for dismissal.
After evaluating all the evidence collected in the case, the court issued a lawful and reasoned decision, which was upheld by the panel of judges on civil affairs Moscow City Court.
Judicial practice regarding dismissals on this basis shows that when concluding an agreement, the parties often include in it a condition that the employee does not have any claims against the employer. However, the employer must keep in mind that this condition infringes on the position of the employee in comparison with the current legislation, therefore, according to Art. 5 of the Labor Code of the Russian Federation, it is illegal (even if the employee voluntarily signs an agreement on such conditions).
Unfortunately, we also have to deal with cases of concluding an agreement (with an open date for dismissal) simultaneously with the signing of an employment contract. As long as the employee suits the employer, the agreement is not given a go. As soon as a conflict arises, the employer puts down the date of dismissal in the text of the agreement and dismisses the employee.
As a rule, an employee, being fired, is afraid to go to court, believing that he will not be able to recover, because the document (agreement) was signed by both parties at the same time.
Meanwhile, when considering such cases, the employee and his representative, as a rule, draw the attention of the court to the fact that the signing of the agreement and the date of dismissal were not made simultaneously. This fact can be proven by forensic examination agreements.
Due to the fact that the form and content of the agreement are not determined by the legislator, it seems that it should be drawn up in a written arbitrary form. It is only necessary that the content of such an agreement should contain: the name of the employer, the surname, name and patronymic of the employee who entered into the agreement; the expressed intention of the parties to terminate the employment contract under paragraph 1 of Art. 77 of the Labor Code of the Russian Federation (agreement of the parties); date of termination of employment.
Thus, when considering disputes about dismissal under paragraph 1 of Art. 77 of the Labor Code of the Russian Federation, the court needs to find out whether the parties have complied with the following conditions.