Typical grounds and procedure for terminating an employment contract. The procedure for terminating an employment contract with an employee

Termination employment contract at the request of the employee of the company, it is included in the dismissal process at its own own initiative. The employee must submit such an application at least 14 days before the expected day of departure.

Termination of employment contracts at the request of a subordinate: grounds

The labor agreement is always drawn up in writing and signed by both parties - the subordinate and the boss. It sets out obligations and rights:

• the employee undertakes to perform the work provided in accordance with the requirements of the head and be responsible for the performance of duties, obey the rules of the company;
• the employer undertakes to provide the subordinate with activities, pay wages in a timely manner and create acceptable working conditions.

Each employee has the right to terminate the contractual agreement under the following circumstances:

• Reason #1. The subordinate enters any educational institution.
• Reason number 2. The onset of retirement age.
• Reason number 3. Moving to another place of residence (city, country).
• Reason number 4. Violation of the rules of the labor legislation of the Russian Federation by the employer.
• Reason number 5. Deterioration of the health status of an employee, detection of a serious illness, disability.
• Reason number 6. Change of the owner of the company (if the new employer is not satisfied for one reason or another).
• Reason number 7. Creation by the employer worst conditions labor activity.
• Reason number 8. The company moves to another place, and the employee is not satisfied with this.

If the employee terminates the written agreement due to the above factors, he has every right not to finish 2 weeks. If the working period is set, then during this time the employee can change his mind and stay to work. But only in the situation when a new person has not yet been approved for the vacant position. On the day of calculation, the subordinate receives labor, all payments (salary, vacation funds, etc.) and the required documents.

Conditions for the full termination of the employment contract at the initiative of the employee

The main requirement for dismissal from the company at will is considered to be the notification of management at least 14 days before the date of settlement. A warning is necessary both for the leader and for the person himself. During this period, the manager must find a replacement for the employee, and the employee can change his mind during this period. Other conditions include the following:

• an application must be submitted in the form of a letter;
• the employer is obliged to draw up an order to terminate the contract;
• the employee must be familiarized with the order act (if it is impossible to implement this or the citizen refuses, a certain record is made);
• registration of records with calculations;
• a mark is made in the personal file of the employee.

In the Labor Code Russian Federation Art. 80 clearly spelled out the conditions and time for the employee to notify the manager of the termination of the TD. Usually it is 2 weeks, but there are exceptions, depending on the profession, the specifics of the work and the position held:

• with seasonal employment, a 2-month conclusion of a document, or in the case when a person is on probation, an application is allowed to be submitted three days before the date of dismissal;
• if an employee leaves a managerial position, he is obliged to notify the owner of the company 30 days in advance;
• when working in religious organizations or for individual entrepreneurs, the legal warning periods do not apply, since they are set on an individual basis;
• terms can be reduced by subordinates under specific circumstances specified in the Labor Code of Russia.

If all parties voluntarily decide to cancel the employment contract (TD) in the desired period, then the application can be written on any day.

How to terminate an employment contract correctly (video)

You can learn about Article 80 of the Labor Code of the Russian Federation and the requirements for termination of the contract at the initiative of an employee from the video provided to your attention:

Termination of a fixed-term employment contract at the request of the employee

Fixed term contract labor involves its compilation for a certain period of activity. For example, for several weeks or months, but no more than 5 years. This happens during seasonal work, for elected positions, in the case when you need to replace a person for a while (during maternity leave, a serious illness, etc.).

Features of termination of a fixed-term employment contract:

1. If the contract is drawn up for 3 or more months, then to terminate the employee must submit a warning application 14 days before the day of settlement.
2. With a 2-month conclusion of a contractual document, it is permissible to notify the employer 3 days in advance.
3. If the management agrees, then you can quit at any convenient day. The reason for this should be as good as possible.

Termination of TD by an employee during a probationary period

If a citizen is employed for a probationary period, then in order to terminate the TD with the company, he must submit a warning application letter within three days. At the same time, based on Art. 71 of the Labor Code of the Russian Federation, part 4, the worker is not required to explain the reason for terminating the contract.

In fact, there can be many reasons. For example, an employee is not satisfied with the working conditions, he did not work well with the team, he does not like the attitude of the management, he cannot cope with his official duties And so on.

The procedure for terminating the TD at the initiative of a subordinate

1. As mentioned above, the citizen is required to submit an application letter, which the management undertakes to register.
2. The employee's application is considered by personnel officials and directly by the employer.
3. A dismissal order is being prepared. It is made on a special form (unified form "T-8"). This form must be approved by the decision of the State. Committee of Statistics entitled "Approval of the form of a unified type of the first accounting documents for work and payment." The act must contain: the number of the order created, the date of issue, personal information about the worker, the position he occupies and the reason for leaving. Be sure to include the time and date final dismissal.
4. Further, the act is signed by the employer, and the resigning employee studies the order and puts his own signature in a special journal.
5. After that, the document is transferred to the "Accounting" department for drawing up a note-calculation with the accruals due to the citizen.
6. The work book records information about the dismissal, which corresponds to the definitions of the Labor Code of Russia.
7. Strictly on the last working day, a leaving citizen is given a work book, a certificate of income for the last 24 months (according to the approved form) and cash. Payments are made on the basis of Art. 84 p. 1 of the Labor Code of the Russian Federation. The accruals should include wages, vacation pay (if the vacation was not used) and, if necessary, compensation.

If the leaving citizen could not leave on the last day (he went to the hospital, etc.), then the head of the company is obliged to send him a notification indicating the time and date of receipt of the above documents and funds.

How to issue a dismissal of your own free will (video)

You can learn more about the features of terminating the contract at the request of the employee from the following video:

Employer Notice

In order to notify your employer of the calculation, you must write a statement in your own hand. This does not require special forms and forms. This is not provided by the TC. It is permissible to write the application in any form on an A4 sheet with a regular pen with blue or black ink.

The "header" of the application must indicate the name of the enterprise, full name of the owner of the enterprise. As well as their own data, position. A little lower strictly in the center you need to write "Statement". Then “I ask you to dismiss ...” indicating the reason and date of calculation. At the bottom, be sure to sign and put the date of submission of the document. If you do not want or are not able to work for the appointed time due to health reasons, be sure to indicate this in the application.

The application is submitted personally to the Human Resources Department or can be sent by mail. If you bring it yourself, then be sure to make a copy on which the employee of the personnel department must sign the acceptance of the document. If you send it by mail, then make the letter as registered or with notification.

This is necessary to avoid trouble. After all, it is not always known with certainty whether the manager will agree to fire you. He may refuse on the basis that the application was not received. For the same purposes, it is important to draw up and submit an application in accordance with the rules of the country's legislation.

Each manager has the right to put his own date in the resolution when signing the dismissal document. Pay attention to this in a timely manner!

Preparation of documents

After submitting an application letter at the initiative of the employee, the management undertakes to prepare the following documents:

1. Order-decree on the process of dismissal.
2. Certificate of contributions to the insurance policy throughout the work in this organization.
3. Certificate of salary for the last two years.
4. Certificate of duration of employment in the company.
5. Employment book with information about the dismissal.

The order in a strict manner must be created according to the generally accepted model, which was mentioned above. It contains all the information from the application provided by the subordinate and a reference to Art. 77 part 1, clause 3 of the Labor Code of the Russian Federation. At the end, the signature of the head and the leaving employee is put.

Calculation - features

The settlement process of a leaving citizen should be carried out on a general basis, taking into account the Labor Code of Russia. Termination of an employee's activity entails certain payments:

1. Amount earned for work, including the last working day. If there was a debt in wages, the manager is obliged to pay it off in full.
2. Holiday pay. The full amount of vacation pay is accrued only if the employee did not use the vacation in the current year. It also happens that vacation is used in advance. In this case, the accountant makes a recalculation, as a result of which a certain amount is withheld from the resigning employee.
3. Compensation payments are carried out only in such situations when the reason for the calculation at the initiative of the employee was a change in working conditions, etc. This clause should be spelled out in the original contract. The amount of compensation is determined on an individual level and is always agreed with the employee.

Settlement with the former employee must be made at the time of departure or no later than the next day.

Return of work book

Information about the dismissal must be entered in the employment documentation. It is filled in the last work shift of the resigning person. Entries are made on the basis of the relevant "Decree of the Ministry of Labor" under No. 69 (November 2003). But also taking into account the Instructions for compiling forms. The record format looks like this:

• column one - entry number;
• column two - the date of dismissal;
• column three - the reason for calculating a person on the basis of a certain article of the Labor Legislation with information about the person providing the job;
• section four - information about the application letter, thanks to which the employee quits.

Frequently asked Questions

Is it necessary to work out?

This question is rather sensitive, because the result directly depends on the current situation. Based on Art. 80 h. 3, a resigning person is not required to work for 14 days. But at the same time, he must warn management in advance of the possibility of dismissal. This is required by the same article of the Labor Code.

First of all, this is necessary for the manager, since it is important to find a replacement for the employee. To bypass working off, it is necessary to indicate in the application document on dismissal the appropriate reason, due to which the urgency of dismissal is required.

In this capacity, there may be a deteriorating state of health, retirement, violation of labor rules or worsening working conditions on the part of management. Only in this case, dismissal without working out is possible.

What to do if a person changes his mind about paying?

Article 80 part 4 assumes: if the calculation is initiated by the employee and at the same time the boss has no claims against him (does not seek dismissal), then the subordinate has the right to cancel the application. The worker can withdraw it during the period of working off, up to the last working hour.

For this, another statement is being written, which will refute the previous one. This is possible only when the manager has not yet hired a new subordinate. There are situations when a person first goes on vacation and quits immediately after it. This situation assumes that a change of decision is possible in the period until the day of official leave begins.

What if the employer does not want to fire (let go)?

Yes, it happens. To prevent this, it is important to record the submission of the application. That is, when handing it over to the personnel department, you must make a copy and sign it with an authorized person. In this case, the owner of the company will not be able to keep the employee after 2 weeks of work.

If he still resists, you can safely go to court or Labor Inspectorate. The reason may be, for example, that you are already waiting for new job. There can be many reasons. The main thing to know is that management has no right to keep an employee by force.

Knowing all the intricacies of termination of an employment contract by a subordinate, observing all the requirements and conditions of the law, you can safely count on a positive result of dismissal. Remember that the law of the Russian Federation provides for the degree of protection for each employee.

"HR officer. Labor law for a personnel officer", 2009, N 8

The procedure for terminating the employment contract at the initiative of the employee

Situations when the employee does not want (or cannot) continue to work for another two weeks at this enterprise, and the employer agrees to dismissal due to own will worker is a common phenomenon. In this regard, the legislator has provided for several deviations from the general procedure for terminating an employment contract on the grounds under consideration. The author analyzes how labor legislation has changed on this issue, and also gives recommendations to modern personnel officers on the practice of dismissals.

The latest Labor Code, like all previous Codes, from 1918 to the present, as an independent basis for the termination of an employment contract, provides in paragraph 3 of part 1 of Art. 77 termination of the employment contract at the initiative of the employee. This basis is recognized in practice as the most common. The procedure for terminating an employment contract on this basis is established in Art. 80 of the Labor Code of the Russian Federation. This order is of a general nature, since it is provided for the termination of employment contracts concluded for a fixed and indefinite period, and is applicable to all employees.

Worker's right

Let's start with the fact that the employee has the right, without explaining the reasons, to express an initiative aimed at terminating the employment contract (part 1 of article 80 of the Labor Code of the Russian Federation). For the modern general procedure for dismissal of one's own free will, in contrast to the previous one, it is not necessary to indicate the reasons that prompted the employee to do so. When exercising the right to terminate the employment contract, the employee expresses his will voluntarily in writing (in a letter of resignation). Attention is drawn to this in the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" (as amended on December 28, 2006; hereinafter - Resolution of the Supreme Court of the Russian Federation N 2): filing a letter of resignation is voluntary expression of will (clause "a", clause 22).

From a legal point of view, the presence of a letter of resignation does not terminate the employment contract, but expresses the will (intention) of the employee to quit, so his labor Relations with the enterprise continue. Consequently, the employee at this time continues to perform the labor function and complies with the rules of internal labor regulations. Otherwise, he may be dismissed at the initiative of the employer. The termination of the employment contract will occur only after the issuance of the dismissal order and the execution of the corresponding entry in the employee's work book. Legal and actual termination of labor relations is connected with this moment. The day of termination of the employment contract is the last day of work, on which, as a rule, an order is issued to dismiss the employee (based on Article 84.1 of the Labor Code of the Russian Federation).

The second rule is related to the first: the employee, exercising his right to terminate the employment contract on his own initiative, warns the employer within the time set by the legislator. This time is designated in labor law as the notice period for dismissal. Note that according to the Labor Code of 1918, the rule of warning the employer about the upcoming dismissal was not provided. It was introduced in 1922 and has been preserved to the present. This rule consists in the obligatory warning by the employee of the employer about the upcoming dismissal of his own free will (at the request of the employee). The meaning of this provision is clear - to warn the employer about the termination of the employment contract, so that during this time he can find a new employee.

In Art. 46 of the Labor Code of 1922, when terminating an employment contract concluded for an indefinite period, the employee was required to notify the employer: for a weekly calculation - at least one day in advance, and for a 2-week or monthly calculation - at least 7 days in advance. Moreover, the article itself stated that "the hired person may demand its termination at any time." In the modern interpretation of this provision, the legislator does not focus on the fact that the contract can be terminated at the request of the employee "at any time." Since this kind of clarification is superfluous: dismissal is possible at any time when the employee deems it necessary.

Warning period

As before in Art. 31 Labor Code of 1971, in modern form in Art. 80 of the Labor Code of the Russian Federation provides for the right of an employee to terminate an employment contract by notifying the employer in writing 2 weeks in advance. The specific duration of the term was indicated in Part 1 of Art. 80 of the Labor Code of the Russian Federation, as amended. 2001 and was equal to 2 weeks. AT modern conditions this period appears to be the result of a very successful searches in theory and practice legal regulation this type of relationship for more than 35 years. So, according to R.Z. Livshits, "the notice period for dismissal was increased from two weeks (Labor Code of 1971) to one month in 1979 and up to two months in 1983. The purpose of the change is obvious: to make it difficult to dismiss, to prevent turnover. Has this goal been achieved? Practice testifies , what is not". Then the opposite picture is observed: the warning period at its own request changed from 2 months to 2 weeks - according to the current legislation (Article 80 of the Labor Code of the Russian Federation).

Thus, the notice period for dismissal of one's own free will was first set at 2 weeks, then it increases to 2 months, and then the legislator returns to the originally established one, as to more best option. Therefore, this period had to be set so long as to satisfy the interests of both the employee and the employer. And it was the 2-week period that was in this regard optimal for the parties and confirmed by the practice of legal regulation of this group of relations. During this time, the employee completes the solution of all the issues he needs, working at his previous place of work, and the employer is looking for a new employee in his place. Before the expiration of this period, the employer is not entitled to dismiss the employee under Art. 80 of the Labor Code of the Russian Federation in connection with his own desire. This period seems to be economically and socially justified at the present time.

Innovations

In connection with the issues under consideration, let us pay attention to some new provisions introduced in June 2006 in the Labor Code of the Russian Federation. Prior to these changes, the warning period was set for a specific duration (2 weeks). This technique is absolutely right, in our opinion, was perceived by the legislator and preserved as a result of the fourth codification of labor legislation, which was enshrined in Art. 80 of the Code as amended in 2001. As a result of changes (as amended by the Federal Law of 30.06.2006) to the above provision of Art. 80 of the Labor Code of the Russian Federation, a clarification was made - "no later than two weeks in advance." The clarification introduced somewhat changes the rules for the application of Part 1 of Art. 80 of the Labor Code of the Russian Federation: a letter of resignation can be submitted earlier (one month, two or more early term), most importantly - not later than the deadline. In other words, the legislator, setting a time limit on the one hand, does not set it on the other.

It is interesting from the standpoint of the issues under consideration and the second innovation, which was enshrined in Part 1 of Art. 80 of the Labor Code of the Russian Federation: "The specified period begins on the day after the employer receives the employee's application for dismissal." It should be noted what is considered such receipt in the organization, given that the employer in this case is not the head of the employee, but the legal entity itself.

From a legal point of view, Art. 80 of the Labor Code of the Russian Federation, which establishes the general procedure for terminating an employment contract at the initiative of an employee, the construction is quite clearly visible:

The will of the employee (expressed in the application for termination of the employment contract);

Expiration of the termination notice period (14 days of work at the place of work in the conditions and in the position established by the employment contract);

Termination of the employment contract (issuing an order, making an entry in the work book, calculation).

Of course, this legal construction is embodied in practice in the usual process, expressing the general procedure for dismissal at the employee's own request, without any derogations. Nevertheless, situations are possible when the employee does not want (or cannot) continue working for another 2 weeks at this enterprise, and the employer agrees to dismiss the employee on the initiative (the employee's own will). In this regard, the legislator provided for several deviations from the general procedure ( general design) termination of the employment contract on the grounds under consideration. These deviations can be presented as an exception to general rule. We will immediately make a reservation that these exceptions are connected with a change in the 2-week period established by the legislator upon dismissal of the employee at his own request.

Exceptions to the general rule

There are two such deviations. One is related to any possible circumstances of the parties, according to which the period of notice of dismissal can be changed (as a rule, reduced). The second is related to the impossibility of continuing the work. Let's consider them in the proposed sequence.

The first is not new; it was introduced in Part 4 of Art. 31 of the previously valid Labor Code of the Russian Federation by Decree of the Presidium of the Supreme Council of the RSFSR on December 20, 1983, and was as follows: "By agreement between the employee and the administration, the employment contract may be terminated even before the expiration of the notice of dismissal." Somewhat later, the phrase "by agreement" was replaced by a similar one - "by agreement".

In its modern form, its general meaning has not changed, now in Part 2 of Art. 80 of the Labor Code of the Russian Federation, it is presented as follows: an employment contract can be terminated by agreement between the employer and the employee and before the expiration of the notice of dismissal. The reasons for changing the notice period for dismissal of one's own free will are important for the agreement of the parties, and, as a rule, they are not named in the employee's statement. What is important here is not the reasons for the reduction of the period, but the actual agreement (agreement) on changing the period of notice.

An agreement between an employee and an employer to reduce the period of notice of dismissal can be both written and oral. But nevertheless, a written form of an agreement of this kind seems necessary: ​​there can be either a special note on the employee’s application for dismissal of his own free will, or a separately drawn up agreement attached to the said application. This agreement (agreement) of the parties does not change the grounds for termination of the employment contract, but only applies to the period of notice of dismissal of one's own free will. Dismissal should be in this case issued with reference to paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation (own desire), and not on paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation (agreement of the parties).

Meanwhile, in practice, there are cases when the parties, discussing the issue of the term for warning about dismissal at their own request (more precisely, about reducing the period under consideration), came to an agreement on its reduction, and subsequently this agreement was attributed to the grounds for termination of the contract. As a result, the dismissal was not carried out under paragraph 3 of part 1 of Art. 77, and according to paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation, i.e. grounds for layoffs have changed. To prevent this from happening, firstly, it is necessary to take into account the following when dismissing an employee of his own free will: if the employee asked in the application to dismiss him of his own free will (on his own initiative), then this right of the employee to be dismissed on this basis must be realized. Therefore, in the above situation, the dismissal of an employee will be lawful precisely under paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation (own desire), and not according to paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation (agreement of the parties). Secondly, it must be taken into account that we are talking about different (independent) grounds for terminating an employment contract. Therefore, having chosen one or another basis, the parties must follow a certain procedure for terminating the employment contract:

a) upon dismissal under paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation (own desire) - the procedure is provided for in labor legislation (Article 80 of the Labor Code of the Russian Federation);

b) upon dismissal by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation) - the procedure for terminating an employment contract is developed (determined) independently by the parties.

Perhaps, in order to avoid substitution of the grounds for termination of an employment contract, it makes sense to return to the terminology previously used in the Code. And in this case it is advisable to use the term "by agreement" instead of the existing one - "by agreement".

You should also pay attention to the wording of Part 2 of Art. 80 of the Labor Code of the Russian Federation "before the expiration of the termination notice", which only means that the agreement (agreement) between the employee and the employer to change the notice period may refer to a 2-week period, i.e. may take place only within the period of notice prescribed by law. Therefore, the warning period in this regard can only be changed by agreement between the parties to the employment contract and within the warning period established by law, i.e. within 2 weeks (part 2 of article 80 of the Labor Code of the Russian Federation).

The second digression also cannot be called new; it was introduced in Part 2 of Art. 31 of the previously valid Labor Code of the Russian Federation by Law of the Russian Federation of September 25, 1992 N 3543-1 and is associated with cases of impossibility to continue work. These cases of changing the notice period for dismissal are indicated in Part 3 of Art. 80 of the Labor Code of the Russian Federation and indicate a deviation from the general structure of dismissal at the initiative of the employee. These cases, due to the impossibility of the employee to continue working, must be indicated in the letter of resignation at his own request. Therefore, the reasons (cases) that made it impossible to continue the work have legal significance here.

The cases under consideration are named in Part 3 of Art. 80 of the Labor Code of the Russian Federation: enrollment in educational institution, retirement and other possible. The Decree of the Supreme Court of the Russian Federation N 2 names other possible good reasons, by virtue of which the employee cannot continue to work (clause "b", clause 22). For example, when sending a husband (wife) to work abroad, to a new place of service, as well as in cases of established violation by the employer of laws, other regulations containing labor law, the terms of a collective agreement, agreement or employment contract. At the same time, it must be borne in mind that these violations can be established, in particular, by the bodies exercising state supervision and control over compliance with labor legislation, trade unions, labor dispute commissions, and the court.

In these cases, the employer is obliged to terminate the contract within the period specified in the employee's application. It is quite obvious that in the latter case, any period specified in his application is meant. In our opinion, it can be both before the expiration of the 2-week notice period for dismissal, or otherwise (any other). Let us pay attention to the following: if in Part 2 of Art. 80 of the Labor Code of the Russian Federation we are talking about an agreement between the parties regarding the termination of the contract before the expiration of the warning period, then in Part 3 of Art. 80 of the Labor Code of the Russian Federation, this is not about agreeing on the issue of the notice period by the parties to the contract, but about the obligation of the employer to terminate the contract. In this regard, the term can be any, and it is determined by cases, circumstances, due to which further continuation of the employment contract is impossible. The same way the termination of the employment contract is carried out at the initiative of the employee, when special bodies have established cases of violation by the employer of laws and other regulatory legal acts containing labor law norms, the terms of a collective agreement, agreement or employment contract. The latter case was subsequently enshrined in the Labor Code of the Russian Federation.

Withdrawal of the application

Since the employee’s statement expresses his intention to be dismissed under Art. 80 of the Labor Code of the Russian Federation and the employee continues to work for two weeks, then the letter of resignation of his own free will can be withdrawn by the employee. This provision was previously absent in the Labor Code, but was known in practice. So, in the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992 N 16 "On some issues of the application of legislation by the courts of the Russian Federation when resolving labor disputes"(as amended on November 21, 2000; hereinafter - Decree of the Supreme Court of the Russian Federation N 16) the right of the employee to withdraw his application before the expiration of the warning period was secured, and in this case, dismissal is not carried out if another employee is not invited to his place, who, in accordance with The law may not refuse to conclude an employment contract (contract).

In the new Labor Code, this rule has found its consolidation in Part 4 of Art. 80 TK. Compare with the following provision: “Before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Federal laws may not refuse to conclude an employment contract. In its development in paragraphs. "c" paragraph 22 of the Decree of the Armed Forces of the Russian Federation No. 2 clarification is made due to the fact that, by virtue of Part 4 of Art. 64 of the Labor Code of the Russian Federation, it is prohibited to refuse to conclude an employment contract for employees invited in writing to work by transfer from another employer within 1 month from the date of dismissal from their previous place of work.

The provision under consideration is developed in Art. 127 of the Labor Code of the Russian Federation: "The employee who is granted leave with subsequent dismissal has the right to withdraw his application for resignation at his own request. He can exercise this right before the day the leave begins, if another employee is not invited to his place in the order of transfer."

Upon the expiration of the termination notice period, the employee has the right to stop working, and the employer is obliged to issue a work book to the employee and make settlements with him. In this regard, attention should be paid to important detail: "On the last day of work, the employer is obliged to issue a work book to the employee and make the final settlement with him" (part 5 of article 80 of the Labor Code of the Russian Federation). Along with the work book, the manager is obliged, at the written request of the employee, to issue other documents related to work (part 5 of article 80 of the Labor Code of the Russian Federation).

Further in part 6 of Art. 80 of the Labor Code contains a provision according to which, if after the expiration of the term of notice of dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues. This provision was previously reflected in clause 15 of Decree of the Armed Forces of the Russian Federation No. 16, was confirmed by practice and subsequently found consolidation in the Labor Code of the Russian Federation.

Concluding the consideration of the general order, we note that the Labor Code also contains some special rules for terminating an employment contract at the initiative of an employee. These rules are provided for both in part three of the Labor Code of the Russian Federation (Section III "Labor Contract"), and in part of the fourth Labor Code of the Russian Federation (Section XII "Peculiarities of labor regulation certain categories workers"). Basically, these features are associated with the establishment of more short terms layoff notices.

Literature

1. Livshits R.Z. Labor legislation: present and future. Moscow: Nauka, 1989.

I.Andrianovskaya

head department

Law Institute

Sakhalin State

university

Signed for print

Termination of an employment contract by agreement of the parties is one of the most convenient grounds for an employer. It is almost impossible for an employee to challenge it, and besides, it can be concluded at any time, including during the employee’s period of incapacity for work. Yes, and "withdraw" it, as it can be done with a letter of resignation of one's own free will, the employee unilaterally does not have the right. What difficulties an employer may face and how to minimize the risks, read in the article of our expert.

Konyakhin Nikolai , Head of the Analytical Department of Legal Support for Business at the Institute of Labor Relations

The employment contract may be terminated at any time by agreement of the parties. However, the rule on this ground for termination of employment is too general and does not provide answers to many practical questions. It is not clear, for example, whether it is possible to establish in the agreement that the employment contract is terminated not immediately, but several months after its conclusion? Can the parties refuse to comply with such an agreement? Is it possible to terminate an employment contract by agreement of the parties with a pregnant woman? We will answer these and other questions, taking into account the current judicial practice.

The agreement of the parties is one of the grounds for terminating the employment contract (part 1 of article 77 of the Labor Code of the Russian Federation). In accordance with Art. 78 of the Labor Code of the Russian Federation, an employment contract can be terminated at any time by agreement of the parties.

To terminate the employment contract on this basis, the will of not one, but two parties is needed. Labor relations are terminated by mutual agreement, which ensures the balance of interests of the parties to the employment contract (Article 2 of the Labor Code of the Russian Federation).

The initiator of the termination of the employment contract can be both the employee and the employer. But the will in any case must be agreed upon (the appeal ruling of the Khanty-Mansiysk Court autonomous region- Ugra dated 17.07.2012 in case No. 33-3087 / 2012).

If the agreement on termination of the employment contract is concluded by the parties in writing and does not contradict the requirements of labor legislation, then it gives rise to legally significant consequences for the parties.

Form of agreement

In Art. 78 of the Labor Code of the Russian Federation does not say anything about the form in which the agreement on termination of the employment contract should be concluded. Based on this, in judicial practice it is concluded that drawing up a single document called the “Agreement on termination of the employment contract” is not at all necessary.

Arbitrage practice

The employee expressed a desire to terminate the employment contract by agreement of the parties by writing a corresponding application. The employer, in turn, put a resolution on it. Having studied this document, the court came to the conclusion that the agreement between the employee and the employer on dismissal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the parties to the employment contract have been reached.

The plaintiff's arguments that the agreement should be drawn up in a separate written document, the court considered erroneous. In his opinion, they are based on an incorrect interpretation of labor law.

To terminate the employment contract under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation, it is enough for the parties to come to a mutual agreement. In this case, the form of the agreement does not matter, since the provisions of Art. 78 of the Labor Code of the Russian Federation do not contain any requirements for its execution.

Usually, the agreement of the parties is understood as reaching an agreement, joint and mutual expression of will to perform certain actions. Moreover, such an agreement can be both oral and written.

Because Art. 78 of the Labor Code of the Russian Federation does not contain a requirement for writing agreement, then the scheme can be considered as an agreement. It does not contradict the current labor legislation in any way.

Plaintiff's references to Art. 67 of the Labor Code of the Russian Federation (there, we recall, we are talking about the execution of an employment contract), the court was also not convinced. This article establishes requirements for the form of an employment contract, and not an agreement on its termination (appeal ruling of the Tverskoy Regional Court dated February 29, 2012 in case No. 33-559).

In another case, the court pointed out that the available evidence (the employee’s statement about the termination of the employment contract by agreement of the parties and the issuance of the dismissal order by the employer) testify to the achievement of an agreement (appeal ruling of the Yaroslavl Regional Court dated July 30, 2012 in case No. 33-3957 / 2012).

We note that Art. 78 of the Labor Code of the Russian Federation does not contain a requirement for a written execution of an agreement. However, this does not mean that it can be concluded orally. The point is that Art. 67 of the Labor Code of the Russian Federation provides for a written form for an employment contract. And since the agreement of the parties terminates the rights and obligations of the parties arising from a written document, the agreement on its termination must also be drawn up “on paper”.

Coercion must be proven by the worker himself

The most common grounds on which employees try to challenge the concluded agreement on termination of the employment contract is the argument that the document was signed under duress. Lack of voluntariness, in theory, should invalidate the document signed by the parties. However, the obligation to prove the circumstances confirming the pressure on the employee when signing the agreement rests with him (Article 56 of the Civil Procedure Code of the Russian Federation).

When establishing the actual will of the employee, the court evaluates all circumstances deserving attention. For example, he can take into account the fact that an employee has a higher legal education. This means that such an employee should have understood the legal consequences of his actions (decision of the Moscow City Court dated 10.10.2011 in case No. 33-30743).

If the employee cannot prove the fact of pressure, then the agreement to terminate the employment contract will most likely remain in force.

Arbitrage practice

The court found it lawful for the employer to issue an order to dismiss the employee on the basis of an agreement previously concluded with him on termination of the employment contract. The employee tried to prove in court that the employer forced him to conclude this agreement. In the case file, he submitted an expert opinion, from which it followed that he was characterized by emotional sensitivity, anxiety, a tendency to experience, and there were also signs of adverse psychological changes in connection with the dismissal.

However, the court did not accept such a conclusion as evidence, since it in itself did not confirm the fact of coercion to sign the agreement. It only pointed to the individual psychological characteristics of the employee, but did not indicate any illegal actions on the part of the employer (appeal ruling of the Saratov Regional Court dated June 28, 2012 in case No. 33-3502 / 2012).

Thus, if the employee does not provide evidence of coercion and lack of expression of will, then it will not be possible to recognize the order to dismiss him as illegal (appeal ruling of the Pskov Regional Court of 07/03/2012 in case No. 33-1027 / 2012).

Evidence of coercion

The converse statement is also true: if the employee can prove that he was forced to sign the agreement, then the court will recognize the agreement as illegal. Such an agreement will not entail any legal consequences. If the employee was fired, he will have to be reinstated.

Arbitrage practice

The court concluded that the employee was forced to sign an agreement to terminate the employment contract based on an analysis ... of the text of the agreement itself. The document stated that the employer is obliged, upon restoration of the full volume of production, to accept the employee to work in the previous position. On this basis, among other things, the court concluded that at the time of signing the agreement there was no voluntary and agreed will of both parties to the employment contract to terminate it.

Taking into account this condition, the employee’s explanations about his lack of voluntary will to terminate the employment contract by agreement of the parties, testimonies, the court reinstated him at work (appeal ruling of the Supreme Court of the Republic of Buryatia dated 06/18/2012 in case No. 33-1568).

Let's take another example.

Arbitrage practice

It followed from the case file that the employee was on parental leave, during which he was given a notice of impending dismissal. The employer reported that the position occupied by the employee is reduced, in connection with which he is subject to dismissal in two months. At the same time, the employee was given a proposal to terminate the employment contract by agreement of the parties.

On the day the employee went to work, the HR specialist, without explanation and familiarization, insisted that the employee sign the documents submitted by her. To the arguments of the employee that he did not understand legal documents and he needed to familiarize himself with them, she answered that this was just a formality. After signing the submitted documents, the personnel officer, putting them in a folder, said that the company was in the calculation with him and she would not make any payments to him, he was fired. Arriving home, the plaintiff discovered that the employment contract was terminated not by a reduction in staff, but by agreement of the parties, although the employee did not give consent to this.

From the explanations of the employee it followed that he did not want to quit his job by agreement of the parties; did not write a letter of resignation. He has four minor children. Signing under duress and under pressure from an HR specialist, he assumed that he was signing documents for the reduction of staff, based on the notification. The personnel officer deliberately misled him, fraudulently forced him to sign an agreement to terminate the employment contract by agreement of the parties.

The court took into account that prior to these events, the employee had no intention of resigning by agreement of the parties, since in this case he would lose those guarantees that are provided for by the current legislation in case of staff reduction (Article 179 of the Labor Code of the Russian Federation).

In addition, the court noted that the agreement does not contain any additional guarantees and compensations for early termination of the contract.

Thus, the court considered that there was no agreement between the parties on termination of the employment contract (cassation ruling of the Supreme Court of the Republic of Tyva dated 10/11/2011 in case No. 33-853/2011).

A barrel of honey and a fly in the ointment

Termination of an employment contract by agreement of the parties is convenient when an employee, for example, has committed a disciplinary offense that serves as the basis for his dismissal, or has not passed certification for compliance with his position. In this case, in order not to obstruct his further employment, as well as to create an opportunity for the employer to find a replacement, the parties may conclude an agreement to terminate the employment contract. It can be written in it that the employment contract is terminated, say, 2-3 months after the conclusion of the agreement.

During this period, the employer is looking for another employee, and with the onset of the “X” hour, he dismisses the previous one. An employee in such a situation receives an acceptable entry in the work book and has the opportunity to work for several months, receiving wages. If the employee does not want to work further, the parties may terminate the employment relationship before the agreed period.

Arbitrage practice

The employee and the company terminated the employment contract by agreement of the parties. The reason for the dismissal was the fact of the disappearance of electronic scales from the workshop during the employee's duty. In this regard, the company had complaints about the work of the employee, which were expressed to him. However, the worker regarded them as pressure on him. The court also pointed out that the employer's requirements to comply with the terms of the employment contract are based on the law, and the statement of claims cannot be regarded as psychological pressure.

As a result of the incident, the employer offered the employee the dismissal by agreement of the parties. Its text was presented to the employee for review and subsequently signed with his own hand. Under such circumstances, the court considered that the dismissal of the employee was lawful (appeal ruling of the Saratov Regional Court dated May 24, 2012 in case No. 33-2643/2012).

Note

In practice, the employer often finds a replacement for the employee before the deadline specified in the agreement of the parties. Moreover, it is impossible to insure against such a situation by prescribing in the agreement that the employment relationship is terminated from the moment the employer finds a replacement. In this case, the condition on the moment of termination of the employment contract will not be determined, because. it is not clear when the employment contract will end, or if it will happen at all. For the employer, such a situation is fraught primarily with the fact that the court, in the event of a dispute, will consider an agreement between the parties not reached.

Compensation

On the basis of the concluded agreement, the employer issues an order to dismiss the employee, makes settlements with him and issues a work book. If the employment contract provided for any compensation to the employee, then it is necessary to clarify once again that they are established precisely in case of termination of the contract by agreement of the parties.

Arbitrage practice

In the employment contract, it was established that when it is terminated at the initiative of one of the parties, the employee is paid wages in the amount agreed by the parties. After the termination of the employment contract, no compensation was paid. The employee went to court.

During the proceedings, it turned out that the employee was dismissed by agreement of the parties. In this regard, there are no grounds for paying compensation (cassation ruling of the Supreme Court of the Republic of Tuva dated April 17, 2012).

Agreement through a representative

An analysis of judicial practice shows that an application for termination of an employment contract can be transferred to the employer not by the employee himself, but by his representative. Of course, if the power of attorney has the necessary powers to do so. Consider the situation on the example of filing an application for termination of an employment contract at the initiative of the employee himself.

Arbitrage practice

The representative, by proxy, handed over to the employer the employee's application for termination of the employment contract. In the future, all documents on the termination of labor relations (bypass sheet, dismissal order, receipt for obtaining a work book) were already signed by a representative.

In court, the employee tried to challenge his signature on the application for termination of the employment contract, and the examination confirmed that the signature did not really belong to him.

Despite this, the court still took the side of the employer.

The representative acted on the basis of a notarized power of attorney issued to him, without going beyond the limits of the powers indicated in it. After the dismissal, the employee did not make any claims against his representative, did not challenge his actions, did not turn to the employer for explanations. It means that he knew and agreed with all his actions.

The court, in addition, indicated that the actions of the employee and his representative were dishonest, aimed at causing material damage employer and harm to his business reputation, and not to the real restoration of labor rights. Such actions are an abuse of the right, which is unacceptable (ruling of the Supreme Court of the Russian Federation dated June 10, 2011 No. 5-B11-37).

Agreement with a pregnant worker

It should be borne in mind that even the fact of the employee's pregnancy, which the employer was aware of, is not a basis for recognizing the agreement concluded between them on termination of the employment contract as invalid. The point is that Art. 78 of the Labor Code of the Russian Federation (as well as other norms of labor legislation) does not exclude the possibility of termination of labor relations by agreement with a pregnant woman.

Arbitrage practice

The employee in court demanded that the agreement on termination of the employment contract be declared invalid. Her arguments boiled down to the fact that at the time of signing it she was pregnant, in addition, when signing the agreement, she was psychologically pressured.

The court pointed out that the termination of an employment contract with pregnant women is not allowed at the initiative of the employer. In the situation under consideration, the employment contract was terminated after the mutual agreement of the parties was reached.

In support of her second argument, the employee presented an expert opinion. It confirmed that there was an audio recording on the employee's phone confirming the psychological pressure.

But the court did not take this argument into account. Recorded on mobile phone, and in the case file is presented on a removable USB-drive, i.e. has a redesigned character. It was taken out of context, and the place of the recording and the persons involved in the conversation have not been reliably established. Under such circumstances, the audio recording was recognized by the court as inadmissible evidence (appellate ruling of the Vladimir Regional Court dated May 17, 2012 in case No. 33-1268/2012).

Cancellation of the agreement

As already noted, the termination of an employment contract by agreement of the parties must be based on a voluntary expression of will. Therefore, it is quite logical that such an agreement can be annulled only if there is the will of both parties.

This is confirmed by the Plenum of the Supreme Court of the Russian Federation in paragraph 20 of the Resolution of April 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”. It says that the parties can terminate the employment contract at any time within the period specified by them. Cancellation of the agreement regarding the term and grounds for dismissal is also possible by mutual agreement.

Arbitrage practice

Some time after the conclusion of the agreement, the employee changed his mind about leaving. Despite this, the employer terminated the employment contract with him. The dispute went to court.

The court did not take into account the argument of the dismissed employee that he had changed his intention to quit. He stressed that the annulment of the agreement on the basis and term of dismissal, reached between the parties to the employment contract in accordance with Art. 78 of the Labor Code of the Russian Federation, is possible only with their mutual consent. The employer did not change his intention to terminate the employment contract (determination of the St. Petersburg City Court dated 04.10.2011 No. 14946).

The Moscow City Court came to a similar conclusion in its ruling dated February 14, 2012 in case No. 33-3653/2012.

The agreement to cancel the agreement may follow not only from the signed agreement or the employee’s statement to the employer with the latter issuing an order to cancel the previously issued order to dismiss the employee, but also from the actual behavior of the parties to the employment relationship.

Arbitrage practice

The employee and the employer entered into an agreement to terminate the employment contract, establishing in it the obligation of the company to pay compensation upon dismissal in the amount of two official salaries. However, on the last day, the employee did not stop working, continuing to work in the same position.

The dispute arose over compensation, which the parties agreed on in the agreement on termination of the employment contract. The court of first instance considered that the previous employment contract had terminated, and new relations had arisen between the parties that were not properly formalized by the employer.

However, the next instance did not agree with this position, noting that there were no new labor relations between the parties. The order to dismiss the employee was not executed, because he continued to work. A time sheet was kept for him. Consequently, the actual behavior of the parties testified that the agreement they had previously reached to terminate the employment contract was also annulled by agreement. Labor relations between the parties continued. Thus, there could be no question of any compensation (decision of the Moscow City Court dated February 16, 2012 in case No. 33-4995).

Thus, the agreement to terminate the employment contract is effective tool termination of labor relations of the parties on the basis of their mutual and voluntary expression of will.

To conclude such an agreement, we recommend that the employer receive a handwritten application from the employee with a request to dismiss him by agreement of the parties. This will indicate that the initiative came from the employee, and there was no pressure from the employer. The visa of the representative of the employer must be affixed to the application. The parties then enter into an agreement to terminate the employment contract.

If an employee was dismissed in violation of the law, then in order to avoid negative consequences he should be reinstated immediately. An order to reinstate an employee in his previous position, canceling a previously issued dismissal order, must be sent by the employer by mail or transmitted by any other available means.

Illegal dismissal cannot be corrected by the employer by canceling the dismissal order after the actual termination of the employment relationship without notifying the employee and obtaining consent from him to restore the violated right. The Labor Code of the Russian Federation does not grant the employer the right to take any legally significant actions affecting the rights and interests of an employee without his prior written consent, and even more so after the employment relationship was terminated at the initiative of the employer (cassation ruling of the St. December 21, 2011 No. 33-18575/2011).

Opinion

Radmila Khosaeva, Lawyer at Progress LLC

I agree that termination of an employment contract by agreement of the parties is one of the most democratic grounds for dismissal. To some extent, it is a logical conclusion to the employment relationship that began with the conclusion of an employment contract. But here, of course, it should be borne in mind that the side of the employee or employer may abuse the right, and in this case, the legality of the dismissal will be in question. However, this species termination of the employment contract can be beneficial to both parties.

Let's start with the employer. The benefits are undeniable. Firstly, it is possible to conclude an agreement on termination of an employment contract at any time, including during probationary period, the employee being on vacation (for example, to care for a child under the age of three) or during a period of temporary disability (clause 1, part 1, article 77, article 78 of the Labor Code of the Russian Federation). The initiator of termination of the employment contract by agreement of the parties can be both the employee and the employer. At the same time, it is not necessary to motivate the proposal to terminate the employment contract on this basis.

Secondly, the employee cannot “change his mind” after signing the agreement, which means that he will not be able to refuse dismissal unilaterally, unlike dismissal of his own free will, when he can withdraw the letter of resignation. Therefore, if the employee wants to stay at work, he must obtain the written consent of the employer for this.

Please note: in order to cancel agreements regarding the term and grounds for dismissal, mutual consent of the employee and employer is required (clause 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 of the Labor Code of the Russian Federation”).

At the same time, it should be borne in mind that after the conclusion of an agreement on termination of the employment contract, the employee can write a statement and quit at his own request earlier than the date specified in the agreement. As judicial practice shows, the employer will not be able to interfere with him.

By the way, the employee can terminate the employment contract unilaterally by notifying the employer in writing no later than two weeks in advance. By agreement between the employee and the employer, the employment contract may be terminated even before the expiration of the notice of dismissal. 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 the Labor Code of the Russian Federation and other federal laws, cannot be refused to conclude an employment contract (Article 80 of the Labor Code of the Russian Federation).

I had to deal with a similar case, and the court recognized the dismissal of the employee at his own request, despite the existence of a signed agreement, legal. He noted that in the event of a competition between two grounds for terminating an employment contract, priority remains with dismissal of one's own free will. The point is that Art. 80 of the Labor Code of the Russian Federation establishes the right of an employee to terminate an employment contract unilaterally on his own initiative. The only obligation of the employee is to notify the employer at least two weeks before the expected date of dismissal. And the employer, in turn, having received the employee’s application, is obliged to dismiss him (if the application is on the same date or earlier than specified in the agreement). Thus, even despite the signed termination agreement, the employer will have to part with the employee. A similar situation will be with the dismissal of an employee at the initiative of the employer, unless, of course, there are grounds for this, even despite the signed agreement.

The court's arguments were as follows: “The termination of the employment contract by agreement of the parties in the presence of an employee's application for dismissal of his own free will from the same date violates the freedom of expression of the employee. In the event of a conflict between the actions of two documents that are actually identical in strength and mandatory execution, priority should be given to the employee's expression of will on dismissal of his own free will. At the same time, the arguments put forward by the responding party about the impossibility of terminating the employment contract at will without the corresponding annulment of the previously concluded agreement cannot be recognized as justified from the point of view of the goals and values ​​protected by the Constitution of the Russian Federation and consistent with the requirements arising from its articles (Articles 2, 18, 55 of the Constitution of the Russian Federation).

Thirdly, there is no need to coordinate the text of the agreement on termination of the employment contract either with the trade union or with any other body. By the way, I would like to say separately about the text of the agreement. Labor legislation, as already noted, contains practically no mandatory requirements to the terms of the agreement aimed at the dismissal of the employee on the grounds provided for in paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The only requirement that must be met is to include in the document a condition on the date of termination of the employment contract. All other conditions are included at the request of the parties. For example, the procedure for transferring cases, the presence or absence of mutual claims, the amounts due to be paid to the employee, etc. For example, in the text of the agreement, in addition to the date of termination of the contract, you can include a condition for paying the employee two months of average earnings. From this follows the following advantage of the agreement.

Fourthly, upon dismissal on this basis, the employer is not obliged to pay any compensation (except for compensation for unused vacation) and provide guarantees, as opposed to layoffs, for example. The condition on the payment of compensation is optional, which means that it can act as a way to “persuade” the employee to sign the agreement.

Fifth, the most significant plus is that it is almost impossible to return to work after the termination of the employment contract by agreement of the parties. The fact is that the agreement as such presupposes the consent of the employee and the employer who signed this document. Thus, the signature of the employee means that he accepted the announced conditions and agreed with them. If the dismissed employee insists in court that he did it under pressure or was misled, then he will have to present evidence in court.

An analysis of judicial practice shows that it is quite difficult to prove the fact of "pressure". Most often, employees present emails, dictaphone recordings, or telephone conversations in which an employee (by threats, persuasion or cunning) is forced to sign a dismissal agreement, witnesses are involved. They may refer, say, to the fact that the company was "optimized" and instead of reducing and paying benefits in larger size workers were forced to resign by agreement of the parties with the payment of a much smaller amount.

Let me give you an example from my own practice. An employee came to work under the influence of alcohol. Human Resources handled all paperwork. There were memos, and an act, and a medical examination, and a requirement to submit explanatory notes. The legal department suggested that management not fire the employee on a “guilty” basis, but conclude an agreement to terminate the employment contract. The management made a proposal to the employee: “We fire you by agreement of the parties, otherwise we will fire you for appearing at work in a state of intoxication.”

The employee signed the agreement, and later went to court, where he indicated that, due to fear of being fired under a “bad” article, he agreed to resign under the agreement. The court, having evaluated the evidence presented, came to the conclusion that the offer of the employer to the employee to choose one of options termination of labor relations (under subparagraph “b”, paragraph 6 of part 1 of article 81 of the Labor Code of the Russian Federation - for appearing at the workplace in a state of intoxication or under paragraph 1 of part 1 of article 77 of the Labor Code of the Russian Federation - agreement of the parties) cannot regarded as coercion to dismiss an employee. The signing of an agreement on termination of an employment contract in order to avoid dismissal for negative reasons cannot indicate a dismissal under pressure from the employer's management. Subject to the threat of dismissal for negative reasons, the employee exercised the right to choose the most appropriate type of dismissal for himself.

Therefore, for the most part, the arguments of employees are ignored, since the court proceeds from the fact that the signature of the employee on the document stands and means his consent. For example, in one of the court decisions in a similar case, the court used the following argumentation: “The internal motives that guided the employee when signing the agreement to terminate the employment contract do not matter, since the reassessment of the circumstances from which the plaintiff proceeded when concluding the agreement does not entail its invalidity. Cancellation of an agreement regarding the term and grounds for dismissal is possible only with the mutual consent of the employer and employee.

For an employee, dismissal by agreement of the parties can also be beneficial. If you provide in the document for the payment of additional monetary compensation, then he will be more protected and confident that he will not be “deprived” upon dismissal.

Every working person will have to face the dismissal procedure one day. In this situation, it is important to know that there are various grounds for dismissal, which will determine the rights and opportunities of an employee leaving the company. Understanding even the basics of labor law, knowing the procedure for dismissal, the employee will be able to facilitate the process of parting with the organization as much as possible, as well as protect himself from dishonest actions of the employer. Modern labor law is very competent in protecting the rights of workers, so it is extremely important for workers to find an opportunity to study these issues.

Grounds for terminating an employment contract

The Labor Code of the Russian Federation states that a proposal to terminate a work contract can come from both an employee and his employer. If any reasons for dismissal are acceptable for an employee, ranging from the objective impossibility to continue working and ending with a banal unwillingness to work in a specific company in a specific position, then the employer should approach the issue of dismissal more carefully and justify his desire to part with the employee documented and very carefully. The law stands for the protection of the rights of working citizens, so it is not enough for an employer to just want to get rid of an objectionable employee. Illegal dismissal or violation of the rights of the worker in the process of dismissal can lead to lawsuits and proceedings.

Article 77 of Chapter 13 of the Labor Code of the Russian Federation informs that the general grounds for terminating an employment contract include:

• agreement of the parties (Article 78 of the Code);
• 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 its termination;
• termination of the employment contract at the initiative of the employee (Article 80 of the Code);
• termination of the employment contract at the initiative of the employer (Articles 71 and 81 of the Code);
• transfer of an employee at his request or 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 organization, with a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of the Code);
• 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 the Code);
• the employee's refusal to transfer to another job, which is necessary for him in accordance with a 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 the Code);
• the employee's refusal to be transferred to work in another locality together with the employer (part one of Article 72.1 of the Code);
• circumstances beyond the control of the parties (Article 83 of the Code);
• violation of the provisions of this Code or other federal law the rules for concluding an employment contract, if this violation excludes the possibility of continuing work (Article 84 of the Code).

The Labor Code of the Russian Federation also contains other reasons for early termination of the contract (see Chapter 13 of the Labor Code of the Russian Federation).

Video: grounds for terminating an employment contract

Guarantees to the employee upon termination of the employment contract

The guarantees and compensations to which every working Russian is entitled upon termination of an employment contract are regulated by Chapter 27 and Articles 178-181 of the Labor Code of the Russian Federation. Guarantees mean a set of opportunities for exercising labor rights available to an employee. Compensation is understood as financial payments, which are designed to reimburse the employee for the costs caused by his employment of labor or other obligations in accordance with the Labor Code of the Russian Federation.

The main guarantees are determined by the fact that the Labor Code clearly regulates the list of grounds and the rules for termination labor contract. determines the right of the employee to receive severance pay. In case of reduction due to the liquidation of the company or to reduce the staff, the employer is obliged to pay severance pay(average monthly salary), as well as provide payments while looking for another job (no more than two average monthly salaries). The employer is required to pay a severance pay equal to two weeks' average earnings when the contract is terminated under the following circumstances:

• non-compliance of the employee with fulfilling obligations in terms of medical indicators;
• conscription of an employee for military or civilian alternative service;
• the need to reinstate an employee who previously performed these duties;
• disagreement of the employee to move for the employer to another area.

The amount of severance compensation and the cases of their payment can be adjusted directly in the contract concluded with the employee. In addition to benefits, if any, the dismissed person has the right to receive full size salary for the days worked before dismissal, as well as payments for accrued vacation days that he did not have time to take off.

Article 179 regulates the rights of working citizens in case of redundancy and states that the best chances to keep a job are guaranteed to the most qualified specialists, ensuring maximum productivity. In otherwise identical circumstances, preference is given to:

• family workers with at least two dependents;
• employees who provide the only source of income in the family;
• employees who have received an occupational disease or injury during the period of work in the company;
• WWII veterans and combat invalids;
• employees who improve their skills according to the profile of the employer, without interrupting their work activities.

AT collective agreement often other groups of persons who enjoy the benefits of dismissal due to staff reduction are also indicated.

When reducing staff, the employer is obliged (see):

• not later than two months in person and against signature to inform the employee about future changes;
• to offer the dismissed person an alternative position corresponding to professional competencies downsizing employee.

The employer has the authority to terminate the contract without notice for two months with the payment of two average earnings and dismiss the employee if he has the written consent of the latter.

There is no standardized form for making a notice

There are various ways to familiarize an employee with a document:

• hand over in person against signature;
• in the absence of an employee at work, send a notice by registered mail with a description of the attachment and with a return receipt.

Many experts recommend using the second option, since it allows you to get documentary evidence of the fact of receiving a message about the termination of the contract. If an employee refuses to receive a notification, it is necessary to draw up an act fixing this.

The notice period for an employee may vary depending on the reasons for the dismissal. So, when reducing staff, it is supposed to give notice to employees at least two months before the date of parting, and you can be fired for misconduct or absenteeism at least the very next day.

Video: dismissal at the initiative of the employer

Order to terminate the employment contract

The law does not dictate specific requirements for the execution of an order to terminate the contract. Nevertheless, there is a standardized form of the T8 order, which is preferred by many companies, since it is this form that is easily available in various accounting and personnel workflow programs. The order must contain the following information:

• Company name;
• registration number and date of issue of the document;
• details of the contract to be terminated;
• Full name and position of the dismissed employee, as well as the structural unit to which he belongs;
• grounds for termination of the contract with reference to the corresponding clause and article of the Labor Code of the Russian Federation;
• signature of the director of the enterprise.

The order is dated the last day of the employee's work. The illustration below shows a template for an order filled in the T8 form.

The dismissal order can also be drawn up using other templates.

It is not necessary to certify the document with the seal of the organization. However, it is imperative to familiarize yourself with the order of the dismissed specialist. After reviewing the document, the resigning person must leave his signature on it as a confirmation of this fact. If for some reason it is not possible to familiarize the employee with the order (for example, the employee is absent from work or refuses to get acquainted with the document), the personnel specialist makes a note about this on the document. The resigning person has the right to request a certified duplicate of the order of his dismissal.

Personal observations of the author this material show that you should never neglect the opportunity to get a duplicate dismissal order. One of the author's former colleagues had a habit of always asking for a copy of the dismissal order when leaving the organization. Thanks to this habit, the named colleague was able to confirm his seniority, when, by coincidence, his work book was irretrievably lost. The colleague acted very wisely, receiving duplicate orders immediately upon dismissal. In fact, it turned out that some of the enterprises in which he worked during his career, at the time of the restoration of his work book, were simply liquidated, reorganized or moved to other cities.

Work book upon dismissal

When leaving the enterprise, the employee is supposed to receive, among other documents, a work book. The entry of any marks into the labor is carried out in strict accordance with the requirements of Section 5 of Instruction No. 69, approved by the Decree of the Ministry of Labor of the Russian Federation of October 10, 2003. In accordance with the above instructions, in the labor it is required to indicate:

• record number in order;
• departure date;
• reason for leaving;
• details of the document-grounds for leaving.

The newly completed labor page is certified with an imprint of the company's seal, the signature of the person leaving, as well as the signature of the specialist responsible for making the entry, or the signature of the head of the company. The following is an example of making an entry in the labor.

All entries in the labor must be made in strict accordance with the requirements of the law

At the written request of the employee, the following documents are also provided to him:

• salary certificate for the current and two previous years (for calculating social insurance benefits);
• certificate of average earnings (to calculate the amount of unemployment benefits);
• certificate in the form 2-NDFL with information on the employee's income from the beginning of the year until the moment of dismissal.

Upon dismissal, the following documents are also necessarily issued:

• section 3 "Personalized information about insured persons" of the calculation of insurance premiums (Appendix N 1 to the Order of the Federal Tax Service dated 10.10.2016 N ММВ-7-11 / [email protected]) with the individual information of the employee for the period from the beginning of the quarter to the date of his dismissal;
• form SZV-M (approved by Resolution of the Board of the Pension Fund of the Russian Federation of February 1, 2016 N 83p) for the month of dismissal of an employee, containing information only about him;
• SZV-STAZH form.

An employee who leaves the company in order to take a well-deserved rest, upon request, also receives information about his seniority in the form of a copy of the SPV-2 form sent to the pension fund.

The labor is supposed to be issued to the resigning person on his final working day. If the employee does not show up for workplace on this day, the personnel service has the right to send him a notification to his home address with a request to appear to receive a job. From the date of sending this notice, the employer ceases to be responsible for the delay in issuing a work permit. Similarly, with the permission of the resigned, personnel officers can send him a work book through the postal or courier service.

If the work book is not handed over to the employee leaving on the final working day due to the fault of the employer, the latter will bear liability. The law obliges the employer to pay the employee the wages not received due to the deprivation of his ability to work (see article 234 of the Labor Code of the Russian Federation).

Final settlement upon dismissal

When parting with the company, the employee is entitled to the payment of the following funds:

• wages for days worked before departure;
• compensation for days not taken off vacation;
• severance pay (if such is provided by the agreement of the parties or the employment contract).

Charged for execution job duties funds are subject to personal income tax, payments for unused vacation days in 2018 are also taxed at a rate of 13% for residents of the Russian Federation and at a rate of 30% for non-residents. Insurance premiums are paid in full.

When parting by agreement of the parties, the funds paid under the termination agreement are subject to personal income tax only to the extent that it exceeds three times (six times for enterprises operating on Far North) the average monthly salary of an employee (see Letter of the Ministry of Finance of Russia dated February 13, 2015 No. 03–04–06/6531). A similar situation is also true for the payment of severance pay to employees leaving for other reasons (see paragraphs 1, 6, 8, paragraph 3 of article 217 of the Tax Code of the Russian Federation). Insurance premiums in these cases also do not need to be paid.

The total amount of compensation to be paid is indicated in a special document called a note-calculation. The form of primary documentation for accounting for labor and its payment T-61 for filling out a note-calculation was approved by the Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 No. 1, however, the law does not require its mandatory application. Many companies choose to use this form as a template for creating their own letterhead for these types of situations.

The responsibility for compiling the note-calculation lies on the shoulders of the personnel officer, but the accountant performs direct calculations for payments. Form NoT-61 provides a calculation of the average monthly earnings for payment of compensation for unused vacation or withholding for vacation used in advance. The columns of this document are filled in as follows:

• in column 3 "Payments taken into account when calculating average earnings, rubles." output total amount payments accrued to an employee for the billing period in accordance with the rules for calculating average earnings;
• columns 4 and 5 display the number of calendar (working) days and hours falling on the time worked in the billing period;
• the column "Number of hours of the billing period" is filled in when calculating the payment of compensation for unused vacation to an employee for whom a summarized accounting of working hours is assigned;

The HR specialist is responsible for compiling this form, but the accountant does all the calculations.

Features of termination of an employment contract with special categories of citizens

Breaking an employment contract with certain categories of citizens has some features. So, for example, an employer does not have a legal opportunity to dismiss an employee in a state of pregnancy on his own initiative, unless we are talking about the liquidation of an individual entrepreneur or an enterprise. At the same time, an employee who is expecting a child has the right to quit of her own free will without working off. If it turns out that the dismissal of the pregnant woman was forced, the employer faces administrative and criminal liability. When dismissing a minor employee at the initiative of the employer, he must obtain the approval of the relevant public service responsible for the employment of minors and protecting their labor law. Exceptions to this rule are possible when an organization (or individual entrepreneur) is subject to liquidation. sacking foreign citizen for any reason, the employer must notify the FMS of this fact using the following form.

Author on personal experience had a chance to observe how Russian legislation protects labor rights certain categories of citizens. One of the author's colleagues, while waiting for the child, succumbed to the threats and pressure of the employer and, being in a difficult emotional state and wishing to safely convey the pregnancy, she wrote a letter of resignation of her own free will. After some time, the girl turned to a lawyer she knew for advice, who explained to her the unlawfulness of the actions of the employer, and also helped to draw up statement of claim to the court and contact the labor inspectorate. After litigation, the pregnant employee was reinstated with the payment of wages for the period that she was involuntarily unemployed.

Video: criminal liability for the dismissal of pregnant women

Labor law carefully regulates the issues of dismissal. If an employee can easily part with the company of his own free will, then the employer will have to work hard to get rid of the objectionable employee. Knowing even the basic principles by which the dismissal process is organized will help the employee prevent abuse by the employer, quit the company with all due material payments, and, if necessary, defend their rights by filing a lawsuit against the employer company.