The procedure for dismissing an employee of his own free will. How to properly resign of your own free will: the procedure, reasons and conditions for dismissal

16.10.2019

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The state, acting before citizens as a guarantor of the protection of their rights, does not betray itself in the segment of labor relations. The legislation is carefully thought out, and does not allow unjustified dismissals of employees by employers. Representatives of the judiciary often take the side of workers when the question concerns the decision to dismiss, taken by the head "on the brink" of compliance with the law.

If an employee is dismissed at the initiative of the employer, a great responsibility falls on the manager. Violations of legal norms, due dates and payments can provoke a situation in which the judicial authorities will not only return the employee to the service forcibly, but also impose a heavy fine on the organization.

To avoid such consequences, one should study labor legislation in terms of the rules and procedure for dismissing employees, and also take into account the exceptions for certain categories of citizens.

The main document governing all aspects of employee dismissal is the Labor Code.

Foundations

The list of all opportunities for employers in terms of dismissal of employees is indicated in Article 77.

It is allowed to fire an employee:

with his consent and on his personal initiative;
having come to a general agreement between the employee and his management;
at the moment when the term of the contract between the parties expires;
under changed circumstances and working conditions, on the basis of which the employee does not want to continue the employment relationship;
by decision of the management of the enterprise.

Unlike the termination of contractual relations at the request of the employee, if the initiative comes from the employer, then the legal restrictions come into force ( Labor Code of the Russian Federation article 81).

Causes

The management of the company may terminate the employment contract with the employee in the event of:

if the enterprise is liquidated and stopped working, or its owner has changed;
making an informed decision on the need to cut staff;
if the employee's work does not meet the standards (insufficient qualifications, immoral behavior, refusal to perform official duties, violation of labor discipline or safety standards);
if the state of health of the employee, confirmed by a document from the medical institution, does not allow him to continue working (this option is only permissible if the company does not have a suitable position to replace, or the employee refuses a new place);
a proven offense committed by an employee against the interests of the company (theft, embezzlement, embezzlement, intentional harm caused to employees or property, violation of information security standards);
concealment of information regarding the existence of a conflict of interest, one of the parties to which is the employee;
if the employee, when applying for a job, resorted to deception by presenting false documents.

By introducing into legislation the need for a reason for dismissing an employee, the state protects citizens from possible discrimination and subjective assessments on the part of the management. Any reason must be documented.

What not to do

The law prohibits a number of actions when employees are dismissed at the initiative of management.

These include:

the inability to fire an employee at the time of illness, confirmed by a certificate of incapacity for work;
inadmissibility of dismissal during the period of vacation of any kind;
restrictions on the dismissal of certain categories of citizens.

In order to be able to fire an employee in the general order, you need to make sure that he does not belong to the exclusive category.

On a general basis, employees cannot be dismissed if they are:

minors;
pregnant women;
single mothers with children under 14;
citizens caring for people under the age of three;
citizens caring for a disabled child who has not reached the age of majority.

This does not mean that these workers cannot be fired at all. For the termination of contracts with exclusive categories, which are under the special protection of the state, there are separately agreed conditions and rules.

Dismissal procedure

The provisions of the Labor Code oblige the employer to formalize the dismissal in the prescribed manner (Labor Code of the Russian Federation, art. 84.1). If the question concerns dismissal initiated by the management of the enterprise, then the general procedure for dismissal is as follows:

management must have a basis (documented reason for the decision);
the employer is obliged to notify the employee about the upcoming termination of the contractual relationship by an official order, which indicates the basis;
familiarization with the document must be confirmed by the signature of the employee;
the decision of the management must be reflected in the work book, and the record must be accompanied by a link to the article of the Labor Code, which is the basis for dismissal;
on the day of termination of the contract, it is necessary to provide the employee with personnel documents (mandatory for issuance are: a work book, a certificate of income for two years and a certificate of paid contributions to the FIU);
also on the day of dismissal, it is necessary to make a full payment with the employee;
the timing of notifying the employee about the upcoming dismissal depends on the type of employment contract and are mandatory.

Depending on the reason for dismissal, separate clauses are added to the procedure, which the employer must fulfill.

Liquidation

If the dismissal is due to the termination of the work of the entire enterprise, then the contracts with all employees are subject to termination. Selective dismissal of employees for this reason is unacceptable.

Stages of registration:

Drawing up an order to terminate the work of the organization.
Employee notification (in person, against signature);
Notification of representatives of the trade union and employment service (Labor Code of the Russian Federation p. 180) two months before the entry into force of the order.
Execution of orders for the dismissal of personnel.
Payment.
Issuance of personnel documents.

If a mass layoff is imminent, then the notice period is increased to three months.

Reduction

If it is necessary to cut the number of working positions, the employer must be guided by the rules relating to the execution of the reduction of staff. In terms of the procedure, they are identical to the stages carried out during the liquidation of a company, with one addition.

Following the issuance of a layoff order, the employer is obliged to consider offering job replacements for workers who are laid off. If an employee agrees to a new position, then his transfer is made out. If a vacant position has not appeared before the day of dismissal, or the employee does not agree with the proposed working conditions, a dismissal order is issued, the calculation and issuance of documents are made.

It is important to remember that when dismissing employees under this article, as well as upon liquidation of an enterprise, the employer is obliged to pay them severance pay. Its size corresponds to a two-month salary

"By article"

Dismissal "under the article" leaves a certain negative imprint on the employee's further work. For this reason, the employee often expresses a desire to formalize the dismissal on his own initiative. For the employer, this type of dismissal means additional responsibility. When deciding what an employee can be fired for, he is obliged to prove the existing violations.

Violations

If an employee is subject to dismissal because of his behavior, disregard for the rules of conduct and safety, or refusal to do his job, then the procedure for parting with such an employee is as follows:

The management must issue an act proving the incident.
Obtaining written explanations from the perpetrator of the incident (Labor Code of the Russian Federation, Article 193) within two days after the incident.
Registration of the order and notification of the offender.
Payment.
Issuance of "labor" and required certificates.

So that the employee does not have a reason to defend his rights in court, every violation of labor discipline must be reflected in his case. Delays, absenteeism, refusal to perform duties and other manifestations of a careless attitude to work should be formalized in the form of reprimands, penalties, suspension from work, etc.

When making a decision, it is important to remember that an employee's violation of discipline may have a valid reason. For example, absenteeism may turn out to be an absence from work due to illness, confirmed by a certificate from a medical institution. In this case, the dismissal under this article cannot be executed, since both the labor inspectorate and the court will side with the employee.

Despite the direct indication in the Labor Code of the possibility of dismissing a person for drunkenness, the employer will have to prove that the employee was drunk exactly at the time of the work. If a drunk employee finds himself at the workplace after a working day or outside of his shift, this cannot be a reason for dismissal.

"Guilty Actions"

The most categorical type of dismissal is violations related to proven offenses that have caused damage to the enterprise. In this case, the registration procedure is similar to dismissal for violations. The employee's fault is recorded in the act and confirmed by a court decision. Often, business owners do not bring the case to court, allowing the employee to leave “of his own free will,” as his illegal actions directly affect the reputation of the company.

The legislation also allows for the dismissal of workers with the phrase “loss of confidence”. Such a reason for dismissal may be associated with the negligence of the employee or willful actions that caused or could cause damage to the activities of the company.

It should be remembered that for this reason, you can only part with those employees who are officially assigned financial responsibility. Most often, they are employees of the financial block, sellers, logisticians and warehouse employees.

Lack of professional skills

When it comes to performance claims, the staff assessment steps should be followed for dismissal.

A representative of the trade union must be included in the attestation commission. Only a fixed unsatisfactory result can lead to dismissal. Before dismissing an employee, he should be given the opportunity to prove himself in an easier and less profitable position, or to improve his qualifications within the agreed time frame.

Procedure:

Issue of an order for certification, notification of employees;
Conducting assessment activities with the participation of trade union representatives;
Notification of the results of the assessment.
Provision of an alternative duty station that matches the qualifications of the employee. This item is optional, its implementation depends on the management of the company.
Registration of a transfer or dismissal order.
Payment.
Issuance of personnel documents.

When dismissing an employee "under the article", you should make sure that the facts of non-compliance of the employee with the established standards are confirmed, and there are no valid reasons for their justification.

Special conditions and procedures for dismissal

For certain categories of citizens and depending on the circumstances, there are exceptions in the legislation. They are associated with the inability to dismiss an employee for some of the above reasons, provide for a different procedure, regulate the terms of notification and conditions for terminating the contract.

On probation

Often, managers see a trial period not as the prospect of finding a suitable candidate, but as an opportunity to use cheap labor for an acceptable period. Employees are not paid extra, and sometimes they are not paid at all, they are unjustifiably dismissed. Employees, not knowing the intricacies of the law, only pander to such employers. Meanwhile, the dismissal of an employee who did not suit the employer on the probationary period is strictly regulated.

Despite the fact that an employee undergoing testing, the law allows you to be dismissed according to a simplified scheme, you should adhere to the established norms (Labor Code of the Russian Federation, Article 71).

Attention to the design of the subjects.

It is important to remember that a probationary period is considered as such only when its presence is spelled out in the contract with the employee. The absence of a mention of the timing of the employee's verification in the text of the document cancels all the conditions regarding the simplified dismissal procedure, since it is considered that the employee was accepted into the state without a preliminary test. The same applies to compliance with the maximum duration of the trial period. For the bulk of specialties, it corresponds to three months.

Confirmed basis.

Grounds for dismissal on probation include the entire list of reasons for dismissal of any of the employees ( Article 81 of the Labor Code of the Russian Federation). In addition, anyone who could not pass the test with dignity can be fired. To do this, the employer must evaluate the employee's results and announce them.

Timing.

They are obliged to notify the employee about the upcoming dismissal in writing three days before the end of work, indicating the reason for the decision. If the trial period has come to an end, it is considered that the employee has passed the test successfully. That is, the employer can part with the employee on his own initiative on the basis of the "failure" of the test, no later than three days before its end. After the probationary period, the employee must be dismissed on a general basis.

Dismissal of a pensioner

The procedure for dismissing older employees is not much different from the general one, but it has its own nuances that should be taken into account.

Downsizing benefits.

This category of citizens has a priority in the right to remain in office, in comparison with other employees (Labor Code of the Russian Federation, Article 179). Also, they should first of all be offered positions in place of the redundant ones.

Attention to the reasons.

Under no circumstances can the employee's age be the reason for dismissal (Labor Code of the Russian Federation Article 2). Retirement must be initiated by the employee himself. The exception is a number of positions and specialties in which an age qualification is established. A change of position or dismissal of a pensioner for health reasons is possible only if there are documented medical indications.

Working off.

Upon dismissal, which is associated with the retirement of an employee, the latter is exempted from work and may leave the service on the day the application is filed (Labor Code of the Russian Federation, art. 80). Having quit once on this basis, a pensioner who continues to work does not have repeated benefits for exemption from work.

Entering data into documents.

When registering the dismissal of an employee who is retiring, it should be remembered that an entry in a work book with this wording is allowed only once. Subsequent dismissals must be formalized, in accordance with clause 3, part 1, article 77, as leaving of their own accord.

Dismissal of a disabled person

People with disabilities are one of the most vulnerable categories. Legislative protection of their rights has been strengthened. An employer will invariably face legal constraints when deciding to fire a person with a disability. Especially if the employee received the disabled status during the period of work.

Official dismissal threatens only those employees who will be recognized by the medical board as incapable of work (group 1 of disability). They are excluded from the employment relationship, and the employer has the right to dismiss such an employee without additional reason.

If a citizen, despite his disability, is able to work, then the management is obliged to organize working conditions that allow the employee to continue working. This applies to disabled people of groups 2 and 3. In the first case, although the employee's illness can be long-term, it most often limits his ability in one specific area. Accordingly, a disabled person of group 2 still has the opportunity to work fruitfully in another position and under preferential conditions:

35 working hours per week instead of 40;
lack of night shifts;
lack of work in excess of the norms;
vacation up to 60 calendar days.

If the employee is assigned to the 3rd group, this means that the disability is either minimal or occurs periodically. The dismissal of a disabled person of group 3 due to limited working capacity is the most difficult, since such employees need a small reduction in workload to fulfill their duties.

If, after the establishment of the group, the rehabilitation of the employee is short-term, no more than four months, then the management should find an opportunity for facilitated work. With a longer rehabilitation or the inability to comply with working conditions corresponding to the conditions of engineering and technical personnel, it is permissible to dismiss the employee.

Possible options:

dismissal, as a result of the employee's refusal from the position offered in exchange;
dismissal on the basis of the inability to perform the proposed work (carried out in the absence of facilitated work, the impossibility of providing the working conditions acceptable by the rehabilitation program for the employee);
transfer to another job based on the results of the assessment of the attestation commission, confirming the lack of compliance with the position associated with a changed state of health;
dismissal for violation of labor discipline;
dismissal in case of liquidation of a company or reduction in the number of personnel.

Special procedure for dismissal due to disability:

The procedure for suspension from work is carried out as soon as the employee received a certificate of assignment of a disability group.
Familiarization of the employee with the decision, offering him another job that meets the conditions in the rehabilitation plan.
Execution of a dismissal order, a preliminary statement from the employee is not required.

The order must include:

a link to the decision of the medical board;
indications of the rehabilitation plan;
results of workplace certification;
job descriptions.

The purpose of the document is to substantiate the impossibility of continuing the work of an employee in his position.

Transfer, and in case of refusal of the employee or the absence of a vacant position that meets the conditions, dismissal.
On the last day, the calculation and issuance of documents is made.

If the disability is obtained during the period of work, the disabled person has the right to receive severance pay designed to compensate for the loss of ability to work.

Women

A special category of employees upon dismissal is made up of women preparing to become mothers and having children. Their interests are strictly protected by the state, dismissal on a general basis is not allowed.

Pregnant

The legislation prohibits the dismissal of pregnant women during the probationary period, as well as in the neglect of the latter labor duties.

The decision to dismiss will be legal only if the employee's further work is impossible ( Labor Code of the Russian Federation article 81):

upon liquidation of a company;
if the term of the contract has expired;
the enterprise changes its territorial location, and the employee herself refuses to move;
the employee is not satisfied with the changed working conditions;
proven inability to continue working;
the employee has expired an admission (license) to carry out work.

Often, to dismiss female employees in a “position”, management resorts to dismissal at the initiative of the employee. However, if a woman goes to the labor inspectorate and reports coercion, the supervisory authority most often takes her side, as does the subsequent court.

Single mothers

If a single mother has a child under the age of 14 or is dependent on a disabled person who has not reached the age of majority, dismissal at the initiative of the employer is limited (Labor Code of the Russian Federation, Article 261).

Dismissal is permissible (Labor Code of the Russian Federation Article 336):

upon termination of the organization's work;
for gross violations of labor discipline (if the employee has penalties - Clause 5 of Art. 81 of the Labor Code of the Russian Federation);
for immoral behavior;
if proven guilt has caused (or is capable of causing) damage to the organization;
upon detection of a deception committed by an employee when applying for a service.

It is important to clearly understand the boundaries of the definition.

Single mothers are women:

have given birth to a child from an unidentified father and are not married;
adopted children without a husband;
in children whose fathers have successfully challenged paternity.

If the above factors are not present, then a woman who divorced her marriage or a widow cannot be considered lonely. In the first case, the father must take part in the maintenance of the child, and in the second - the state.

The same restrictions apply to those mothers who have one of their children under the age of three, as well as fathers with many children.

Leading employees

There is also a special procedure for dismissal for management and leading specialists. It applies to the director, his deputy, the chief accountant and other positions determined by the charter of the company. Often in their employment contracts the terms of dismissal are stipulated separately, since the termination of their work directly affects the activities of the organization as a whole.

The position does not affect the reason for dismissal, but its procedure.

The dismissal process affects many aspects, therefore, a transitional period is established during which the dismissed employee will be able to transfer cases.

If an employee who is financially responsible is dismissed, then a special commission is preliminarily created to audit the content of accounts, organization funds and documents. To account for values, an inventory is carried out before the dismissal of an employee.

The dismissal order must contain:

check results;
the person who is appointed to fulfill the duties of the dismissed person during the transition period;
the period of the transition period;
the procedure for the transfer of cases and the form of acts of acceptance and transfer.

The term for leaving should be calculated so that the employee can transfer cases by the last day of dismissal.

Legal implications

Many employers, when faced with "inconvenient" or unscrupulous workers, prefer to come to an agreement on termination of work by agreement of the parties or at the request of the employee. It is difficult, but possible, to prove that an agreement or a statement written “of their own free will” was made by an employee under duress. If the employee is able to prove the intention of the management to dismiss without reason, the company may be involved in legal proceedings.

The results can be:

fine;
compensation to the employee for the forced absence of work and moral damage;
the need to reinstate an employee in office.

Even if the employee does not go to court, but only goes to the labor inspectorate, the sanctions imposed by law will still follow.

In addition to unlawful dismissal, an employee can complain about a violation of the order of dismissal or lack of necessary payments. Therefore, when deciding whether an employee can be fired, it is necessary to carefully follow the conditions prescribed by the law.

One of the easiest and most affordable ways to quit is to write an application of your own free will. But it should be remembered - you will need to work for two whole weeks. At the same time, there are several completely legal ways to avoid working off.

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Is it possible

The legislation in force in the territory of the Russian Federation allows you to terminate an employment contract between an officially employed employee and his employer in various ways.

The most commonly used today is the dismissal of one's own free will. This procedure for terminating labor relations is the simplest and fastest, it is the most convenient for the organization and the employee. It has many different advantages.

The issue of voluntary dismissal is considered in maximum detail in the Labor Code of the Russian Federation of December 30, 2001, as amended by the law, in "Termination of an employment contract on the initiative of an employee."

The only drawback of the considered method of terminating an employment contract is the need to notify your employer at least 14 days in advance.

At the same time, during this entire period, the employee is obliged to fulfill his official duties. But there are ways to avoid this.

For example, this is a dismissal of his own free will during sick leave - without processing this can be done quite simply.

The two-week period includes sick leave and vacation. Thus, you can simply not attend work, providing your employer in the future with only a sick leave.

Also, without two weeks' work, one day an employee has the right to quit in the following cases:

in case of violation of labor legislation by the employer;
on the basis of non-payment of wages - according to the Labor Code of the Russian Federation.

Dismissal without working off is allowed if something happened to the employee's child, as well as to any of his close relatives.

But this is only possible with the agreement of the employer. If an agreement is not reached in such a situation, the employee has every right to go to court.

Practice shows that in most cases it is natural persons who win such cases.

By agreement with the employer, it is possible to quit without any serious reason if he decided to make concessions to his employee.

The rules for dismissal of your own free will without working off

There are many nuances associated with dismissal of their own free will without working off. Both the employer and the employee need to know them.

Since the violation of the dismissal procedure gives the former employee the opportunity to go to court and demand compensation.

The most important nuances of voluntary dismissal without working off are the following:

the employee is obliged to warn about dismissal in writing;
an application with a request to terminate the employment contract can be withdrawn by the employee himself at any time;
even if the employer refuses to dismiss the employee, he has the right to stop working after 2 weeks from the date of the written warning.

On the last working day, the employer must:

issue an employee a work book with a corresponding entry made in it;
calculate and pay the balance of wages.

The quitting person himself must necessarily check the wording in the work book. There must be a link to Art. No. 80 of the Labor Code of the Russian Federation.

If the record is different, then this is a serious violation and the employee has the right to go to court.

Upon dismissal, the last deadline for transferring debt to former employees is the day following the date of dismissal. If, for some reason, the employer did not transfer funds on time, then a penalty will be charged.

The payments necessarily include compensation for vacation, as well as bonuses and other funds that the employer is obliged to pay to his employee.

In this case, all income is subject to mandatory personal income tax. Moreover, this fee should be paid to the budget by the enterprise itself, but not by the employee.

What could be the reasons

The list of reasons why you can resign of your own free will and not work for two weeks is quite limited in the legislation.

But at the same time, there are factors in the presence of which it is desirable for the employer to terminate the employment contract at the request of the employee as soon as possible.

This list includes the following:

illness of an employee;
the presence of a disability of any group;
upon retirement or if the employee has already reached retirement age;
there was a need to take care of a seriously ill relative;
admission to a higher educational institution;
moving the employee or his spouse to another city;
care for a disabled minor is required.

Most of the above reasons are not reflected in any way in the Labor Code or the laws of the Russian Federation.

But if one of the above factors was identified by the employee as an explanation for the need to dismiss without working off, then you should not insist on the opposite. Since in this case, the employee can go to court and, most likely, will win it.

For dismissal without working off, the employee himself must remember that he will need to provide documents at the place of work confirming the fact that there are difficult circumstances.

These can be certificates from medical institutions, certificates of a pensioner or a disabled person, etc. It must be remembered that forgery of documents is punishable by the legislation in force on the territory of the Russian Federation, the corresponding article from the criminal code.

Procedure

The very procedure for dismissal of one's own free will is quite simple, it is implemented in the following order:

the employee writes a statement with a request to terminate the employment contract;
the personnel service is obliged to form an appropriate order of the type;
the employee must be surely familiarized with the text of the order against signature;
on the day of dismissal or on the next, the salary is transferred for the position, and a work book is also issued.

If, for some reason, the employee is not able to pick up the labor document on his own, the employer can send it by registered mail with a list of attachments.

To do this, the resigning person himself must make an appropriate note in his application.

Even if the dismissal is carried out after the vacation, the procedure for this legally important action remains the same and does not change.

It is important to remember that if, for some reason, the employee is not able to write a letter of resignation personally and transfer it to the place of employment, as well as all the documents necessary for this, then you can always do this by mail.

For the dismissal of an employee, it is advisable to use the T-8 form. It was approved by the decree of the State Statistics Committee of 05.01.

At the same time, in the order itself, there must be a reference to the article of the Labor Code, on the basis of which the dismissal was initiated.

In this case - the Labor Code of the Russian Federation. It is also required to indicate the details of the employee himself, as well as the reason for dismissal.

If, for some reason, it is not possible to familiarize the employee with the text of the order, then a corresponding entry is made on the document.

It is important to remember: when dismissing without work, the employer has the right to demand an explanation from his employee. Whereas under the standard procedure for dismissal, with working off, the enterprise does not have such a right.

It is not uncommon for employees to use their vacation in advance. In this case, it must be remembered that the employer has the right to withhold a certain amount.

But at the same time, its value cannot exceed 20% of wages. Moreover, in some cases, retention is not just impossible, but illegal. A complete list of such situations is indicated in the Labor Code of the Russian Federation.

But at the same time, it should be remembered that in order to hold on to dismissal without working off, it is necessary to have the consent of the employee himself.

In its absence, the employer simply cannot perform this kind of action. The way out for him may be going to court.

But such litigation is far from always economically justified. Therefore, in some cases, employers simply "forget" about the employee's debt. This is only possible if the amount is small.

How to write a statement

It is necessary that the written application must meet certain criteria. At the same time, there is no strictly established form.

This document must contain the following information:

surname, name and patronymic:
- the head;
- an employee of the personnel department;
- the employee himself;
employee signature;
date of dismissal and filing of the application itself.

In the text of the application, the request for dismissal should be formulated as briefly and accurately as possible with references to legislation that makes it possible to terminate the employment contract without working off. You should also indicate the very reason for the dismissal.

If, for some reason, the employee is at odds with the management, you should put a mark on the acceptance of this application in the personnel department, or simply send it by mail.

Since there are cases when such documents are simply sent to the trash bin. A mark of acceptance or sending by mail makes such an action simply impossible, the employer will be obliged to accept an application from his employee.

Dismissal of a disabled person

It is important to remember that the presence of a disability in itself is not yet a reason for dismissal without work.

The procedure for terminating an employment contract with disabled people is similar to this procedure carried out with quite healthy people - according to article 80 of the Labor Code of the Russian Federation.

The only case when the contract can be terminated without working out is the employee providing documentary evidence that the work cannot be continued by him for any serious reasons.

It can be a complication of the disease, due to which a disability is assigned or otherwise. In all other cases, an employee, even one with a III or II group disability, is obliged to work for 2 weeks - at the request of his employer.

In the absence of serious grounds, a disabled person can resign earlier than 14 days from the date of writing the application only with the agreement of his superiors.

This moment is fixed at the legislative level. The situation is similar with the dismissal of one's own free will without working out a part-time job.

In connection with the move

According to the law, relocation is one of the rather serious reasons on the basis of which an employee can write a letter of resignation without work.

But at the same time, the employer is not obliged to provide his employee with the opportunity to quit before the expiration of the two-week period - this is his right.

There can be only two alternatives:

find a compromise with the authorities;
file a lawsuit.

At the same time, the trial in this case sometimes takes much longer than 2 weeks.

Also, such events involve not only a waste of time, but also money. That is why, if the employer refuses to fire his employee without working off, the easiest way is to postpone the move.

An exception is a change of residence for some serious reason - illness, death of close relatives, or something similar.

In this case, the employer should already avoid refusal to dismiss without work. Otherwise, the employee can file a claim in court demanding compensation for moral and material damage.

Every hired person is free to determine his preferred professional direction, the form of his employment, as well as the desired workload. His right to work freely and not be afraid of the arbitrariness of managers is guaranteed by labor legislation. It also contains the basic principle of interaction between the employee and his employer: there must be good reasons for dismissal at the request of the employer, and dismissal at the initiative of the employee is possible simply at his request.

What are the grounds for dismissal on the initiative of an employee under the Labor Code of the Russian Federation?

The main norm of the Labor Code of the Russian Federation for an employee seeking to change or leave his place of work is Art. 80 of the Labor Code of the Russian Federation. According to her, no employer can refuse to dismiss his employee, about which he was notified in writing not less than two weeks in advance. At the same time, a person has the right not to specify the reason for his departure and not agree to a longer period of work. Only those who decided to shorten or completely avoid the warning period about the upcoming settlement should devote the employer to the details of the current life circumstances.

Special norms of the Labor Code governing the procedure for dismissal at the initiative of an employee concern particulars:

increased term of service for managers, Art. 280 of the Labor Code of the Russian Federation;
deferral of dismissal until the end of the vacation, Art. 127 of the Labor Code of the Russian Federation;
opportunities to change your mind, Art. 64 of the Labor Code of the Russian Federation.

Conventionally, the desire of the employee can also be called the option with the termination of the employment contract by agreement with the employer, Art. 78 of the Labor Code of the Russian Federation.

Reasons for dismissal of their own free will

The law does not prohibit the manager from asking the employee the reasons that prompted him to write a statement of his own free will. But at the same time, if the person himself does not agree to disclose them, the employer cannot insist or put forward additional conditions. Each working specialist must understand that, on his own initiative, an employment contract of any kind can be terminated: urgent, unlimited, seasonal, or for the period of replacement of an absent employee. Moreover, you can write a letter of resignation at the initiative of the employee even the next day after signing the employment contract.

An employee who has given two weeks' notice of dismissal is not obliged to explain the reason and give additional explanations about his or her departure.

On sick leave

The general procedure for dismissal on the initiative of an employee involves the advance notification of the management of his intentions. But during the 14 days allotted for this, many events can occur that can affect the dates and dates, and sometimes the very desire to leave. In particular, it is not uncommon for the employee who wrote the application to go on sick leave during the period of working off. If the period of incapacity for work ended quite quickly, then the HR department does not have problems with dismissal and transfer of documents. More difficulties are associated with the fact that the employee does not recover by the date of the planned check-out.

The firm conviction that dismissal during vacation or sick leave is prohibited makes the personnel officer think about the correctness of his own actions. In fact, it is impossible to terminate an employment relationship with an unhealthy employee solely on the basis of the employer's will, Art. 81 of the Labor Code of the Russian Federation. If the desire to pay off arose from the employee himself, then issue the employee's dismissal on the basis of Art. 80 of the Labor Code of the Russian Federation is necessary at the scheduled or specified dates. At the same time, the employer remains under the obligation to pay for the time of illness, pay the due calculated ones and transfer the labor on the next day after recovery.

For health

If the employee's disability becomes systematic and prevents him from working fully, then he himself can refuse to continue working so as not to wear out his already shaken health. It must be understood that we are not talking about the establishment of disability or inadmissibility to work on medical grounds, because then the termination of the contract will occur for reasons beyond the control of the parties, Art. 83 of the Labor Code of the Russian Federation.

For those who do not feel the strength to continue their labor activity in their position, there is a legal basis not only to pay at the initiative of the employee, but also to dismiss the employee in one day. The same Art. 80 of the Labor Code of the Russian Federation, which says that the impossibility of fulfilling one's labor functions is considered a good reason for refusing to work.

The right to assess the seriousness and validity of the grounds given by the employee is left to the employer.

By early reduction

When the home enterprise begins economic or organizational difficulties, it often sacrifices part of the team and announces a reduction in the number or staff. It is difficult to assume that most of them really wanted to look for a new job, but even in this case, there is an opportunity to convey their own will to the management.

Is it possible to change your mind about quitting?

It so happens that a person makes the decision to leave out of a fever, but, in fact, he did not plan to change his life so radically. The Labor Code allows the employee to change his mind and withdraw the application without consequences if he managed to change his intentions before the date of dismissal.

Deprived of such an opportunity are those who chose the calculation after using the vacation and have already managed to go on vacation, Art. 127 of the Labor Code of the Russian Federation. The same group includes those in whose place a new employee has already been hired, and he entered on the terms of transfer from another company, Art. 64 of the Labor Code of the Russian Federation.

In the work biography of every person, anything happens, and a job change is not such an exceptional event. In order for the separation from the previous employer not to turn into unpleasant memories, the employee must, firstly, clearly understand what he has the right to do, and secondly, remember the obligations that remain for him.

Lawyer of the collegium of legal protection. He specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other normative documents to regulatory authorities.

I wrote this material to acquaint you with how to correctlyresign of their own accordwithout any negative consequences, no matter what category of employees you belong to: an ordinary employee or a manager of any link.

Russian legislation provides for the human right to free labor. This means that everyone has the right to independently choose the type of labor activity (or not choose any - the Soviet norms on liability for parasitism have long been canceled), to conclude and terminate an employment agreement (contract). And one of the main reasons for termination is voluntary dismissal.

This article is devoted to how to properly arrange such a dismissal, and what you should pay attention to.

○ Dismissal of your own free will.

✔ TC on dismissal of their own free will.

The current Labor Code of the Russian Federation (hereinafter for simplicity - the Labor Code of the Russian Federation) provides in Art. 77 list of grounds on which an employee can be dismissed. This list is open, but those grounds that are not included in it refer to rather rare professions and positions (such as judges, employees of the Investigative Committee or the Prosecutor's Office, municipal or public service officials), and therefore 11 points of this article are enough for the absolute majority of employees. ...

Specifically, paragraph 3 of Art. 77 of the Labor Code of the Russian Federation, which in turn gives a reference to Art. 80 of the same code. In fact, Art. 80 is all that an employee needs to know, who wants to quit correctly and without unnecessary problems.

The dismissal procedure itself for employees who entered into an open-ended employment contract has not changed since 1992, when the Soviet Labor Code (Labor Code) of the RSFSR (later - the Russian Federation) from 1972 was still in force. However, the Labor Code of the Russian Federation, in force since 2002, has significantly eased the position of workers on a fixed-term contract: now they can leave on general grounds, without proving to the employer that they have valid reasons for dismissal.

✔ What is the reason for writing in the application?

The legislation does not describe in detail what the employee may have reasons for dismissal of his own free will. This is his personal business, which does not concern anyone. Even if he wants to quit because he does not have time to pet his beloved cat before work, he has the right to write a letter of resignation.

The reasons why an employee is dismissed matter only for the so-called “ working off»- the period during which the employee who submitted the application is obliged to continue working. As a general rule, this period is set at least two weeks from the date of application. However, if the dismissal is due to good reasons, working off is not required. The Labor Code of the Russian Federation indicates the following as valid reasons:

If the employee is unable to continue working (due to retirement, enrollment in an educational institution, etc.).
If the employer seriously violates labor laws or contracts and agreements with a specific employee or team.

However, this list is not exhaustive, and by mutual agreement, the employee and employer can do without observing the term of the notice of dismissal.

The validity of reasons for dismissal of their own free will was required, as already mentioned, until 2002 for workers on a fixed-term employment contract, and also until 2010 - to maintain continuous work experience. Currently, due to changes in pension legislation, continuous service has practically lost its significance for the appointment of pensions. Where it is still taken into account for receiving departmental benefits, only the interval between dismissal and new employment matters, and not the reasons for the dismissals.

✔ A list of necessary conditions for dismissal on their own.

Strictly speaking, only one condition is necessary - the desire of the employee himself. Having warned the employer in advance and having worked the prescribed two weeks (or more, if the application was submitted for a longer period before the expected date of dismissal), the employee has every right to stop any activity at the old enterprise and no longer appear there.

None of the employer's requirements matter. If you are required to complete some work, pre-sign a bypass sheet, etc., and without this they threaten not to issue a work book, do not worry, but feel free to stop work. The law is on your side, and an intractable employer can make trouble by filing a complaint with the court or with a complaint to the prosecutor's office. Experience shows that this is more than enough.

✔ Step by step order / procedure for dismissal.

So you've decided to quit. How should you proceed?

The first thing an employee needs to do is submit an application. The law does not establish any requirements for its form, but the easiest way is to use sample statement which is easy to find on the Internet. The application is submitted to the employer, which is usually the head of the enterprise. Depending on the internal regulations of the organization, the application can be submitted through the reception of the director, the personnel department, etc. - the main thing is that the application ends up with the head. If you work in a branch of an organization, then it is better to submit an application at the location of the head office.

Sometimes a dismissal is preceded by a conflict between the employee and the management of the enterprise. If you fear that the application will be lost or destroyed, in order to then dismiss you "under the article" (that is, for gross violation of labor duties or discipline at the enterprise), then you need to insure yourself in advance. As a rule, it will be enough to write a statement in two copies. Then one copy is transferred to the management of the enterprise, and on the second, a personnel officer, secretary or other person having the necessary powers in accordance with the internal rules of the organization puts a mark on acceptance: the date when the application was received, an indication of the position, a signature with a decryption. A statement with such a mark will be reliable evidence in the event of a trial. If they refuse to put a mark, then the best solution would be to send an application by registered mail with a notification and a list of the attachments. This is a long journey (the letter will take at least three days), but it is absolutely reliable: the signature and date on the mail notification will unambiguously indicate that the letter was received on that day, and the list of the attachment with the mark of the post office in court will be proof that it was sent exactly the letter of resignation.

But the application has already been submitted. From this moment, in accordance with Art. 80 of the Labor Code of the Russian Federation, the term of the notice of dismissal begins to run. As already mentioned, it must be at least two weeks old. In the same case, if the employee wishes to quit without work, the employer has the right to demand documents confirming the grounds for early dismissal. If there are no such documents, you will have to work for two weeks.

During the term of service, the employee must fulfill his duties in accordance with the employment contract. Filing a resignation letter of your own free will does not prevent your employer from firing you for absenteeism or other violation, if any. However, in the event that an employee falls ill, the warning period is not interrupted. In this case, the employer is obliged to issue a dismissal order, make a calculation and issue a work book, even if the employee is on sick leave. If the employee cannot appear for the labor in person, then, with his consent, it can be sent by mail, or it will be issued after recovery.

It must be remembered that if you were a financially responsible person by position and were personally responsible for the safety of any property of the employer, you should return this property upon dismissal by signing the relevant documents - otherwise, the management of the enterprise may bring you to justice. However, signing or not signing a bypass sheet and other internal documentation is not related to dismissal and only means that, if necessary, you will have to do this without being an employee of the enterprise. The management will still be obliged to issue a work book and carry out a full calculation.

After the expiry of the term of employment, the employee is obliged to stop his labor activity. If he continues to perform his duties and does not insist on dismissal, then, according to the law, the employment contract is considered continuing, and the entire dismissal procedure must be started anew.

In addition, during the entire period of the notice of dismissal, the employee has the right to withdraw his application and continue working. The only exception will be the case when another employee has already been invited in his place by transfer (Article 64 of the Labor Code of the Russian Federation). However, in this case, the new employee must be invited from his organization in writing, and the quitting one must be familiar with this invitation and the consent that his future successor gave for the transfer.

✔ What record will be put in labor?

It should be remembered that the work book is a rather strict document, and the outcome of possible disputes over the length of service and the type of work activity often depends on the correctness of the entries in it. Therefore, upon dismissal for any reason, including at their own request, the employee must make sure that the personnel officers of the enterprise make an entry in strict accordance with the Labor Code of the Russian Federation. The current instruction for filling out work books provides that the entry is made with reference to Art. 77 of the Labor Code of the Russian Federation - a general article providing all the grounds for dismissal, and not on Art. 80 of the Labor Code of the Russian Federation, which specifically refers to dismissal at the initiative of the employee.

Therefore, the entry in the work book for the resigning person must contain a reference to clause 3 of Art. 77 of the Labor Code of the Russian Federation and the words "dismissed of his own free will" or "dismissed at the initiative of the employee." Let us emphasize again: in the labor instructions of Art. 80 of the Labor Code of the Russian Federation should not be! This is a very common mistake that is made in many HR departments, but due to its prevalence it does not become acceptable.

In the event that upon dismissal you found that a mistake was still made, you need to demand that a new entry be made immediately: "Entry by number ... (the number of the erroneous entry should be here) is invalid". After that, personnel officers must already make the correct entry for the next serial number.

To end the conversation about entries in the labor book, let us pay attention to the fact that records in the labor book are made only in full words, without abbreviations. Therefore, it should not be written “p. 3 tbsp. 77 of the Labor Code of the Russian Federation ", and" paragraph 3 of Article 77 of the Labor Code of the Russian Federation ".

To make the dismissal of your own free will go as painless as possible for both parties and not negatively affect your future career, there are several simple rules:

It is necessary to resign with careful observance of the procedure provided for by the Labor Code of the Russian Federation. It is also necessary to comply with the requirements provided for by the internal documents of the organization - but only within the limits that do not contradict the law and only if you were familiarized with them against signature.
Conflicts with your former employer should be avoided whenever possible. Of course, your rights need to be protected - but the job market is not that big, and your new leader can contact the old one. It is best to leave a good impression of yourself, and if for this you need to meet the former boss in some way, it is better to do so.
Be careful when returning tools, equipment, documents that you used at your previous job. The best option here is to transfer the inventory to a new employee who came to your place, if there is none, then to a representative of the company's management. In the event of a conflict, this will allow you to avoid accusations of theft.
During the period of working off, take your responsibilities as responsible as possible. There should not be any violations (late arrivals, absenteeism, etc.) - otherwise, you can easily find a dismissal entry in the work book, not at will, but at the initiative of the employer.
Dismissal of one's own free will should be voluntary. In practice, there is a situation when the employer requires the unwanted employee to write a letter of resignation himself - in this case, you do not need to look for another reason for dismissal and pay severance pay... But such requirements are completely illegal. If the employee is threatened with the fact that otherwise he will be “fired under the article” (that is, for any violation of the law or labor contract), the employer thereby admits that he himself is preparing to break the law. Illegal dismissal in this case, it will be possible to appeal in court, having achieved recovery at work... However, since it is extremely problematic to work with such a relationship with management, most employees seek through the court to change the wording on dismissal of their own free will and payments compensation for forced absenteeism. In addition, the court can also recover compensation for moral damage from the employer.

The procedure for dismissing an employee is determined by the provisions of the Labor Code of the Russian Federation and refers to carefully regulated procedures. This is perhaps the most difficult part of the relationship between an employer and employees.

Legislation protects the rights of not only those who work, but also those who provide work, therefore, the ability not to face problems later depends on compliance with all the nuances and requirements. This applies to mutual claims for settlements, complaints about illegal dismissal, errors in payments and issuance of documents.

Grounds for termination of employment

The grounds for terminating the employment contract are set out in Art. 77 of the Labor Code of the Russian Federation. This is a general list of reasons why a termination decision may be made. You can terminate a relationship in accordance with the law in the following ways:

by agreement of the parties - this is an option in which the employer and the employee can jointly work out the terms of separation and formalize them in the form of an addendum to the main contract, and this can be done even at the stage of hiring;
at the employee's own request, which the employer cannot interfere with;
on the initiative of the employer - this includes all cases when the continuation of labor relations, in the opinion of the employer, becomes impossible, including the termination of the existence of the enterprise, and other reasons;
for other circumstances beyond the control of the parties, these are both the requirements of the law and the fulfillment of public duties.

Both parties must understand that upon dismissal, grounds that are not prescribed in the Labor Code cannot be used, and some of the formulations are used only in a limited number of cases.

Who cannot be fired at the request of the employer

The rules for the dismissal of employees of an enterprise, company or individual entrepreneur limit the employer's options in relation to several categories of persons.

These are pregnant women and raising children (until they reach the age of three), single mothers with children up to 14 years old, mothers with disabled children up to 18 years old, and persons who are subject to the wording: “raising children on their own”.

It also applies to fathers, so a man with a child without a mother, guardian or adoptive parent, under such circumstances, cannot be fired either. The only exception is the termination of existence (liquidation) of the enterprise.

Benefits of dismissal by agreement of the parties

The practice of personnel work shows that in the overwhelming majority of cases, termination of labor relations occurs either at the employee's own request, or at the initiative of the employer. The conclusion of an agreement is much less common, since not everyone understands the very essence of this form of dismissal. But, from the point of view of both parties, it provides certain advantages and guarantees:

a correctly drawn up agreement of the parties that does not violate the requirements of the law guarantees the absence of mutual claims in the future;
it will be easier for an employee to register as a job seeker (unemployed);
this form of dismissal allows you to agree on payments from the employer and avoid working out the prescribed two-week period;
the employer insures himself against cases when he is accused of forcing the employee to write a statement of his own free will.

This is an interesting subtlety that is well known to experienced HR executives and executives. If the parties have agreed on the terms of termination of the employment agreement, the dismissal can be completely painless.

Dismissal at the request (initiative) of the employee

The procedure for dismissing an employee on his own initiative assumes that the employer will have time to find a replacement and accept the appropriate personnel changes. Article 80 of the Labor Code of the Russian Federation establishes the rules for the execution of such a decision:

the application is submitted 2 weeks before the date of the final settlement, regardless of whether the employee is on the spot or is sick, uses vacation;
the dismissal order is drawn up in advance; at the time of termination of the relationship, it must be signed by both parties (the employee is familiar with);
on the last day, the employee receives a work book, a certificate of 2 personal income tax and those documents that he previously requested in writing;
subsequently, the dismissed person can apply at his former place of work for extracts, certificates and confirmation of his labor activity.

After receiving and registering the application, the employer cannot change the timing of its execution, and the employee has the right to withdraw it at any time and continue working. That is why it is recommended to check the registration of the application at the time of its submission, so that later you do not end up in the position of a truant. If the order of dismissal is not signed and not prepared by the specified date, then the employee may not appear at the place. But if the application is “lost”, then it will be extremely difficult to prove its filing.

A two-week period of work is not considered mandatory if the employee announced the move, was drafted into the army, enrolled in school, or retired. The violation of the Labor Code of the Russian Federation by the employer belongs to the same category. All circumstances must be evidentiary - they must be documented.

Calculation initiated by the employer

The employer has the right to take the initiative and fire an employee if he systematically fails to fulfill his duties, commits violations of discipline and internal rules, and was disqualified.

Dismissals for violations

Upon dismissal due to constant violations, it is necessary to collect an evidence base, which will include orders with their description. It is possible to use the wording “loss of trust” only in relation to persons directly connected with the financial part or material values, for example, cashiers, storekeepers. You cannot apply this approach to a chief accountant or economist.

Drunk worker

What to do with a drunken employee? You can dismiss him, but only if he was brought in for examination, which confirmed the fact of intoxication. The employer must organize transport, and in case of a negative result of the examination, pay its cost from his own funds.

If you refuse this procedure, you will have to draw up an act, remove the offender from work and collect evidence in which there will be signs of intoxication. It is possible to call the police so that their representatives themselves organize the delivery to the dispensary.

It is possible to use "tubes" and other means, but they will not be considered evidence of intoxication without the conclusion of a narcologist who performed tests in the dispensary, while being at the workplace at the time set by the schedule.

Absenteeism and dereliction of duty

Recorded and confirmed absenteeism is considered the basis for dismissal. But there is also a subtlety here: if the employee has already been punished for him with a reprimand in the order, then he will have to wait for the next truancy.

Dismissal in this case is considered a disciplinary sanction, and it cannot be applied twice for one violation. Duration of absence from the workplace - at least three hours.

But it is forbidden to qualify as absenteeism a case when a person did not leave the territory of an enterprise or workshop - this refers to a failure to fulfill his duties. If there is evidence that the employee could not be found within several hours, then it becomes possible to consider absenteeism.

When is it impossible to fire?

A very important detail that applies to all cases of termination of employment by the employer is that it is impossible to fire a person on vacation or on sick leave. We will only have to wait for the end of this period.

As for payments and deductions from earnings at the time of termination of the employment contract, the employer should be careful and carefully study the provisions of the Labor Code of the Russian Federation. It is possible to withhold proven material damage only in the amount of one salary (no more), and compensation for the cost of overalls, if it was not returned on time, is allowed in an amount not exceeding 20% of the salary.

Any other deductions from the final calculation are not allowed and may lead to sanctions if the employee turns to the labor inspectorate.

How to act upon dismissal - instructions for the employee and employer

The process of dismissal by mutual agreement, the request of the employee or the initiative of the employer must comply with the requirements of the law. This applies to deadlines, paperwork, payments, and other features.

The order of actions of the employee

A step-by-step instruction for an employee looks like this:

an application is submitted with the wording “of your own free will”, you make sure that it is registered with the incoming number;
after the release of the order, sign an acquaintance with it;
two weeks later, you are provided with a calculation, a work book and a salary certificate, after which your obligations towards the employer are completed;
you have the right to withdraw your application at any time, while remaining in your previous position, without taking into account the relationship of the employer with his new employees or applicants for your place.

When making settlements by agreement of the parties, a period of two weeks is not required.

The order of the employer

On the part of the employer, the procedure for dismissing an employee should be as follows:

a statement is registered or a violation is recorded, which will become the basis for the termination of the relationship;
an order is drawn up, which indicates the reason for the dismissal, the date of the violation or the employee's appeal, a link to the article of the Labor Code is provided;
the employee is familiarized, and if they cannot find him, an act is drawn up with a description of the circumstances, which is attached to the order;
on the last day of work, a person receives a calculation and documents, and this must be done before the formal end of his shift according to the schedule;
a receipt is taken that the documents have been handed over, and if the person did not pick them up himself, everything must be sent by registered mail to the address specified in the contract.

Typical mistakes made by the employer in such cases are delayed payments, late submission of documents, indicating in the work book a wording not provided for by law. The grounds must be entered in accordance with the text of the Labor Code of the Russian Federation, while the article must be indicated!

Subtleties and features of dismissal

What other subtleties of dismissal should be considered?

There is the possibility of dismissal by transfer - this requires a document in which the new employer confirms his intentions.
Fixed-term employment contracts are terminated at the specified time, but they may include, for example, the performance of a certain amount of work.
For managers and responsible employees who must hand over cases, the term of work can be extended up to a month.
The employee has the right to refuse to continue the relationship with the employer if the working conditions change significantly, the production is transferred to a new place, which requires the relocation of employees, the staff is reduced, and you do not want to move to the remaining positions.

The right to withdraw the application of your own free will continues to operate even after the signing of the dismissal order, but only until you took the work book and read the order. Usually, to avoid overlaps, acquaintance is delayed until the last moment.