An employment contract is a legal document that defines the relationship between the parties to the agreement - the employee and the employer. This document establishes certain guarantees for the employee, as well as the powers of the employer. The contract specifies all working conditions, wages, rights and obligations of the parties.
The conclusion and termination of an employment contract is carried out in written or oral form, in accordance with the requirements of the law. Termination of an employment contract can occur for a number of different reasons. The procedure for terminating an employment contract is provided for by law, and the concept of its termination includes termination of the contract at the initiative of the parties.
Grounds for termination of an employment contract
The legislation clearly states all the reasons why an employment contract may be terminated or amended. These include:
- agreement of both parties;
- expiration of the contract;
- admission or conscription of an employee to military (or alternative) service;
- termination of the contract at the initiative of the parties - employee or employer;
- termination of the contract at the initiative of third parties (trade unions, parents or guardians in cases of working with minors);
- transfer of an employee to another enterprise or institution, to an elective position;
- the employee’s refusal to transfer him to another location or to work under different working conditions;
- entry into force of a court decision, sentencing, sentencing to imprisonment;
- the grounds specified and provided for in the contract.
Let's take a closer look at the main, most common reasons for termination of an employment contract.
Termination of a fixed-term employment contract
Termination of an employment contract with a specified period of validity is considered to be the end of this period. Notice of termination of such an employment contract must be provided to the employee at least three days before dismissal. An exception may be the expiration of a contract concluded for the duration of the performance of duties for another employee. In this case, the contract becomes invalid as soon as the employee enters the workplace. An agreement concluded for a season, that is, with seasonal workers, becomes invalid at the end of the season. A contract to perform a specific job ends when the work is completed. Early termination of a fixed-term employment contract can occur by agreement of the parties or on the initiative of one of them.
Agreement on termination of employment contract
An employment contract can also be terminated by agreement of the parties who entered into it. The date of the order to terminate the employment contract is discussed and agreed upon in advance. In such a case, the employee is not required to notify the employer of dismissal 2 weeks in advance. However, in order to indicate such a reason for termination of the contract, the consent of the employer is required, and the reason must be indicated in the employee’s application for termination of the employment contract.
Termination of an employment contract with a part-time employee occurs for the same reasons as for the main employee, 
and also has one additional basis - hiring in his place an employee for whom this work will be the main one.
Termination of an employment contract at the initiative of one of the parties
An employment contract can also be terminated on the initiative of one of the parties, for example, the employee. He has the right to do this at his own request, and is obliged to write a letter of resignation no later than two weeks before the planned date of dismissal.
Termination of an employment contract at the initiative of the employer may occur in the event of complete liquidation of the organization or enterprise, reduction of staff, inconsistency of the employee for the position held, or repeated gross violation of his duties without good reason.
Let us draw the attention of dear readers, first of all, to the fact that from a legal point of view, the termination (termination) of an employment contract in relation to a particular employee seems to be no less, and perhaps even more significant, an episode than the conclusion of an employment contract with him. This is indicated, in particular, by the strict regulation of the procedure for terminating an employment contract, now recorded in Art. 84.1 Labor Code of the Russian Federation. In connection with the last remark, it seems appropriate to first consider the grounds for termination of an employment contract. Among the general grounds, Article 77 of the Labor Code of the Russian Federation, in particular, includes:
– agreement of the parties;
– expiration of the employment contract;
– termination of an employment contract at the initiative of the employee;
– termination of an employment contract at the initiative of the employer;
– transfer of an employee at his request (with his consent) to work for another employer or transfer to an elective job (position);
– the employee’s refusal to continue working in connection with a change in the owner of the enterprise’s property, a change in his jurisdiction (subordination) or reorganization;
– the employee’s refusal to continue working due to a change in the previously determined terms of the employment contract;
– the employee’s refusal to transfer to another job due to health conditions in accordance with a medical report;
– the employee’s refusal to transfer due to the employer’s relocation to another location;
– circumstances beyond the control of the parties (so-called force majeure or force majeure);
– violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation (another federal law) - if such a violation excludes the possibility of the employee continuing the work (labor function) assigned to him in accordance with the employment contract;
– other grounds provided for by the Labor Code of the Russian Federation (other federal laws).
Let us note that in each of the listed cases of termination of an employment contract, the decision made by the employer must not only be impeccable from a legal point of view, but also be appropriately documented, i.e. recorded in certain documents.
It is proposed to begin the study of the grounds for termination of an employment contract with situations qualified by Article 77 of the Labor Code of the Russian Federation as “other grounds.” The need for this is dictated by purely practical considerations, since - for obvious reasons - the so-called. “Other” bases in most available sources are covered in a differentiated, scattered manner.
In this regard, we will focus first of all on the grounds that presuppose the termination of an employment contract and are not recorded in the previously mentioned article. These include, in particular:
– termination of an employment contract containing a probationary clause due to the fact that the employee was recognized as having failed the test or considered the work (labor function) assigned to him in accordance with the employment contract to be unsuitable and contacted the employer with a corresponding written statement;
– termination of an employment contract with certain categories of employees (for example, from among the management staff, teaching staff, etc.) on the grounds provided for by the employment contract, the Labor Code of the Russian Federation, other federal laws or local acts of the enterprise;
– termination of an employment contract with part-time employees upon the occurrence of circumstances that provide the employer with additional grounds for terminating the employment contract with such employees;
– termination of an employment contract with other categories of employees, if such contracts contain the appropriate conditions and the inclusion of such conditions in the contracts does not contradict the Labor Code of the Russian Federation (provided for by the Labor Code of the Russian Federation) - for example, employees working for employers - individuals, employees of religious organizations, employees of representative offices Russian Federation abroad, etc.
Termination of an employment contract containing a probationary clause for an employee
The procedure for terminating an employment contract containing a probationary clause due to the fact that the employee was found to have failed the test or considered the work (labor function) assigned to him in accordance with the employment contract to be unsuitable and contacted the employer with a corresponding written statement is determined by Article 71 Labor Code of the Russian Federation. Since we have previously considered issues related to the inclusion in the content of an employment contract of a condition on testing an employee, we will now dwell only on the general scheme of interaction between the employee and the employer in connection with the occurrence of a corresponding situation and the procedure for documenting it.
Let us clarify, first of all, that the employer should make a decision to terminate an employment contract with an employee recognized as having failed the test on the basis of the relevant documents. Otherwise, the employer risks being involved in a lawsuit if, after dismissal, the employee considers the grounds that served as the reason for terminating the employment contract with him to be insufficient.
Most often, facts indicating that the employee did not pass the test are recorded in the corresponding act. The employee may be familiarized with the contents of such an act (against signature) before the employer sends him a warning about termination of the employment contract or simultaneously with the delivery of the corresponding warning.
A warning about termination of the employment contract must be given to the employee no later than three days before the expected date of his dismissal (see Article 71 of the Labor Code of the Russian Federation). Here is an example of this document:
(Indicate the name of the position in the dat. case)
AND ABOUT. Surname
Warning
Dear First Name and Patronymic!
In accordance with Art. 71 of the Labor Code of the Russian Federation, we warn you that the employment contract concluded with you is subject to early termination due to the fact that you were found to have failed the test provided for by the employment contract. The date of your dismissal is 00 month 0000.
Thank you for your work. You will be additionally informed by your immediate supervisor about the procedure for settlement with the company.
We wish you all the best.
On behalf of the head of the enterprise,
(name of the person's position,
signatory of the document) personal signature of I.O. Surname
AWARE OF
Job title personal signature I.O. Surname
(indicated by the employee by hand)
If the employee refuses to sign, the employer draws up another act, which appropriately records the fact of the employee’s refusal to sign.
It might look like this:
00 month 0000 (name of locality)
about the employee’s refusal to receive a warning
(from receiving a warning) about upcoming dismissal
This act is drawn up in that the employee (name of the structural unit) of the enterprise I.O. Surname refused to sign for receipt of a warning about the upcoming dismissal from receiving a warning about the upcoming dismissal (cross out what is unnecessary) due to the fact that, on the basis of the act dated 00.00.0000 No. 000, he was recognized as having failed the test stipulated by the employment contract concluded with him dated 00.00.0000 No. 000.
Appendix: warning from 00.00.0000 No. 000.
The act was drawn up:
(Job title
direct
manager) personal signature of I.O. Surname
The fact of refusal of employee I.O. I confirm the name from the receipt (receipt):
(Job title
(Job title
authorized person) personal signature of I.O. Surname
The general procedure for documenting dismissal is regulated in accordance with Article 84.1 of the Labor Code of the Russian Federation. Based on documents ensuring the legality of the dismissal of an employee, the employer issues an order (instruction) regarding dismissal.
Based on the order, the corresponding entries are made in the employee’s personal card (form No. T-2 (T-2GS (MS)), his personal account (form No. T-54 (T-54a)), as well as the employee’s work book. In addition , the fact of settlement between the enterprise and the employee is recorded in the settlement note upon termination of the employment contract (Form No. T-61).
It must be remembered that the day of termination of the employment contract (dismissal) in all cases is the employee’s last day of work. On the day of termination of the employment contract, the employer is obliged to issue the employee a work book and make payments to him in the manner prescribed by Article 140 of the Labor Code of the Labor Code.
Upon a written application from the employee, submitted (taking into account the specifics of the situation under consideration) no later than three working days before the expected date of dismissal, the employer is obliged to issue the employee on the day of dismissal, along with a properly executed work book, and copies of work-related documents - for example, a copy of the order (instruction) on dismissal. An entry in the work book about the basis and reason for termination of the employment contract must be made in strict accordance with the wording provided by law. The issuance of work-related documents is free of charge.
Let us briefly dwell on the procedure for terminating an employment contract containing a probationary clause at the initiative of the employee.
Let us remind you that, according to Article 71 of the Labor Code of the Russian Federation, an employee has the right to contact the employer with an appropriate written statement if, before the expiration of the probationary period, he considers that the work assigned in accordance with the employment contract (labor function) is not suitable for him - for example, does not satisfy his level wages.
A written application requesting early termination of the employment contract must be submitted by the employee no later than three working days before the expected date of dismissal. Based on the considered application, the employer issues an order (instruction) to dismiss the employee with the execution of the above documents.
Let us note in conclusion that compliance with the warning period (submitting an application) of the intention to terminate the employment contract early on the grounds stated above is equally mandatory for both the employer and the employee. In case of violation of this period, the employee may be recognized as having passed the test and subsequent termination of the employment contract is allowed only on a general basis.
Termination of an employment contract
The procedure for terminating an employment contract with certain categories of employees on the grounds provided for by the employment contract, the Labor Code of the Russian Federation, other federal laws or local acts of the enterprise is determined by the relevant articles of the Code. These categories include, in particular:
– employees from among the management team;
- teaching staff.
Thus, Article 278 of the Labor Code of the Russian Federation specifies the following as additional grounds for terminating an employment contract with an employee - the head of an enterprise:
– removal of an employee from the position of head of the debtor enterprise in accordance with insolvency (bankruptcy) legislation;
– making a decision on early termination of an employment contract by an authorized body of a legal entity, the owner of the enterprise’s property or a person (body) authorized by the owner;
– other grounds provided for in the employment contract.
Circumstances considered by the employer as additional grounds for early termination of an employment contract with an employee from among the management team of the enterprise must be recorded in the relevant documents (acts, protocols, decisions, etc.) and, if required, brought to the attention of the employee subject to dismissal, against signature. Based on these documents, the employer makes a decision - usually in the form of an order or other similar document - to terminate the employment contract in relation to the employee.
Let us also note that the employee - the head of the enterprise, for his part, has the right, on the basis of Article 280 of the Labor Code of the Russian Federation, to proactively terminate the contract with the employer (represented by the owner of the property of the enterprise or his authorized representative). To do this, the employee must contact the employer with a corresponding written application no later than a month before the expected date of dismissal.
Based on the consideration of the application, the employer issues an order to dismiss the employee with the execution of the documents listed above. Upon dismissal, the employee must be provided with guarantees and compensation provided for by the Labor Code of the Russian Federation, regulations, local acts of the enterprise and the employment contract.
In turn, Article 336 of the Labor Code of the Russian Federation specifies the following as additional grounds for terminating an employment contract with a teaching employee:
– repeated gross violation by an employee of the charter of an educational institution within one year;
– the employee’s use, including one-time use, of educational methods associated with physical and (or) mental violence against the student’s personality;
– the employee reaches the age limit for filling the corresponding position (Article 332 of the Labor Code of the Russian Federation);
– failure to be elected through a competition to the position of a scientific and pedagogical worker or the expiration of the period for election through a competition (part seven of Article 332 of the Labor Code of the Russian Federation).
The last two reasons require, in our opinion, additional comment.
The fact is that, in accordance with the new edition of Article 332 of the Labor Code of the Russian Federation, in state and municipal higher educational institutions, the positions of rector, as well as vice-rectors and heads of branches (institutes) are subject to replacement by persons under the age of 65, regardless of the time of conclusion of employment contracts. Upon reaching the specified age, persons occupying the listed positions are generally subject to transfer to other positions corresponding to their qualifications. However, such a transfer is permitted only with the written consent of a person who has reached the age of 65 years. In the absence of such consent, the employee, as noted above, is subject to dismissal in accordance with paragraph 3 of Article 336.
At the same time, we emphasize that the term of office of rector for persons who have reached the age of 65 can be extended (until they reach the age of 70) by the founder of a state or municipal higher education institution upon the proposal of the relevant academic council. The term of office of vice-rector (head of a branch (institute)) for persons who have reached the age of 65 can also be extended (until they reach the age of 70) by the rector of a state or municipal higher education institution upon the proposal of the relevant academic council.
Further. The conclusion of an employment contract to fill the position of a scientific and pedagogical worker in a higher educational institution (as well as a transfer to the position of a scientific and pedagogical worker) must be preceded by the election of the appropriate person through a competition to fill the corresponding position.
If an employee holding the position of scientific and pedagogical worker under an employment contract concluded for an indefinite period, based on the results of the competition provided for in part three of Article 332, was not elected to the position or did not express a desire to participate in the said competition, then the employment contract with him is subject to termination in in accordance with paragraph 4 of Article 336 of the Labor Code of the Russian Federation. Depending on the situation, the basis for termination of the employment contract is either failure to be elected through a competition or the expiration of the period for election through a competition.
Termination of an employment contract with part-time employees
The procedure for terminating an employment contract with part-time employees upon the occurrence of circumstances that provide the employer with additional grounds for terminating the employment contract with such employees is determined by Article 288 of the Labor Code of the Russian Federation. In accordance with this article, as an additional basis for terminating an employment contract concluded for an indefinite period with a part-time employee, one should consider hiring an employee for whom the latter will be the main one.
The employer must notify the employee in writing of the intention to terminate the employment contract with the part-time worker on this basis at least two weeks before the termination of the employment contract. If such a situation arises, the employer has the right - but is not obliged - to offer the part-time employee another job available at the enterprise, which he can perform on a part-time basis. In the absence of such work, as well as if the employee refuses to change the nature of the work (labor function), the latter is subject to dismissal and subsequently continues his work activity only at his main place of work.
The employee’s refusal must be expressed in writing and considered by the employer. Based on the reviewed written application, the employer issues an order (instruction) to dismiss the employee with the execution of the documents listed above.
A part-time employee may, in addition, be asked to perform work previously performed as part-time work as his main job. If the employee agrees, such work may be provided to him on the basis of a new employment contract or a corresponding agreement to change the terms of the employment contract.
If the employee refuses the offer to perform the same work as his main job, or if the employer does not have the opportunity to offer the employee such work, the latter is subject to dismissal. Based on the reviewed written application, the employer issues an order (instruction) to dismiss the employee with the execution of the documents listed above.
Termination of an employment contract with other categories of employees
The procedure for terminating an employment contract with other categories of employees, if such contracts contain the appropriate conditions and the inclusion of such conditions in the contracts does not contradict (provide for) the Labor Code of the Russian Federation, is determined by the relevant articles of the Code. These categories include, in particular:
– employees from among those employed by employers - individuals;
– employees of religious organizations;
– employees of Russian missions abroad.
Thus, in accordance with Article 307 of the Labor Code of the Russian Federation, termination of an employment contract concluded with employees working for employers - individuals, is allowed not only on general grounds, but also on the grounds specified as such in the content of the employment contract. At the same time, the notice period for dismissal, as well as the cases and amounts of severance pay and other compensation payments paid to employees upon termination of an employment contract, are determined by the employment contract.
It is advisable to terminate an employment contract on additional grounds provided for by the employment contract concluded with the employee using documents certifying the occurrence of the relevant circumstances. If necessary, the fact of the occurrence of such circumstances can be certified with the involvement of third parties by the parties to the labor relationship.
A similar procedure is established by Article 347 of the Labor Code of the Russian Federation in relation to employees of religious organizations. Among the grounds included in employment contracts concluded with employees of religious organizations as additional ones, as a rule, the following are indicated:
– disrespect for religious shrines;
– violation of the internal regulations of the church;
– violation of the charter of a religious organization;
– careless attitude towards the property of a religious organization;
– failure to comply with specific provisions of the internal regulations of a religious organization;
– rudeness shown by an employee towards parishioners.
Termination of an employment contract with employees of representative offices of the Russian Federation abroad in accordance with Article 341 of the Labor Code of the Russian Federation is permitted in the following cases:
– due to the expiration of the period established when sending an employee by the relevant federal executive body (state institution) of the Russian Federation or concluding a fixed-term employment contract with him;
– in the event of an emergency in the host country;
– when the employee is declared persona non grata or receives a notification from the competent authorities of the host country about his inadmissibility in the host country;
– when the established quota of diplomatic or technical employees of the relevant mission is reduced;
– if the employee fails to comply with the customs and laws of the host country, as well as generally accepted standards of behavior and morality;
– if the employee fails to fulfill the obligations assumed upon concluding the employment contract to ensure that his family members comply with the laws of the host country, generally accepted standards of behavior and morality, as well as the rules of residence in force in the territory of the relevant representative office;
– in case of a single gross violation of labor duties, as well as the regime requirements with which the employee was familiarized with when concluding the employment contract;
– in case of temporary disability of an employee lasting more than two months or if he has a disease that prevents him from working abroad in accordance with the list of diseases approved in the manner established by the Government of the Russian Federation.
It is necessary to clarify that if work is terminated for one of the reasons listed above (except for the first), the dismissal of employees on staff of the relevant bodies (institutions) is carried out in the manner prescribed by the Labor Code of the Russian Federation and other federal laws. Dismissal of employees who are not on staff is carried out on the basis provided for in paragraph 2 of part one of Article 77 of the Labor Code of the Russian Federation (expiration of the employment contract).
Termination of an employment contract by agreement between the employee and the employer
The procedure for terminating an employment contract by agreement between the employee and the employer is determined by Article 78 of the Labor Code of the Russian Federation. From the content of the article, however, it only follows that the employment contract can be terminated by agreement between the employee and the employer at any time, but the procedure for the actions of the parties to the labor relationship is not regulated in any way. In order to clarify this issue, let us first turn to the relevant provisions of civil law that establish the general procedure for terminating contracts. As is known, in accordance with Article 452 of the Civil Code of the Russian Federation, termination of a contract can be carried out by agreement of the parties.
Such an agreement, we emphasize, must be concluded in the same form as the previously concluded agreement, unless otherwise provided by law, other regulations or the agreement itself. Consequently, in order to terminate an employment contract - taking into account the requirements for its form established by the relevant provisions of the Labor Code of the Russian Federation - the employee and the employer must enter into an agreement between themselves on the termination of the employment contract (more precisely, on its early termination).
It is necessary to pay attention to the fact that Article 78 of the Labor Code of the Russian Federation does not make any distinction regarding the procedure for terminating a fixed-term or open-ended employment contract. At the same time, it should be remembered that a fixed-term employment contract remains in force only for the period specified in the document (but not more than 5 years). In this case, the employer is obliged to notify the employee in writing of the termination of the employment contract due to its expiration.
Failure to comply with this requirement may entail the “re-qualification” of the employment contract into an open-ended one with all the ensuing consequences. For his part, the employee has the right to terminate a fixed-term employment contract early by notifying the employer in writing no later than 2 weeks before its expiration.
Thus, the parties (at the initiative of one of them) have the right to terminate a fixed-term employment contract at any time before the warning period, which, as we see, can be 3 days or 2 weeks. Let us return, however, to the consideration of the situation involving termination of the employment contract by agreement of the parties.
This situation is most easily resolved in the case of an open-ended employment contract, since the notice period for its early termination for any of the parties acting as the initiator of its early termination is the same and amounts to 2 weeks. Taking into account the above, the general procedure for the actions of the employee and the employer in case of early termination of an open-ended employment contract by agreement of the parties is as follows:
– one of the parties submits for consideration by the other party a written proposal for early termination of the employment contract by agreement between them (i.e. on the basis provided for in Article 78 of the Labor Code of the Russian Federation);
– the other party does not object to this proposal, and informs the initiating party about this in writing;
– after this, the parties agree on the period and, if necessary, other conditions for early termination of the employment contract and determine the date for concluding the corresponding agreement;
Note that in the situation considered, the timing of the parties’ decision on early termination of an open-ended employment contract does not play a special role. If the proposal of one of the parties for early termination of an open-ended employment contract is rejected by the other party (which is also advisable to do in writing), the employment contract remains in force until the occurrence of circumstances that make it possible to terminate it on other legal grounds. At the same time, an employee who has expressed a desire to terminate an open-ended employment contract early by agreement of the parties can “transform” his intention to quit in accordance with the grounds provided for in Article 80 of the Labor Code of the Russian Federation (dismissal at his own request), having warned the employer about this accordingly, and the latter (in generally) will have to agree with the employee’s wishes.
An employer who has offered an employee to terminate an open-ended employment contract early by agreement of the parties, if the employee refuses the offer made to him, has no choice but to maintain the employment relationship with the employee until the occurrence of circumstances that make it possible to terminate them on other legal grounds. In such a situation, the employer - if he is interested in early termination of an open-ended employment contract - sometimes can only wait for the employee to “change his mind” and agree to the proposal to terminate the contract by agreement of the parties (or direct all his efforts to create “unbearable conditions” for this employee " to continue working at the enterprise).
– one of the parties, before the expiration of the notice period for termination of the employment contract due to its expiration, submits for consideration by the other party a written proposal for early termination of the employment contract by agreement between them (i.e. on the basis provided for in Article 78 of the Labor Code of the Russian Federation );
– the other party does not object to this proposal, and informs the initiating party about this in writing, taking into account the deadline specified above;
- after this, the parties - again, taking into account the period specified above - agree on the period and, if necessary, other conditions for early termination of the employment contract and determine the date for concluding the corresponding agreement;
– from the moment the agreement is signed by the employee and the employer (or from the date specified in this agreement), the employment contract is considered terminated early on the basis provided for in Article 78 of the Labor Code of the Russian Federation.
The parties should take into account the relevant information when determining the terms for early termination of a fixed-term employment contract specified in the agreement. In general, such an agreement, in our opinion, should include information about the name of the document, its date and place of conclusion, its parties, as well as standard wording that, by agreement between the employer and the employee, the employment contract previously concluded between them is considered to be terminated early with such and such time, on the basis provided for in Article 78 of the Labor Code of the Russian Federation. The document details are:
– name of the organization (enterprise, institution) – author (developer) – of the document;
– name of the document type (AGREEMENT);
– document date;
– place of compilation or publication of the document – is indicated if determining the place of compilation (publication) is difficult due to the details;
– title to the text (...about early termination of the employment contract dated 00.00.0000 No. 00);
– text of the document;
– mark on the presence of an attachment – indicated if the document has an attachment(s);
– signature(s);
– document approval stamp – indicated if the document is subject to external approval, which, strictly speaking, is extremely unlikely and can only occur in relation to agreements on early termination of employment contracts with certain categories of employees, if such agreements were previously subject to external approval;
– document approval visas – indicated if the document is subject to internal approval – for example, with the legal service of the enterprise, the employee’s immediate supervisor, etc.;
– seal impression;
– a mark on certification of a copy of a document – indicated only on copies of documents;
– note about the performer;
– identifier of the electronic copy of the document.
As you can see, the agreement details do not include the document registration number. In our opinion, there is no need to use this detail, since the agreement on early termination of the employment contract is concluded once and its date is sufficient for proper identification of the document.
An agreement on early termination of an employment contract may look like this:
Company logo
Business name
AGREEMENT
on early termination of an employment contract
from 00.00.0000 No. 000
(place of publication)
The Employer (Employer's representative) represented by ... (last name, first name, patronymic), acting on the basis of ... (specify specifically) and the Employee represented by ... (last name, first name, patronymic), guided by Article 78 of the Labor Code of the Russian Federation and the employment contract dated 00.00.0000, have entered into this agreement, in accordance with which:
1. The employment contract dated 00.00.0000 No. 000 is terminated from (the date of signing of this agreement or another date specified in the agreement).
2. ___________________________________________________________________
___________________________________________________________________________
(further, other conditions may be specified that do not contradict the law, regulations, local acts of the enterprise, the employment contract and agreements previously reached between the parties to the agreement - for example, on the procedure for canceling the agreement before it enters into legal force, etc.).
3. This agreement is concluded in two copies, having equal force and intended for each of the parties to the agreement.
EMPLOYER: EMPLOYEE:
signature signature
____________________________ ____________________________
signature decryption signature decryption
____________________________ ____________________________
date date
Let us note in conclusion that, if necessary, the agreement signed by the parties on the early termination of the employment contract can be canceled if the parties to the employment relationship have entered into a separate written agreement in this regard and it - in the general case - entered into legal force before the entry into force of the agreement on the early termination of the employment contract. agreement. As in previously considered cases, the fact of dismissal of an employee is certified by an appropriate order. Based on the order to dismiss the employee, the employer prepares other necessary documents.
Termination of a fixed-term employment contract
The procedure for terminating an employment contract due to its expiration is determined by Article 79 of the Labor Code of the Russian Federation. Let us draw the attention of dear readers only to some fundamental points that characterize the procedure for terminating a fixed-term employment contract due to its expiration and reflecting its specifics.
A mandatory condition, the fulfillment of which precedes the termination of a fixed-term employment contract due to its expiration, is a written warning to the employee of the upcoming dismissal. Such a warning must be sent by the employer no later than 3 days before the expiration date of the employment contract.
Let us clarify that the fact that the warning was brought to the attention of the employee must be properly documented. For this purpose, the employee should be familiarized with the contents of the document for signature, and if the employee refuses to sign, an appropriate act should be drawn up about this. Failure to comply with this rule may result in a labor dispute.
The greatest danger in this sense is represented by the so-called. unusual situations that arise on the eve of the expiration date of a fixed-term employment contract. For example, one of these situations may arise in connection with the employer’s intention to terminate a fixed-term employment contract with a seasonal worker, since the actual performance of the seasonal work provided for by the contract by the employee was completed earlier than the date determined as the end date of the season, in accordance with the List of Seasonal Work, approved by the Government of the Russian Federation. Meanwhile, the basis for establishing the date of termination of a fixed-term employment contract concluded with a seasonal worker is precisely the terms provided for in the relevant lists.
Otherwise, the issue of termination of a fixed-term employment contract concluded with an employee to perform a clearly defined job, the completion of which cannot be determined by a specific date, is resolved. In this case, the basis for termination of the employment contract will be the act of acceptance of the work performed, and the expiration date of the fixed-term employment contract in this case will be the day following the date of issue of the act.
The employer issues a corresponding order regarding the dismissal of an employee due to the expiration of a fixed-term employment contract. Based on the order to dismiss the employee, the employer prepares other necessary documents.
Termination of an employment contract at the initiative of the employee
The procedure for terminating an employment contract at the initiative of an employee is determined by Article 80 of the Labor Code of the Russian Federation. This article gives the employee the right to early termination of the employment contract at his own request, without making this desire dependent on the motives that guide the employee in this case - they can, in principle, be anything.
Early termination of an employment contract at the initiative of the employee is preceded, as already noted, by a written warning to the employer, which must be sent to the latter no later than 2 weeks before the expected date of dismissal of the employee. It is noteworthy that such an application must be submitted by the employee, regardless of whether he is “on duty” or, say, on sick leave.
Accordingly, when submitting an application to return to work (for example, after a vacation), the employee must proceed from the fact that, in general, the employment contract with him will be terminated on the 15th day after submitting the application. Upon expiration of the notice period for dismissal, the employee has the right to stop working.
However, by agreement between the employee and the employer, the employment contract can be terminated before the expiration of the notice period for dismissal, i.e. earlier than 14 days. To do this, the employee must indicate in a written statement the desired date of dismissal.
For its part, the employer may satisfy this request of the employee, or may refuse it. However, the employer is obliged to terminate the employment contract within the period specified by the employee in the application if:
– filing a written application for early termination of an employment contract at the initiative of the employee due to the impossibility of continuing his work (for example, in connection with enrollment in an educational institution, retirement and other similar reasons);
– it is established that the employer violated laws and other regulations containing labor law norms, the terms of a collective agreement, agreement or employment contract.
On the other hand, Article 80 of the Labor Code of the Russian Federation gives the employee the right, before the expiration of the notice period for dismissal, to withdraw a previously submitted written application at any time. The occurrence of such a situation, which in practice, by the way, is by no means rare, suggests two options for its resolution:
1. At the time the employee recalled the written application for early termination of the employment contract, another employee had not been invited in writing to the position (workplace) he was vacating.
In this case, the employer does not have the right to refuse to continue working for the employee who has “come to his senses” under the conditions provided for by the “almost” terminated employment contract. Thus, if after the expiration of the notice period for dismissal, the employment contract was not terminated and the employee no longer insists on dismissal, continuing to perform the work assigned to him in accordance with the employment contract (labor function), then the employment contract continues.
2. At the time the employee recalled a written application for early termination of the employment contract to the position (workplace) he was vacating, the employer invited in writing another employee, who - we emphasize this - in accordance with the Labor Code of the Russian Federation and other federal laws cannot be denied employment employment contract. Let's illustrate this with the following example:
Employee Lukin L.L. submitted his resignation of his own free will. A few days after this, employee N.N. Novikov was invited to his position in writing. At the same time, for Lukin L.L. the work he performed was the main one, and Novikov N.N. invited to work as a part-time worker.
Three days before the end of the warning period, Lukin L.L. submitted an application to continue working in the same capacity. In this situation, the employer has the right:
b) propose to Novikov N.N. performing the work as the main one and, if the latter agrees, expressed in the form of a written statement, notify Lukin L.L. that an employee for whom this work will also be the main one has been invited in writing to take his place. However, in case of refusal of Novikov N.N. from performing work as his main job, he, in turn, may be denied this work, since Lukin L.L. is still ready to perform it as the main one (as was provided for in the previously concluded employment contract with him);
c) in case of consent of Novikov N.N. to perform work previously performed by L.L. Lukin, as the main one, the employer may (but is not obligated) to offer L.L. Lukin. other work available at the enterprise. If Lukin L.L. gives consent, he will be accepted into the enterprise in a new capacity, having previously terminated the employment contract with him on the basis provided for in Article 80 of the Labor Code of the Russian Federation, and then concluded a new employment contract with the employee.
The employer issues a corresponding order regarding the dismissal of an employee on the grounds provided for in Article 80 of the Labor Code of the Russian Federation. Based on the order to dismiss the employee, other necessary documents are drawn up.
Termination of an employment contract at the initiative of the employer
The procedure for terminating an employment contract at the initiative of the employer is determined by Article 81 of the Labor Code of the Russian Federation. The fundamental difference between this article and the one discussed earlier is that in all the cases listed below, early termination of an employment contract is carried out at the initiative of the employer, although the motives for the latter’s actions can be very different.
Meanwhile, as practice shows, the basis for early termination of most employment contracts is precisely the paragraphs (subparagraphs) of Article 81 of the Labor Code of the Russian Federation.
We emphasize that the dismissal of an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary incapacity for work and while on vacation is not allowed. The main situations related to the dismissal of an employee at the initiative of the employer are discussed below.
Early termination of an employment contract due to the liquidation of an enterprise
Early termination of an employment contract in connection with the liquidation of an enterprise (termination of activities by an employer - an individual entrepreneur) (clause 1 of part one of Article 81 of the Labor Code of the Russian Federation) upon the occurrence of appropriate circumstances is carried out in relation to all employees. This, in principle, distinguishes the named basis from others provided for in Article 81 of the Labor Code of the Russian Federation.
Liquidation of an enterprise is nothing more than its termination (termination of its activities) as a legal entity without transfer of powers (rights and obligations of the enterprise) in the order of succession to any other persons, undertaken in the manner prescribed by law, by decision of the body authorized for this purpose in accordance with the constituent documents, or by court decision.
The liquidation of an enterprise is considered completed, and the enterprise ceases to exist, from the moment the state registration authority makes the corresponding entry in the unified state register of legal entities.
It must be emphasized that the dismissal of employees on this basis, on the one hand, is carried out regardless of whether these employees are at work or are temporarily absent for valid reasons (due to illness, vacation, etc.), and, on the other hand, , provides for the provision of appropriate guarantees and compensation to those dismissed.
The basis for initiating the procedure for dismissing employees on the basis provided for in paragraph 1 of part one of Article 81 of the Labor Code of the Russian Federation is the decision to liquidate the enterprise, adopted in the manner prescribed by law by authorized bodies (persons). As a rule, such a decision is made either by the founders (participants) of the enterprise (a body of the enterprise with the appropriate powers) or by the court.
Employees must be warned by the employer about the upcoming liquidation in strict accordance with the requirements of Article 180 of the Labor Code of the Russian Federation. Such a warning should:
– be personal in nature;
- be brought to the attention of each employee in writing and against signature - no later than 2 months before the expected date of dismissal.
At the same time, with the written consent of the employee, his dismissal before the expiration of the specified period is allowed with the simultaneous payment of additional compensation in the amount of the employee’s average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal. However, employees should be aware that they have the right to contact their employer with relevant statements.
Obviously, the employer should inform employees about this in advance. Here is an example of an employee’s written statement of consent to the without-notification procedure for dismissal for cause.
To the head
(indicate the name of the position in the dat. case)
closed joint stock company "Name"
AND ABOUT. Surname
from (indicate the name of the position, profession,
specialties in childbirth case)
AND ABOUT. Last name (employee)
STATEMENT
I agree with the no-notice procedure for dismissal in connection with the upcoming liquidation of the enterprise under the conditions provided for in Article 180 of the Labor Code of the Russian Federation. The contents of this article have been explained to me.
Personal signature
Thus, the employer has the right to dismiss earlier other employees who have stated in writing their consent to the no-notice dismissal procedure. However, it should be borne in mind that before the relevant order is issued, an employee who has previously agreed to a no-notice dismissal procedure has the right to withdraw his application by notifying the employer in writing.
Employees who have not submitted the appropriate written statements must be sent warnings by the employer about their upcoming dismissal due to the liquidation of the enterprise. If the employee refuses to sign (refuses to receive notification), a report is drawn up to this effect.
It is necessary to clarify that in relation to certain categories of employees, the notice period for upcoming dismissal due to the liquidation of the enterprise may be reduced. For example, in accordance with Article 292 of the Labor Code of the Russian Federation, such a warning must be sent to an employee who has entered into an employment contract for a period of up to two months, no later than three days before the expected date of dismissal, and for seasonal workers, this period, in accordance with Article 296 of the Labor Code of the Russian Federation, must be at least seven days. The dismissal of an employee in connection with the liquidation of an enterprise, as in the previously considered cases, is formalized by an order (instruction) on the termination of the employment contract, the contents of which are announced to the dismissed person against signature. Based on the order (instruction), other necessary documents are drawn up.
Upon termination of employment contracts in connection with the liquidation of an enterprise, dismissed employees in accordance with Article 178 of the Labor Code of the Russian Federation are paid severance pay in the amount of average monthly earnings. In addition, employees retain their average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).
At the same time, employees who have entered into an employment contract for a period of up to two months are subject to dismissal without payment of severance pay, unless otherwise provided by the relevant federal laws, a collective agreement or an employment contract previously concluded with this employee. For seasonal workers, such benefits are paid in the amount of two weeks' average earnings.
Upon termination of the activities of a branch, representative office (other separate structural unit) of an enterprise located in another locality, the manager organizes the termination of employment contracts with employees of the relevant structural units according to the rules provided for cases of liquidation of the enterprise. Relevant orders are also issued regarding the dismissal of these employees.
Early termination of an employment contract due to reduction in headcount (staff)
Let us next turn to the consideration of the procedure for early termination of an employment contract in connection with a reduction in the number (staff) of employees of an enterprise (individual entrepreneur) (clause 2 of part one of Article 81 of the Labor Code of the Russian Federation). In this case, the dismissal procedure is initiated by the employer in relation to employees who are “subject to” reduction.
Dismissal of an employee due to downsizing implies a reduction in the number of units in the relevant specialty (position, profession), for example, due to a decrease in the volume of work performed and the wage fund. When reducing numbers, first the vacant units in a given specialty are reduced, and then, if necessary, those occupied by “living” workers. In turn, the dismissal of an employee due to staff reduction implies the liquidation of the position he occupied. It is significant that the total number of employees in this case may not decrease, since new units may be introduced into the staffing table at the same time.
In general, the right to determine the number and staff is given to the employer. For this purpose, from time to time he may carry out certain organizational measures aimed at changing (including reducing) the number or staff of employees.
Depending on the reasons and goals, the reduction in the number or staff of an enterprise can be more or less significant. The decision to reduce the number or staff (to carry out relevant measures) comes into force from the moment the head of the enterprise issues an order to put into effect a new staffing table (with the obligatory indication of the date of its implementation).
It must be emphasized that the dismissal of an employee due to a reduction in numbers or staff is considered to be properly justified if the enterprise, for one reason or another, actually needs to reduce a particular number of units for the corresponding position (specialty, profession). At the same time, as follows from part three of Article 81 of the Labor Code of the Russian Federation, before dismissal on the grounds in question, the employee must be offered in writing another job available to the employer, which the employee can perform taking into account his state of health and qualifications.
Among the circumstances that make it, in principle, possible from a legal point of view, the dismissal of an employee due to a reduction in the number or staff of the enterprise, include the following:
1. The employee does not have preferential rights to retain his job (position) in the event of a layoff.
2. The employer does not have other positions (jobs) that, in accordance with the law, can be offered to the employee for subsequent transfer (with the latter’s written consent to the transfer).
3. The employee’s refusal to give written consent to a transfer to another job offered to him by the employer (taking into account the state of health and qualifications of the employee).
4. Warning the employee about the upcoming dismissal in the manner prescribed by law.
If the employee is a member of the trade union organization of the enterprise, then the decision to dismiss the employee on the basis provided for in paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation is made by the employer taking into account the reasoned opinion of the relevant trade union body in accordance with Article 373 of the Labor Code of the Russian Federation. Such an opinion can be brought to the attention of the employer in the form of a properly executed extract from the minutes of the meeting of the trade union committee. This document might look like this:
(Business name
in accordance with the constituent documents)
PROTOCOL
00.00.0000 Ensk No. 0
trade union committee meetings
Chairman – I.O. Surname.
Secretary – I.O. Surname.
Those present were... people (list attached).
Agenda:
1. Identification of candidates for dismissal from among the enterprise’s employees - members of the trade union, whose positions (jobs) are subject to reduction in connection with the introduction of the new staffing table.
2. Miscellaneous.
1. On the issue of identifying candidates for dismissal from among the employees of the enterprise - members of the trade union, whose positions (jobs) are subject to reduction in connection with the introduction of the new staffing table
Information from I.O. Last name about changes in the staffing table and the list of positions (jobs) subject to reduction (text attached).
SPEAKERS:
1. I.O. Last name – announced a list of employees occupying positions (jobs) subject to reduction.
2. I.O. Last name - announced the preferential rights granted by the Labor Code of the Russian Federation to employees (specify specifically) in connection with a reduction in the number or staff of the enterprise, to remain at work.
3. I.O. Last name - proposed to discuss candidates for dismissal taking into account the circumstances outlined in the previous speech. Those present at the meeting took part in a personal discussion of the following candidates (please specify). As a result of the discussion, it was established:
AND ABOUT. Last name (candidate No. 1) – among employees occupying positions subject to reduction, has the highest labor productivity indicators in the current year, which is confirmed by the data of the report signed by his immediate superior (attached).
AND ABOUT. Last name (candidate No. 2) – among the employees occupying positions subject to reduction, has the highest qualifications, which is confirmed by certification data (certification sheet attached).
AND ABOUT. Last name (candidate No. 3) – has two dependents in the family (certificate of family composition is attached).
AND ABOUT. Last name (candidate No. 4) – is the only one in the family who has independent income (an extract from the employee’s personal file is attached).
AND ABOUT. Last name (candidate No. 5) – has an occupational disease acquired during work at the enterprise (certificate from a medical institution, an extract from the medical history is attached).
AND ABOUT. Last name (candidate No. 6) – is a disabled person from combat operations in the Chechen Republic (a notarized certificate of disability is attached).
AND ABOUT. Last name (candidate No. 7) - improves his qualifications without interruption from work (studies at the evening department of an educational institution of vocational education - specify specifically) in the specialty ... corresponding to the area of activity of the enterprise (extract from the order of enrollment in the educational institution and a certificate of absence of academic debt attached).
AND ABOUT. Last name (candidate no. 8) – ...
DECIDED:
Reason: circumstances identified in relation to the listed employees during the discussion and related to their lack of preferential rights to remain at work.
2. Entrust the preparation of the list to the secretary of the meeting, I.O. Surname.
3. Bring the completed list to the attention of the head of the enterprise by 00.00.0000.
4. Inform the employees included in the list about the results of the meeting in advance.
2. On the issue of... (in accordance with paragraph 2 of the meeting agenda)
Presiding Personal signature I.O. Surname
Secretary Personal signature I.O. Surname
When making a decision to dismiss an employee, the employer must, in addition, be guided by Article 179 of the Labor Code of the Russian Federation, which establishes preferential rights in relation to certain categories of employees to keep them at work in the event of a reduction in numbers or staff.
As follows from this article, when reducing the number or staff, the priority right to remain at work is given to “workers with higher labor productivity and qualifications.” If there are documented equal indicators of labor productivity and equal qualifications of employees considered as candidates for dismissal due to reduction in number or staff, the following have a priority right to continue working:
- family workers - if there are two or more disabled family members in their families who are fully supported by the employee or receive assistance from him, which is a permanent and main source of livelihood for them;
– family workers in whose family there are no other workers with independent earnings;
– employees who received a work injury (occupational disease) while working for this employer;
– workers who were disabled during the Great Patriotic War (combat actions to defend the Fatherland);
– employees who improve their qualifications in the area determined by the employer, without interruption from work;
– employees who are spouses of military personnel (in government organizations, military units);
– employees from among citizens previously discharged from military service, as well as members of their families at work, where they entered for the first time after discharge from military service;
– workers – single mothers of military personnel undergoing conscription;
– workers from among persons who have received or have suffered radiation sickness and other diseases associated with radiation exposure (exposed to radiation exposure).
A collective agreement (agreement) may also determine other categories of workers who, when reducing numbers or staff, have a preferential right to remain at work with equal indicators of labor productivity and equal qualifications. The employer's further course of action involves:
1. Determination (taking into account the above) of workers to be transferred to vacant positions (with their consent and if the enterprise has vacancies corresponding to their health status and skill level).
2. Bringing to the attention of these employees lists of vacant positions (personally, in writing, against signature and taking into account the date of the expected dismissal of an employee in case of disagreement with the relocation).
3. Consideration of written statements from employees regarding consent (disagreement) with transfer to other positions.
4. Issuing orders (instructions) on the transfer of employees who have expressed their consent to other positions, as well as orders (instructions) on the dismissal of those employees who, for one reason or another, cannot be transferred to other positions that are not subject to reduction.
In accordance with Article 178 of the Labor Code of the Russian Federation, in case of early termination of an employment contract due to a reduction in the number (staff) of the enterprise, those dismissed are paid severance pay in the amount of average monthly earnings. For the period of employment, they retain their average earnings, but not more than two months from the date of dismissal (including severance pay) (see also the note at the end of the previous paragraph).
Early termination of an employment contract due to the employee’s incompatibility with the position held (work performed)
Let us move on to consider the procedure for early termination of an employment contract due to the employee’s inadequacy for the position held (work performed) due to insufficient qualifications confirmed by the results of certification (clause 3 of part one of Article 81 of the Labor Code of the Russian Federation).
Having received properly executed documents confirming the fact that the employee’s skill level does not correspond to the work assigned to him according to the concluded employment contract, the employer must offer the employee another job available to him, which the latter can perform taking into account his state of health and qualifications.
The documents used as justification must clearly indicate the discrepancy between the employee’s skill level and the work he performs. The absence of appropriate wording in the documents does not give the employer the right to dismiss the employee on the grounds in question.
In the absence of such work, as well as in the absence of the employee’s written consent to the transfer, the latter is subject to dismissal on the grounds provided for in paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation. The decision to dismiss employees who are members of a trade union organization on this basis must be made by the employer after considering the reasoned opinion of the relevant trade union body, as provided for in Article 373 of the Labor Code of the Russian Federation. For this purpose, the employer sends to the relevant trade union body a draft order (instruction) on the dismissal of the employee, as well as copies of the documents that are the basis for making this decision. For its part, the trade union body is obliged to consider this issue and communicate its reasoned opinion to the employer in writing within seven working days from the date of receipt of the draft order and copies of documents.
If the trade union body disagrees with the employer’s proposed decision, additional consultations may be held between them within three working days, the results of which must be documented in a protocol. The right to make the final decision after the expiration of the listed periods belongs to the employer.
The decision to dismiss on the grounds in question can be appealed by the employee (his authorized representative) to the relevant state labor inspectorate (GIT). The State Labor Inspectorate, within ten days from the date of receipt of the complaint (application), must consider the legality of the dismissal and, if it is declared illegal, sends the employer a binding order to reinstate the employee at work with payment for forced absence. Simultaneously with the consideration by the State Labor Inspectorate, the issue of the legality of dismissal can be appealed by the employee (his authorized representative) in court. In turn, the employer has the right to appeal the order of the State Labor Inspectorate to the court in compliance with the procedure established in this regard.
If the trade union agrees with the employer’s decision, as well as in cases where such consent is not required, the dismissal order (instruction) is issued by the employer after receiving a written refusal from the employee to transfer. Another basis may be documents confirming the absence of vacant positions at the enterprise to which the employee could be transferred. Based on the order (instruction) of dismissal, other necessary documents are drawn up.
Early termination of an employment contract due to a change in the owner of the company’s property
Early termination of an employment contract in connection with a change in the owner of the enterprise’s property is provided for in paragraph 4 of part one of Article 81 of the Labor Code of the Russian Federation. It must be emphasized that dismissal on this basis (at the initiative of the employer) is allowed only in relation to employees from among the managers, deputy managers and chief accountant of the enterprise.
Previously, we mentioned Article 75 of the Labor Code of the Russian Federation, according to which, when the owner of an enterprise’s property changes, the new owner has the right, no later than three months from the date his ownership rights arise, to terminate the employment contract with the head of the enterprise, his deputies and the chief accountant. At the same time, a change in the owner of the enterprise’s property does not give the new owner the right to terminate employment contracts in relation to other categories of employees of the enterprise.
Thus, if the new owner considers it necessary to terminate the employment contracts previously concluded with the head of the enterprise, his deputies and the chief accountant, then he should do this in compliance with the following requirements:
1. An employee subject to dismissal on the grounds provided for in paragraph 4 of part one of Article 81 of the Labor Code of the Russian Federation must be warned of the upcoming early termination of the employment contract no later than two weeks before the expected date of dismissal.
2. A notice of dismissal must be made in writing, be personal in nature and brought to the attention of the employee against signature.
3. The warning must be sent to the employee, taking into account the maximum length of time allotted to the new owner of the enterprise to make a decision on whether or not to fire previously hired employees of the categories mentioned above.
4. The decision on early termination of the employment contract comes into force regardless of whether the employee subject to dismissal agrees with this decision of the new owner of the enterprise or not.
5. Upon dismissal, an employee (former head of the enterprise, deputy head, chief accountant) is paid monetary compensation in the amount of at least three monthly average earnings (Article 181 of the Labor Code of the Russian Federation). At the same time, amounts of money should not be withheld for vacation days not worked by the dismissed person (Article 137 of the Labor Code of the Russian Federation).
The new owner may (but is not obligated) to offer employees subject to dismissal on the grounds in question another job available at the enterprise. Whether or not to agree with this proposal is up to the employee to decide, guided by personal motives. The employer (in this case, the new owner of the enterprise) issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction) of dismissal, other necessary documents are drawn up.
Let us note in conclusion that the employee, on his own initiative, can apply to the new owner of the property with a request for early termination of the employment contract. In this case, with the consent of the employer, the employment contract with the employee is also subject to early termination on the grounds provided for in paragraph 6 of part one of Article 77 of the Labor Code of the Russian Federation.
Other employees of the enterprise can take advantage of the same right, and not just those listed in paragraph 4 of part one of Article 81 of the Labor Code of the Russian Federation. However, we again emphasize that the latter situation is fundamentally different from that described within the framework of this paragraph, since the initiative for early termination of an employment contract on the basis provided for in paragraph 6 of part one of Article 77 of the Labor Code of the Russian Federation belongs to the employee, not the employer.
Early termination of an employment contract due to repeated failure by the employee to fulfill his job duties without good reason
Now let’s dwell on the early termination of an employment contract due to repeated failure by an employee to fulfill work duties without good reason (clause 5 of part one of Article 81 of the Labor Code of the Russian Federation), which is allowed only if the employee has a disciplinary sanction. In practice, the above means that an employee who is first noticed for failing to fulfill his job duties without good reason cannot be immediately dismissed by the employer, except in cases where such failure is associated with a gross violation of his job duties by the employee.
Relevant circumstances significant for ensuring the legality of early termination of an employment contract on the basis provided for in paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation must be documented. The following documents may be considered as relevant documents:
– a properly executed report on a previous case of failure by an employee to fulfill his job duties without good reason (preferably with a note indicating that the employee has familiarized himself with the contents of this document);
– a properly executed order (instruction) on disciplinary punishment of an employee with a note indicating that the employee is familiar with its contents;
– documents confirming that work duties were not fulfilled by the employee in the absence of valid reasons;
– other documents directly related to the circumstances under consideration (confirming that these circumstances occurred).
In accordance with Article 192 of the Labor Code of the Russian Federation, the dismissal of an employee for the specified reasons, in turn, is also a disciplinary sanction. The general procedure for applying disciplinary sanctions is determined by Article 193 of the Labor Code of the Russian Federation.
When dismissing an employee - a member of a trade union organization of an enterprise - on the basis provided for in paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation, the employer must take into account the reasoned opinion of the relevant trade union body. On the dismissal of an employee, the employer (in this case, the new owner of the enterprise) issues a corresponding order (instruction), on the basis of which other necessary documents are drawn up.
Early termination of an employment contract due to a one-time gross violation of labor duties by an employee
It seems appropriate to devote the next paragraph of the reference book to consideration of the procedure for early termination of an employment contract in connection with a one-time gross violation of labor duties by an employee (clause 6 of part one of Article 81 of the Labor Code of the Russian Federation). This paragraph provides several grounds for dismissal of an employee guilty of committing a gross violation of labor duties, namely:
– absenteeism – i.e. absence of an employee from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) (subparagraph "a" " point 6);
– the appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic (drug or other toxic) intoxication (subparagraph "b" of paragraph 6);
– disclosure by an employee of a secret protected by law (including state, commercial, official and other) that became known to him in connection with the performance of his job duties, including disclosure of personal data of another employee (subparagraph “c” of paragraph 6);
– the commission by an employee at the place of work of theft (including small) of someone else’s property, its waste or intentional destruction (damage), established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses (subparagraph " d" paragraph 6);
– violation of labor protection requirements by an employee established by the commission (authorized) for labor protection - if the violation entailed serious consequences (work accident, breakdown, catastrophe) or knowingly created a real threat of their occurrence (subparagraph “d” of paragraph 6).
The employer has the right to initiate a procedure for early termination of an employment contract in relation to a particular employee on the basis of documents proving the latter’s guilt in committing actions (the occurrence of circumstances) and, thus, making it possible to dismiss the culprit on the basis provided for in paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation. Such documents may include, for example, the following:
– an act confirming the fact of the employee’s absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day;
– a medical report on the results of an examination of an employee who appeared at work in a state of alcoholic (drug or other toxic) intoxication;
– conclusions based on the results of the investigation (if necessary, with the attachment of investigation materials) of the fact of disclosure by an employee of a legally protected secret (including state, commercial, official and other) that became known to him in connection with the performance of his job duties;
– a court verdict (a decision of a body authorized to apply administrative penalties), which has entered into legal force and confirms the fact that an employee at the place of work committed theft (including small) of someone else’s property, its waste or deliberate destruction (damage);
– conclusions based on the results of the investigation (if necessary, with the attachment of investigation materials) of the fact of violation by the employee of labor protection requirements, which entailed serious consequences or knowingly created a real threat of such consequences.
All listed documents must be properly completed. It is necessary to pay attention to the fact that dismissal on the grounds provided for in paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation is a disciplinary sanction and, therefore, when carrying out the procedure for early termination of an employment contract, the employer is obliged to adhere to the procedure for applying disciplinary sanctions defined in Article 193 of the Labor Code of the Russian Federation.
Let us dwell on the specifics of dismissal of employees on the grounds provided for in the relevant subparagraphs of the article in question.
So, despite the fact that subparagraph “a” of paragraph 6 clearly defines what should be considered absenteeism, when making a final decision to dismiss an employee on the appropriate grounds, the employer should first pay attention to some other circumstances. For example, suspension of work due to a delay in payment of wages for more than 15 days cannot be qualified as absenteeism, provided that the employee informed the employer in writing in advance of his intention (see in this regard, Article 142 of the Labor Code of the Russian Federation). An employee has the right to refuse to perform work (labor function) that is not stipulated by the employment contract concluded with him and, therefore, may be legally absent from the workplace (see in this regard, Article 60 of the Labor Code of the Russian Federation).
On the other hand, the employer has the right to consider as absenteeism the employee’s abandonment of work (and, accordingly, the workplace), undertaken by the latter without written warning to the employer of the intention to terminate the employment contract on his own initiative at least two weeks in advance.
The fact that an employee appears at work in a state of alcoholic (drug or other toxic) intoxication (subparagraph “b” of paragraph 6) can be confirmed not only by a medical report, but also by a properly executed document. The employer is obliged to remove this employee from performing work (Article 76 of the Labor Code of the Russian Federation), i.e. do not allow him to enter the workplace as soon as it becomes obvious, for example, by some specific external signs, that the latter has consumed alcohol (drugs, etc.).
In the event that the employee has not been suspended from work, responsibility for the possible consequences of his performance of work duties while intoxicated falls on the employer. In the future, the employee may be allowed to perform work as soon as the circumstances preventing this no longer exist. However, this does not deprive the employer of the right to dismiss an employee for gross violation of labor discipline. If, despite the testimony given in relation to the employee by other persons, a subsequent medical report does not confirm the fact of his intoxication, then the employer does not have the right to continue to deny the employee access to the workplace to perform the work assigned to him in accordance with the employment contract (labor function). ).
Dismissal of an employee in connection with the disclosure of a secret protected by law (subparagraph “c” of paragraph 6) is permitted if the following circumstances occur:
1. An employment contract (or a corresponding agreement to it, or an additional agreement in relation to the employment contract - for example, provided for by the Instruction on the procedure for accessing officials and citizens of the Russian Federation to state secrets, approved by Decree of the Government of the Russian Federation dated October 28, 1995 No. 1050) contains a condition on inadmissibility of disclosure by an employee of information constituting a secret protected by law.
2. The relevant information was indeed entrusted to the employee for the purpose of proper performance of the work assigned to him (labor function), while the employee was aware that the specified information constituted a secret protected by law.
3. The fact that the employee disclosed relevant information - for example, the personal data of another employee - is documented.
The most indisputable from a legal point of view seems to be the early termination of an employment contract with an employee found guilty of committing theft (including small) of someone else’s property at the place of work, its waste or intentional destruction (damage). This act must be established by a court verdict that has entered into legal force or by a decision of a judge, body or official authorized to apply administrative penalties (subparagraph “d” of paragraph 6). In this case, the employer is guided by documents issued in accordance with the established procedure by authorized bodies.
In this case, the Labor Code makes no distinction as to whether the stolen (damaged, destroyed or wasted) property belonged to the employer or to another person (for example, another employee of the enterprise). The main thing is that the corresponding action was committed by the offender at the place of work (which, of course, should be understood not as a workplace, but as an enterprise where the employee works).
It is also necessary to pay attention to the legal subtleties regarding the choice of grounds for dismissing an employee. A person guilty of committing illegal actions in relation to someone else's property at the place of work can be dismissed under subparagraph "d" of paragraph 6 only if the court verdict indicates that the employee has been sentenced to punishment, which does not exclude the possibility of the employee performing his job duties. This circumstance must be taken into account when issuing a dismissal order and making appropriate entries in the work book.
And, finally, on the early termination of the employment contract on the basis provided for in subparagraph "d" of paragraph 6. Dismissal on the specified basis of an employee who has violated labor protection requirements, which had serious consequences or knowingly created a threat of such consequences, is permitted if:
1. The employee was familiarized with the labor protection requirements in the prescribed manner (in this regard, see Article 225 of the Labor Code of the Russian Federation).
2. The employer provided the employee with labor safety and conditions that meet the requirements of occupational safety and health.
3. The employee’s violation of these requirements actually entailed serious consequences or created a real threat to their occurrence.
4. The circumstances listed above are documented - a properly executed report on an industrial accident, an expert opinion issued by an authorized body, a resolution of a state labor protection inspector, etc.
The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.
Early termination of an employment contract due to the commission of guilty actions by an employee directly servicing monetary or commodity assets
In accordance with paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation, the employer has the right, on his own initiative, to terminate the employment contract early in connection with the commission of guilty actions by an employee directly servicing monetary or commodity assets - for example, a bank employee, cashier, storekeeper, freight forwarder, etc. . In general, dismissal of an employee on the specified grounds is permitted provided that:
– the employee, in accordance with the employment contract concluded with him, was entrusted with the performance of work (labor function) involving the direct servicing of monetary (commodity) assets, and he actually performed the corresponding work, which is documented;
– the fact that the employee committed guilty actions is appropriately recorded in the documents;
– the commission of guilty actions gives the employer grounds for loss of confidence in the employee.
Documents used as evidence of the employee’s guilt must be properly executed. At the same time, it is necessary to pay attention to the fact that the list of circumstances, the occurrence of which can, in principle, be considered by the employer as giving grounds for loss of confidence in relation to a particular employee (taking into account the above) is actually more extensive than this may be appear to respected readers at first glance. Thus, law enforcement practice in recent years indicates that employers may take into account the following circumstances as such:
– circumstances that in themselves indicate the illegal nature of the employee’s actions, namely: receiving payment for goods (services) sold without the appropriate documents, underfilling, measuring, weighing, shortchanging, violating the rules for the sale of alcoholic beverages and cigarettes, violating the rules for issuing narcotic drugs and so on.;
– circumstances indicating the employee’s negligent attitude towards his job duties, which, in turn, gives the employee grounds for loss of trust, including: accepting and issuing sums of money without proper registration, storing keys to premises with material (monetary) valuables in inappropriate place, uncontrolled storage of valuables, maintenance of premises and equipment intended for storing valuables in improper condition, making their theft (loss) possible, etc.;
– circumstances indicating that the employee uses the property entrusted to him for direct maintenance for personal purposes.
Please note that the law does not make any distinction as to whether the guilty actions were committed once or repeatedly (twice or more times), what is the amount of damage caused by the actions, etc. The basis for early termination of an employment contract lies in the very fact that one or another employee committed guilty actions and its corresponding (documentary) confirmation. It also does not matter whether an agreement on full financial liability was previously concluded with the guilty employee or not. Finally, it does not matter whether the work involving the direct servicing of material (monetary) values by the guilty employee was the main one, or whether the latter performed it part-time.
On the other hand, the dismissal of certain categories of workers on the basis provided for in paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation cannot be implemented due to the fact that they cannot be entrusted (entrusted) with the performance of the relevant types of work.
To make a decision to dismiss a guilty employee due to loss of trust in him by the employer, as a rule, the documents listed above are sufficient, i.e. such a decision can be made in the absence of a court verdict that has entered into legal force, as provided for in subparagraph "d" of paragraph 6. However, in the case where the fact of the employee committing guilty actions (theft, bribery, other mercenary offenses) is established in the manner prescribed by law , the culprit may be fired due to loss of trust and if the commission of such actions is not related to the performance of work on servicing material (monetary) assets.
If guilty actions giving grounds for loss of confidence were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his job duties, then dismissal on the grounds provided for in paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation is allowed within one year, calculated from the date when the employer became aware of the employee’s misconduct (see part five of Article 81 of the Labor Code of the Russian Federation).
The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.
Early termination of an employment contract due to an employee committing an immoral offense
Early termination of an employment contract in connection with the commission of an immoral offense by an employee performing educational functions (clause 8 of part one of Article 81 of the Labor Code of the Russian Federation) is carried out if such an act is incompatible with the continuation of this work. It is noteworthy that this provision of the Labor Code does not specify under what circumstances - related or not related to the performance of the assigned work (labor function) - a particular employee committed an offense.
At the same time, an employee of an educational institution (institution) who, in accordance with an employment contract, is entrusted with work (labor function) not related to the education of wards, cannot be dismissed on this basis. Accordingly, early termination of employment contracts with employees from the administration of establishments (institutions), as well as with technical (service) personnel in connection with their commission of immoral offenses is not allowed.
The fact that an employee has committed an immoral offense must be documented, for example, by materials from an internal investigation. Conclusions based on the results of the investigation (other similar documents) must convincingly indicate the incompatibility of the employee committing an immoral offense with his continuation of his previous work.
This takes into account the circumstances of the commission of the immoral offense, the degree of its severity, as well as whether the employee has previously committed similar offenses. As a rule, when an employer makes a decision on dismissal, it also takes into account how well the employee has proven himself in the eyes of his colleagues and wards.
If an immoral offense was committed by an employee outside the place of work or at the place of work, but not in connection with the performance of his job duties, then dismissal on the grounds provided for in paragraph 8 of part one of Article 81 of the Labor Code of the Russian Federation is allowed within one year, calculated from the date when the employer became aware of the employee’s misconduct (see part five of Article 81 of the Labor Code of the Russian Federation).
The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.
Early termination of an employment contract due to the employee making an unreasonable decision that resulted in damage to the property of the enterprise
An unjustified decision that entails a violation of the safety of property, its unlawful use or other damage to the property of the enterprise can be made by the head of the enterprise (branch, representative office), his deputies and the chief accountant. In this case, early termination of the employment contract with them is possible on the grounds provided for in paragraph 9 of part one of Article 81 of the Labor Code of the Russian Federation. As the name suggests, dismissal on this basis applies only to strictly defined categories of employees of the enterprise. To ensure the legality of dismissal on this basis, the following is essential:
1. The employee, in accordance with the employment contract, is vested with the authority to make decisions regarding the disposal of the property of the enterprise (establishing the procedure for disposing of this property) and actually made such decisions in the process of daily activities.
2. A decision made by an employee and considered by the employer as a circumstance making it possible to dismiss an employee on the grounds provided for in paragraph 9 of part one of Article 81 of the Labor Code of the Russian Federation must be qualified as unreasonable.
3. The consequence of the employee making an unfounded decision was a violation of the safety of the enterprise’s property, its unlawful use or other damage caused to the enterprise’s property.
4. The circumstances listed above are documented.
Let us add that there must be a clearly visible cause-and-effect relationship between the decision made by the employee, the nature of this decision, as well as its consequences for the enterprise (its property interests). In other words, the employee must be responsible for the decision made by him personally.
As law enforcement practice shows, it is most difficult to establish such a connection in relation to decisions that are not recorded in any management documents, i.e. announced orally. In such cases, the circumstances of the decision-making and its implementation require especially careful study.
The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.
Early termination of an employment contract due to a one-time gross violation by an employee - the head of an enterprise of his labor duties
Let's move on to consider the procedure for early termination of an employment contract in connection with a one-time gross violation by an employee - the head of an enterprise (branch, representative office) (his deputy) of his labor duties (clause 10 of part one of Article 81 of the Labor Code of the Russian Federation). The application of this basis for dismissal is even more “selective” in nature, since it does not apply to employees holding the position of chief accountant.
The content of the paragraph in question does not define what exactly should be considered a gross violation. Consequently, it seems possible to qualify a violation committed by an employee as gross for the employer either on the basis of an appropriate list - for example, included in the content of an employment contract concluded with an employee, or guided by current law enforcement practice.
Among the gross violations committed by employees - heads of enterprises (branches, representative offices) and their deputies, it is currently customary to include:
– violation of labor protection rules;
– violation of the rules for accounting for valuables, abuse of official authority;
– use of official powers for personal (selfish) purposes, etc.
Dismissal on the grounds provided for in paragraph 10 of part one of Article 81 of the Labor Code of the Russian Federation will be legal if:
1. An employment contract concluded with an employee contains a condition on the latter’s obligation to perform certain actions in accordance with the powers granted (or, on the contrary, a condition ordering the employee to refrain from performing certain actions).
2. The employee committed the relevant violation in fact and this fact was documented in the proper form.
Dismissal on this basis will be legal even if the employment contract concluded with the employee specifically states that the commission of such and such actions (abstaining from performing them) is qualified as a gross violation and entails the dismissal of the violator for the basis provided for in paragraph 10 of part one of Article 81 of the Labor Code of the Russian Federation. At the same time, the inclusion of a corresponding condition in an employment contract should not contradict other provisions of the Labor Code, which provide for the possibility of early termination of an employment contract with an employee - the head of an enterprise (branch, representative office) (his deputy) on other grounds.
It is necessary to pay attention to the fact that the ground we are considering gives the employer the right, on his own initiative, to early terminate an employment contract with an employee who has committed a gross violation once. Depending on the circumstances characterizing the violation, the employer himself decides whether to dismiss the violator or wait until another suitable case presents itself.
The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.
Early termination of an employment contract due to the employee submitting false documents to the employer when concluding an employment contract
The grounds for dismissal for this reason are provided for in paragraph 11 of part one of Article 81 of the Labor Code of the Russian Federation. It should immediately be clarified that the requirements for the composition of the documents submitted by the employee when concluding an employment contract are determined by Article 65 of the Labor Code of the Russian Federation and, therefore, an attempt by the employer to accuse the employee of submitting false documents, which the employer did not have the right to insist on, will, from a legal point of view, be look insolvent.
The employer has the right to terminate the employment contract early if the employee has presented a false (relatively speaking, someone else’s or counterfeit) work record book or a false passport. This fact must be properly documented (for example, an act of verification of a document that raises doubts).
The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.
Early termination of an employment contract
on the grounds provided for in the employment contract with the employee - the head of the enterprise
An employment contract may provide additional grounds for the dismissal of an employee - the head (members of the collegial executive body) of the enterprise (clause 13 of part one of Article 81 of the Labor Code of the Russian Federation).
The peculiarity of this clause lies, firstly, in the fact that it can only be applied to the dismissal of employees from among the managers (members of the collegial executive body) of the enterprise and, secondly, only on the grounds provided for in employment contracts concluded with these employees in addition to the general grounds for dismissal.
Additional grounds for dismissal are established upon concluding an employment contract by agreement between the employee-manager (member of the collegial executive body) and the employer. In this case, it is recommended to be guided by the content of exemplary (standard) employment contracts with the relevant categories of employees.
A sample employment contract with the head of a federal state unitary enterprise provides for a number of additional grounds for dismissal. Here they are:
1. Failure, through the fault of the manager, to comply with the indicators of economic efficiency of the enterprise’s activities approved in the established manner.
2. Failure to ensure that audits of the enterprise are carried out in accordance with the established procedure.
3. Failure to comply with decisions of the Government of the Russian Federation and federal executive authorities.
4. Conducting transactions with property under the economic control of the enterprise, in violation of the requirements of the law and the special legal capacity of the enterprise determined by the charter of the enterprise.
5. The presence of more than three months of wage arrears at the enterprise due to the fault of the manager.
6. Violation through the fault of the manager, established in the manner prescribed by the legislation of the Russian Federation, of labor protection requirements, which resulted in the adoption by the head of the state labor inspection and the state labor inspector of a decision to suspend the activities of the enterprise or its structural unit or a court decision to liquidate the enterprise or terminate the activities of its structural unit divisions.
7. Failure to ensure the use of the enterprise’s property, including real estate, for its intended purpose in accordance with the types of activity of the enterprise established by the Charter of the enterprise, as well as failure to use budgetary and extra-budgetary funds allocated to the enterprise for its intended purpose for more than three months.
8. Disclosure by the manager of information constituting an official or commercial secret that became known to him in connection with the performance of his official duties.
9. Violation of the requirements of the legislation of the Russian Federation, as well as the Charter of the enterprise in terms of reporting information about the presence of interest in making transactions, including among affiliated persons.
10. Violation of the ban on engaging in certain types of activities established by the legislation of the Russian Federation.
At the same time, it should be remembered that, in accordance with Article 57 of the Labor Code of the Russian Federation, the employment contract should not include conditions (including those determining the procedure for its termination) that worsen the employee’s position in comparison with those provided for by the Labor Code, laws and other regulations.
The occurrence of circumstances that make it legal for the early termination of an employment contract with an employee - manager (member of the collegial executive body) of the enterprise must be documented. At the same time, the forms and methods of their documentary confirmation may be different.
The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.
Termination of an employment contract in connection with the employee’s transfer to work for another employer or to an elective job (position)
The procedure for terminating an employment contract in connection with the employee’s transfer to work for another employer or to an elective job (position) is not specifically defined by the Labor Code, although the corresponding basis for dismissing an employee is provided for in paragraph 5 of part one of Article 77 of the Labor Code of the Russian Federation. In this case, the employer, apparently, should adhere to the general procedure for terminating an employment contract and the above recommendations, especially since the mentioned paragraph clearly defines the circumstances the occurrence of which makes it possible to dismiss an employee on the basis in question.
Previously, we have repeatedly drawn the attention of our dear readers to the need to document the circumstances, the occurrence of which allows us to qualify the dismissal of an employee as legal. In the case under consideration, the issuance of an order (instruction) on dismissal is permitted on the basis of:
– a written application from the employee, positively reviewed by the employer, containing a request for the latter to transfer to work for another employer or the employee’s consent to such a transfer;
– a written application from the employee, positively reviewed by the employer, containing a request for the latter to transfer to elective work or the employee’s consent to such a transition.
The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.
In accordance with Part 1 of Article 375 of the Labor Code of the Russian Federation, an employee released from work in connection with his election to an elective position in the trade union body of this organization must be given his previous job (position) after the end of his term of office. If it is impossible to provide one, it is necessary, with the consent of the employee, to provide another equivalent job (position) at the same enterprise. However, if an employee refuses the proposed job (position), the employment contract with him is terminated on the basis provided for in paragraph 7 of part one of Article 77 of the Labor Code of the Russian Federation.
When an employee moves to another enterprise at the written proposal of a new employer, the latter does not have the right to refuse employment within a month from the date of dismissal from his previous place of work, unless by agreement between the employee and the employer another, including a longer period, has been established . The corresponding guarantee is provided for in Article 64 of the Labor Code of the Russian Federation.
Termination of an employment contract due to a change of owner, in connection with a change in the jurisdiction of the enterprise or in connection with its reorganization
The procedure for terminating an employment contract in connection with the employee’s refusal to continue working due to a change of owner, in connection with a change in the jurisdiction of the enterprise, or in connection with its reorganization is determined by Article 75 of the Labor Code of the Russian Federation. It must be emphasized that in this case the right and initiative to terminate the employment contract early belongs to employees of the following categories:
- The head of the company;
– deputy head of the enterprise;
– chief accountant of the enterprise.
Such a right - more precisely, the right to refuse to continue working - is granted to the specified categories of workers if, after concluding employment contracts with them, there is a change of owner, a change in the jurisdiction of the enterprise, or its reorganization. Dismissal for the specified reasons should not be considered as a “special case” of dismissal of an employee at his own request (see in this regard, Article 80 of the Labor Code of the Russian Federation), since the article we are considering specifically lists the circumstances, the occurrence of which makes the dismissal of an employee lawful - even if his initiative.
The employee must notify the new employer of his refusal to continue working due to a change in the owner of the enterprise, in compliance with the requirements established for the procedure for such warning. If an employee refuses to continue working due to a change in the owner of the enterprise’s property, the employment contract is terminated on the basis provided for in paragraph 6 of part one of Article 77 of the Labor Code of the Russian Federation.
The employee must also notify the new employer of refusal to continue work in connection with a change in the jurisdiction (subordination) of the enterprise, as well as during its reorganization (merger, accession, division, spin-off, transformation), in compliance with the requirements established regarding the procedure for such warning. If an employee refuses to continue working due to a change in the jurisdiction of the enterprise or its reorganization, the employment contract is terminated on the basis stated above.
The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.
Termination of an employment contract due to changes in the terms of the employment contract
The procedure for terminating an employment contract in connection with the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties is determined by Article 74 of the Labor Code of the Russian Federation, the content of which we discussed earlier. In this regard, we will briefly dwell on issues directly related to the dismissal of an employee on the grounds provided for in paragraph 7 of part one of Article 77 of the Labor Code of the Russian Federation due to the occurrence of the circumstances considered under this paragraph.
The essence of these circumstances lies in a motivated change in the terms of the employment contract determined by the parties at the initiative of the employer in connection with a change in organizational or technological working conditions. An employee who is warned in the prescribed manner about the upcoming change in the terms of the employment contract in connection with a change in organizational or technological working conditions and who declares his refusal to continue working under the new conditions is subject to dismissal.
The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.
Termination of an employment contract due to the employee’s refusal to be transferred to another job for health reasons
The procedure for terminating an employment contract in connection with an employee’s refusal to transfer to another job due to health conditions is determined by Article 73 of the Labor Code of the Russian Federation, which we also discussed earlier. Therefore, we will again touch only on issues directly related to the dismissal of an employee on the basis provided for in paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation due to the occurrence of circumstances determined by parts three and four of Article 73 of the Labor Code of the Russian Federation.
The essence of these circumstances is the employer’s obligation to transfer the employee to a job that is not contraindicated for him due to health reasons, if, in accordance with a medical report, the latter needs to be provided with such work. An employee who has been warned in the prescribed manner about the need to transfer to another job and has declared his refusal to do so is subject to dismissal.
The employer’s decision to dismiss an employee due to refusal to transfer to another job that is not contraindicated for him due to health reasons will be legal even if he does not have the corresponding job in the given area (provided that he is not obliged to offer the employee the corresponding job in other area).
The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.
Termination of an employment contract due to the employee’s refusal to be transferred to another job when the employer moves to another location
The procedure for terminating an employment contract in connection with the employee’s refusal to be transferred to another job due to the employer’s relocation to another location is determined by part one of Article 72.1 of the Labor Code of the Russian Federation, and the corresponding basis for dismissal is provided for in paragraph 9 of part one of Article 77 of the Labor Code of the Russian Federation. Let us clarify that in this case another area should be understood as an area outside the administrative-territorial boundaries of the settlement indicated in the employer’s registration documents as the latter’s permanent location.
The fact that the employer has moved to another location must be documented, and the refusal to transfer to another permanent job due to the employer’s move to another location must be expressed by the employee in writing. Failure to comply with these conditions - in the event of dismissal of an employee on the grounds provided for in paragraph 9 of part one of Article 77 of the Labor Code of the Russian Federation - may subsequently give rise to a labor dispute due to the unobvious legality of the employer's decision to terminate the employment contract.
The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.
Termination of an employment contract due to circumstances beyond the control of the parties
The procedure for terminating an employment contract due to circumstances beyond the control of the parties is determined by part one of Article 83 of the Labor Code of the Russian Federation, and the corresponding basis for dismissal is determined by paragraph 10 of part one of Article 77 of the Labor Code of the Russian Federation. Here they are:
1. Calling up an employee for military service or sending him to an alternative civilian service that replaces it.
2. Reinstatement of an employee who previously performed this work by decision of the state labor inspectorate or court.
3. Failure to be elected to office.
4. Convicting the employee to a punishment that precludes the continuation of his previous work, in accordance with a court verdict that has entered into legal force.
5. Recognition of the employee as completely incapable of working in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation.
6. Death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as deceased or missing.
7. The occurrence of emergency circumstances that impede the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a government body of the relevant subject of the Russian Federation.
8. Disqualification or other administrative punishment that precludes the employee from fulfilling his duties under the employment contract.
9. Expiration, suspension of validity for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, right to carry a weapon, other special right) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of the employee fulfilling his duties under the employment contract.
10. Termination of access to state secrets if the work performed requires such access.
11. Cancellation of a court decision or cancellation (recognition as illegal) of the decision of the state labor inspectorate to reinstate the employee at work.
The fact of occurrence of the listed circumstances must be documented - either by the employee or the employer (depending on what specific circumstances we are talking about). Such documents include:
– a summons for conscription into military service or a documented decision of the relevant military authority (for example, a military commissariat) to send an employee to alternative civilian service (clause 1 of part one of Article 83 of the Labor Code of the Russian Federation);
– a decision of the state labor inspectorate or a court to reinstate the employee who performed it previously (clause 2 of part one of Article 83 of the Labor Code of the Russian Federation);
– decision of the relevant elected body not to elect an employee who previously held an elective position (clause 3 of part one of Article 83 of the Labor Code of the Russian Federation);
– a court verdict that has entered into legal force, according to which the employee is sentenced to a punishment that precludes the continuation of his previous work (clause 4 of part one of Article 83 of the Labor Code of the Russian Federation);
– a medical report, according to which the employee is recognized as completely disabled (clause 5 of part one of Article 83 of the Labor Code of the Russian Federation);
– a death certificate of an employee or a court decision declaring the employee (employer - individual) dead or missing (clause 6 of part one of Article 83 of the Labor Code of the Russian Federation);
– documents confirming the occurrence of emergency circumstances that prevent the continuation of labor relations (clause 7 of part one of Article 83 of the Labor Code of the Russian Federation);
– documents confirming disqualification (other administrative punishment that precludes the employee from fulfilling his duties under an employment contract) (clause 8 of part one of Article 83 of the Labor Code of the Russian Federation);
– license, right to drive a vehicle, right to carry a weapon, etc. expired or a document according to which the employee is deprived of a license (rights, etc.) (clause 9 of part one of Article 83 of the Labor Code of the Russian Federation);
– a document in accordance with which the employee’s access to state secrets has been terminated, or the validity period of the access has expired (clause 10 of part one of Article 83 of the Labor Code of the Russian Federation);
– a decision to cancel a previous court decision or to cancel (declare illegal) the decision of the state labor inspectorate to reinstate an employee at work (clause 11 of part one of Article 83 of the Labor Code of the Russian Federation).
The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.
Termination of an employment contract due to violation of the rules for its conclusion
The procedure for terminating an employment contract in connection with a violation of the rules for its conclusion, if this violation excludes the possibility of continuing work, is determined by Article 84 of the Labor Code of the Russian Federation. Such rules, as is known, can be established by the Labor Code of the Russian Federation or other federal law.
Compliance with these rules by employer and employee is mandatory. If, after concluding an employment contract, it is established that one or another rule was not fulfilled, the employment contract is subject to early termination on the grounds provided for in paragraph 11 of part one of Article 77 of the Labor Code of the Russian Federation. At the same time, violations of these rules must exclude the possibility of the employee continuing the work assigned to him in accordance with the employment contract (labor function), and it is not possible to transfer the employee to another job available to the employer - due to the absence of the latter or due to the employee’s disagreement with such a transfer.
Termination of an employment contract on the grounds provided for in paragraph 11 of part one of Article 77 of the Labor Code of the Russian Federation is permitted if one of the following situations occurs:
1. The conclusion of the employment contract was carried out in violation of a court verdict that had entered into legal force depriving the employee of the right to occupy certain positions (engage in certain activities).
2. The concluded employment contract contained a condition on performing work that was contraindicated for the employee for health reasons in accordance with the medical report.
3. The conclusion of the employment contract was made in the absence of a corresponding document on education - provided that the performance of the work assigned to the employee in accordance with the employment contract requires special knowledge in accordance with federal law or other legal acts.
4. The conclusion of the employment contract was carried out in violation of the decision of the judge (body, official) authorized to consider cases of administrative offenses, disqualification or other administrative punishment, precluding the possibility of the employee fulfilling his duties under the employment contract.
5. The conclusion of the employment contract was carried out in violation of the procedure provided for by the relevant federal laws.
The occurrence of relevant circumstances must be documented. At the same time, the impossibility of the employee continuing his previous work must be documented, as well as the absence of other work at the enterprise to which the employee could be transferred (with his consent).
The employee’s refusal to be transferred to another job must be expressed in writing. When an employee is dismissed on the grounds provided for in paragraph 11 of part one of Article 77 of the Labor Code of the Russian Federation, he is paid severance pay in the amount of average monthly earnings.
The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.
Early termination of an employment contract in other cases established by law
The Labor Code of the Russian Federation states that an employment contract can be terminated early and in other cases established by law (clause 14 of part one of Article 81 of the Labor Code of the Russian Federation).
In this case, we are talking about situations in which the employer, based on the provisions of the law, has the right to dismiss the employee on his own initiative, terminating his employment contract before the expiration of the latter. In other words, these are situations that allow early dismissal of an employee at the initiative of the employer and are directly provided for by law, with the exception of those discussed earlier.
Thus, Article 33 of the Federal Law of the Russian Federation dated July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” gives the employer the right to early termination of an employment contract with an employee - a state civil servant on the following grounds:
1. Agreement of the parties to the service contract.
2. Expiration of the fixed-term service contract.
3. Termination of a service contract at the initiative of a civil servant.
4. Termination of a service contract at the initiative of the employer’s representative.
5. Transfer of a civil servant at his request or with his consent to another government body or to a different type of government service.
6. Refusal of a civil servant from a civil service position proposed for filling, or from professional retraining or advanced training in connection with the reduction of civil service positions, as well as the failure to provide him with another civil service position in these cases.
7. Refusal of a civil servant from a civil service position proposed to be filled in connection with a change in the essential terms of the service contract.
8. Refusal of a civil servant to be transferred to another position in the civil service for health reasons in accordance with a medical report, or the absence of such a position in the same government body.
9. Refusal of a civil servant to be transferred to another locality together with a government agency.
10. Circumstances beyond the control of the parties to the service contract.
11. Violation of the mandatory rules for concluding a service contract established by the Federal Law of the Russian Federation of July 27, 2004 No. 79-FZ or other federal laws, if this violation excludes the possibility of filling a civil service position.
12. Resignation of a civil servant from citizenship of the Russian Federation.
13. Failure to comply with restrictions and failure to fulfill obligations established by the Federal Law of the Russian Federation of July 27, 2004 No. 79-FZ and other federal laws.
14. Violation of prohibitions related to the civil service, provided for by the Federal Law of the Russian Federation of July 27, 2004 No. 79-FZ.
15. Refusal of a civil servant to fill a previous position in the civil service if the test result is unsatisfactory.
The corresponding grounds may be provided for by other laws of the Russian Federation in relation to other categories of workers.
For example, in accordance with the Federal Law “On Education” dated July 10, 1992 No. 3266-1, in addition to the grounds for termination of an employment contract on the initiative of the administration of an educational institution, provided for by the labor legislation of the Russian Federation, the grounds for early dismissal of a teaching employee of an educational institution on his initiative administrations are:
– repeated gross violation of the charter of an educational institution within a year;
– use, including one-time use, of educational methods associated with physical and (or) mental violence against the personality of the student or pupil;
– appearing at work in a state of alcohol, drug or toxic intoxication.
Information about additional grounds for dismissing an employee is recorded in the employment contract. The fact of the occurrence (identification) of circumstances allowing the dismissal of an employee for one of the additional grounds must be documented.
The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.
The law regulates in detail the termination of an employment contract at the initiative of the employer. The fact is that it is in this matter that the employee is least protected, and the field of possible abuse for the employer is wider than in any other area of labor relations. Therefore, the intervention of the law in this issue is completely justified.
Dismissal - strictly according to the law
The employer and employee are parties to an employment contract, that is, an agreement between the parties to establish labor relations between them.
The employer’s right to conclude, amend and terminate (or terminate, which is the same thing) employment contracts in the manner and under the conditions established by the Labor Code of the Russian Federation is enshrined in its article. 22.
It corresponds to the same right of the employee (Article 21 of the Labor Code).
This means that the employer cannot arbitrarily dismiss an employee on his own initiative; there must be legal grounds for this. Compliance with the procedure for terminating an employment contract at the initiative of the employer is also a necessary condition for its legality.
Grounds for dismissal
Dismissal for wrongdoing
The fact of theft, embezzlement or intentional destruction must be established by a judicial act (sentence, resolution) that has entered into legal force.
The falsity of the document submitted by the employee must be properly established and recorded (for example, by a special examination).
Conditions for termination of an employment contract at the initiative of the employer
Each group of grounds has its own order and procedure for dismissal, enshrined in law. Failure to comply with them may lead to the employee’s reinstatement at work and administrative liability of the employer under Art. 5.27 Code of Administrative Offenses of the Russian Federation.
But there are also general conditions: an employee dismissed at the initiative of the employer must not be on vacation or on sick leave at that time (except in cases of liquidation of the organization or termination of the activities of an individual entrepreneur).
Dismissal of an employee during such periods is prohibited by Part 6 of Art. 81 Labor Code of the Russian Federation. Neglecting this rule can also be costly for the employer.
All the grounds for termination of an employment contract at the initiative of the employer listed in the article apply to both fixed-term and open-ended contracts. .
By violating the procedure for terminating an employment contract at the initiative of an employee in 2018, the company is at great risk. We’ll tell you how to avoid conflict and complete all the necessary documents on time.
From the article you will learn:
At first glance, voluntary dismissal is the simplest and most trouble-free way to say goodbye to an employee. There is no need to pay severance pay or look for “reinforced concrete” reasons for terminating the employment relationship. But not everything is so smooth: the slightest violation of the procedural order can make the employer a defendant in court. Explanations from experts, cases from practice and useful tips on the topic - in a special collection " : How to prevent lawsuits."
Grounds for termination of an employment contract at the initiative of an employee in 2018
A written statement is the only legal basis that allows you to formalize the termination of an employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation). The text of the application must clearly and unambiguously indicate the desire to resign. In other words, it must reflect the conscious voluntary position of the applicant. If the wording is vague and ambiguous, there is no clear request to fire, and the date is not specified, the company may have problems in the future, but it is even more dangerous to fire based on an oral request. An employee may be reinstated by a court decision. In the article “How at work” describes the correct algorithm for the employer’s actions in case of such an outcome.
Download documents on the topic:
Important: the application is considered valid only if it is dated and signed by the applicant.
The employee is not required to indicate the reason for leaving. But he can do this to confirm the right to dismissal without service (for example, write that he is retiring on such and such a day). Unified resignation letter form at your own request does not exist. The employer can independently develop a sample template or accept applications written in free form. This is what a typical document example looks like:
General procedure for terminating an employment contract at the employee’s initiative
The procedure for terminating an employment contract at the initiative of an employee is regulated by Article 80 of the Labor Code of the Russian Federation. First, the employee submits a letter of resignation to the human resources department - in person, through a representative, by mail or fax. If before the expiration of the notice period he has not changed his mind and has not exercised the right of withdrawal, the employer issues an order to terminate the employment contract. The administrative document is drawn up using the unified T-8 form or a locally developed form.
Test yourself
1. In what case is a TD terminated due to circumstances beyond the control of the parties:
- a. the employee submitted a letter of resignation due to retirement;
- b. the employer reduces the number of staff;
- c. the license giving the right to perform a certain type of necessary work has expired.
2. What document is issued to the employee on the day of dismissal only at his request:
- a. a copy of the award order;
- b. employment history;
- c. certificate of salary amount.
3. What are the consequences of concluding a TD in violation of key requirements of the law (for example, if the employee does not have sufficient qualifications to work in this position):
- a. the labor inspectorate will oblige you to renew the trade agreement without violations;
- b. relations between the parties are terminated on the basis of Article 84 of the Labor Code of the Russian Federation;
- c. it is necessary to change the terms of the agreement with an additional agreement to it.
4. Who cannot be fired due to loss of trust:
- a. additional education teacher;
- b. collector;
- c. cashier.
5. How much notice must be given of dismissal during the probationary period:
- a. in 5 days;
- b. in 7 days;
- c. in 3 days.
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Articles 56-62: Basic provisions. The concept of an employment contract. Parties to the employment contract Contents of the employment contract. Fixed-term employment contract. Part-time work. |
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Articles 63-71: Conclusion of an employment contract. Form of employment contract. Registration of employment. Medical checkup. Employment test and its result. |
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Articles 72-76: Change of employment contract. Changes in working conditions. Transfer to another job, incl. temporary and for medical reasons. Moving. Suspension from work |
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Articles 77-84: Termination of an employment contract. Grounds for termination of an employment contract. Termination of an employment contract at the initiative of the employee or at the initiative of the employer. |
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Articles 86-90: Protection of employee personal data. General requirements for the processing of personal data and guarantees of their protection. Storage and use of personal data. |
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Articles 91-99: Work time. Normal and reduced working hours. Part-time work. Night work. Overtime work. |
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Articles 100-105: Working hours. Irregular working hours. Shift work. Summarized working time recording. Dividing the working day into parts. |
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Articles 106-113: Types of rest time. Work breaks. Weekends and holidays. Breaks for rest and food. Special breaks for warming and rest. |
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Articles 114-128: Vacations. Types, duration and procedure for granting leaves. Review from vacation. Replacement of annual paid leave with monetary compensation. |
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Articles 129-135: Salary. Wage. Basic concepts and definitions. Forms of remuneration. Payment according to work. Establishing a minimum wage. |
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Articles 136-145: Procedure, place and terms of payment of wages. Calculation of average wages. Employer's liability for failure to pay wages on time |
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Articles 146-163: Overtime pay. Pay for night work. Payment for downtime. Payment for work on weekends and non-working holidays. Labor standards. |
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Articles 164-177: Cases of provision of guarantees and compensation. Guarantees when sending employees on business trips. Reimbursement of expenses on a business trip. |
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Articles 178-188: Severance pay. Preferential right to remain at work when staffing is reduced. Guarantees and compensation upon liquidation of an organization. |
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Articles 189-195: The procedure for approving internal labor regulations. The procedure for applying disciplinary sanctions. Removal of disciplinary action. |
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Articles 196-208: The procedure for development, approval and application is professional. Standards Student Agreement. Duration, form and content of the student agreement. Apprenticeship fees |
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Articles 209-215: Responsibilities of the employer to ensure safe conditions and labor protection. Medical examinations of workers. Responsibilities of the employee in the field of labor protection. |
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Articles 216-218: Organization of labor protection. State occupational safety management. State examination of working conditions. Labor protection service in the organization. Committees, commissions on labor protection |
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Articles 219-227: Ensuring workers' rights to labor protection. Individual protection means. Distribution of milk and therapeutic and preventive nutrition. Accounting of accidents |
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Articles 228-229: Responsibilities of the employer in the event of an accident. The procedure for forming accident investigation commissions. Time frame for accident investigations |
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Articles 230-231: The procedure for conducting an investigation and preparing accident investigation materials. The procedure for registration and recording of industrial accidents |
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Articles 232-250: Cases of full financial liability of the employer and employee. Determination of the amount of damage caused. Procedure for recovery of damages. |
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Articles 251-264: Peculiarities of regulation of women's labor. Jobs in which the use of women's labor is limited. Maternity leave. Parental leave. |
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Articles 265-281: Peculiarities of labor regulation of organization managers and workers under the age of 18. Jobs where it is prohibited to employ persons under the age of 18 |
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Articles 282-302: Peculiarities of labor regulation for persons working part-time, seasonally and on a rotational basis. Recording working hours when working on a rotational basis |
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Articles 303-312: Peculiarities of labor regulation of persons working in micro-enterprises and for employers - individuals. Regulation of labor of remote workers. |
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Articles 313-327: Peculiarities of labor regulation of persons working in the Far North and equivalent areas. Guarantees and compensations. Salary. Vacations. |
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Articles 327.1-327.7: Peculiarities of labor regulation for workers who are foreign citizens or stateless persons. Documents for employment. |
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Articles 328-330: Peculiarities of labor regulation for transport workers and workers engaged in underground work. Medical examinations, control of working time and rest time. |
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Articles 331-336: Peculiarities of labor regulation of teaching staff. The right to engage in teaching activities. Features of removal from work of teachers. |
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Articles 337-341: Peculiarities of labor regulation for employees of personnel agencies and employees sent to work abroad in representative offices of the Russian Federation. |
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Articles 342-348: Peculiarities of labor regulation for athletes and coaches, as well as employees of religious organizations. Removal of athletes from participation in competitions. |
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Articles 349-351: Peculiarities of labor regulation for other categories of workers: employees of state corporations and state-owned companies, employees of credit institutions and medical workers |
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Articles 352-369: Ways to protect labor rights and freedoms. State control and supervision of compliance with labor legislation. Powers of the Federal Labor Inspectorate. |
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Articles 370-378: Protection of labor rights and legitimate interests of workers by trade unions. The right of trade unions to monitor compliance with labor legislation. |
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Articles 379-397: Self-defense of labor rights by employees. Forms of self-defense. Consideration and resolution of individual labor disputes. The concept of an individual labor dispute. |
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Articles 398-408: Consideration and resolution of collective labor disputes. Putting forward the demands of workers and their representatives. Conciliation procedures. |
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Articles 409-418: Right to strike. Announcing a strike. The body leading the strike. Illegal strikes. Responsibility of workers for illegal strikes. |
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SECTION III. EMPLOYMENT CONTRACT
Chapter 13. TERMINATION OF AN EMPLOYMENT CONTRACT
Article 77. General grounds for termination of an employment contract
The grounds for termination of an employment contract are:
1) agreement of the parties (Article 78 of this Code);
2) expiration of the employment contract (Article 79 of the Code), except for cases where the employment relationship actually continues and neither party has demanded its termination;
3) termination of an employment contract at the initiative of the employee (Article 80 of this Code);
4) termination of an employment contract at the initiative of the employer (Articles 71 and 81 of this Code);
5) transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position);
6) the employee’s refusal to continue working in connection with a change in the owner of the organization’s property, with a change in the jurisdiction (subordination) of the organization or its reorganization, with a change in the type of state or municipal institution (Article 75 of this Code);
7) the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);
8) the employee’s refusal to transfer to another job, required for him in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work (parts three and four of Article 73 of this Code);
9) refusal of the employee to be transferred to work in another area together with the employer (part one of Article 72.1 of this Code);
10) circumstances beyond the control of the parties (Article 83 of this Code);
11) . violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code).
An employment contract may be terminated on other grounds provided for by this Code and other federal laws.
Article 78. Termination of an employment contract by agreement of the parties
An employment contract can be terminated at any time by agreement of the parties to the employment contract.
Article 79. Termination of a fixed-term employment contract
A fixed-term employment contract is terminated upon expiration of its validity period. The employee must be notified in writing of the termination of the employment contract due to its expiration at least three calendar days before dismissal, with the exception of cases where a fixed-term employment contract concluded for the duration of the duties of the absent employee expires.
An employment contract concluded for the duration of a specific work is terminated upon completion of this work.
An employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work.
An employment contract concluded to perform seasonal work during a certain period (season) is terminated at the end of this period (season).
Article 80. Termination of an employment contract at the initiative of the employee (at his own request)
An employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless a different period is established by this Code or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter.
By agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal.
In cases where the employee’s application for dismissal on his initiative (at his own request) is due to the impossibility of continuing his work (enrollment in an educational organization, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts, containing labor law norms, local regulations, terms of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee’s application.
Before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out unless another employee is invited in his place in writing, who, in accordance with this Code and other federal laws, cannot be denied an employment contract.
Upon expiration of the notice period for dismissal, the employee has the right to stop working. On the last day of work, the employer is obliged to issue the employee a work book and other documents related to the work, upon the employee’s written application, and make a final payment to him.
If, upon expiration of the notice period for dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues.
Article 81. Termination of an employment contract at the initiative of the employer
An employment contract can be terminated by the employer in the following cases:
1) liquidation of an organization or termination of activities by an individual entrepreneur;
2) reduction of the number or staff of employees of an organization, individual entrepreneur;
3) inconsistency of the employee with the position held or the work performed due to insufficient qualifications confirmed by certification results;
4) change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);
5) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;
6) a single gross violation of labor duties by an employee:
A) absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) ;
b) the appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication;
V) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;
G) committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;
d) violation of labor safety requirements by an employee established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (work accident, accident, catastrophe) or knowingly created a real threat of such consequences;
7) commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him on the part of the employer;
7.1) failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or submit incomplete or unreliable information about his income, expenses, property and property obligations, or failure to provide or provision of knowingly incomplete or unreliable information about income, expenses, property and property obligations of their spouse and minor children, opening (having) accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, possession and (or) use of foreign financial instruments by an employee, his spouse and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer;
8) the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;
9) making an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;
10) a single gross violation by the head of the organization (branch, representative office) or his deputies of their labor duties;
11) the employee submits false documents to the employer when concluding an employment contract;
12) lost its power.
13) provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization;
14) in other cases established by this Code and other federal laws.
The procedure for certification (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers.
Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job) which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.
Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer.
It is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary incapacity for work and while on vacation.
Article 82. Mandatory participation of the elected body of the primary trade union organization in the consideration of issues related to the termination of an employment contract at the initiative of the employer
When making a decision to reduce the number or staff of employees of an organization, individual entrepreneur and the possible termination of employment contracts with employees in accordance with paragraph 2 of part one of Article 81 of this Code, the employer is obliged to notify the elected body of the primary trade union organization in writing about this no later than two months in advance before the start of the relevant activities, and if the decision to reduce the number or staff of employees may lead to mass dismissal of workers - no later than three months before the start of the relevant activities. The criteria for mass layoffs are determined in industry and (or) territorial agreements.
Dismissal of employees who are members of a trade union on the grounds provided for in paragraphs 2, 3 or 5 of part one of Article 81 of this Code is carried out taking into account the reasoned opinion of the elected body of the primary trade union organization in accordance with Article 373 of this Code.
When conducting certification, which may serve as a basis for dismissal of employees in accordance with paragraph 3 of part one of Article 81 of this Code, a representative of the elected body of the relevant primary trade union organization must be included in the certification commission.
A collective agreement may establish a different procedure for the mandatory participation of the elected body of the primary trade union organization in the consideration of issues related to the termination of an employment contract at the initiative of the employer.
Article 83. Termination of an employment contract due to circumstances beyond the control of the parties
An employment contract is subject to termination due to circumstances beyond the control of the parties:
1) conscription of an employee into military service or sending him to an alternative civilian service that replaces it;
2) reinstatement of an employee who previously performed this work by decision of the state labor inspectorate or court;
3) failure to be elected to office;
4) convicting the employee to a punishment that precludes the continuation of his previous work, in accordance with a court verdict that has entered into legal force;
5) recognition of the employee as completely incapable of working in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation;
6) death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as deceased or missing;
7) the occurrence of emergency circumstances that prevent the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a government body of the relevant constituent entity of the Russian Federation;
8) disqualification or other administrative punishment that precludes the employee from fulfilling his duties under the employment contract;
9) expiration, suspension of validity for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, right to carry a weapon, other special right) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails entails the impossibility of the employee fulfilling his duties under the employment contract;
10) termination of admission to government confidentiality if the work performed requires such access;
11) reversal of a court decision or cancellation (recognition as illegal) of a decision of the state labor inspectorate to reinstate an employee at work;
12) lost its power.
13) the occurrence of restrictions on engaging in certain types of labor activity established by this Code, other federal law and excluding the possibility of an employee fulfilling his duties under an employment contract.
Termination of an employment contract on the grounds provided for in paragraphs 2, 8, 9, 10 or 13 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (either a vacant position or a job that corresponds to the employee’s qualifications, or and a vacant lower position or lower paid job) that the employee can perform taking into account his state of health.
In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
Article 84. Termination of an employment contract due to violation of the provisions established by this Code or other fed. law rules for concluding an employment contract
The employment contract is terminated due to violation of the provisions established by this Code or other federal regulations. by law the rules for its conclusion (clause 11 of part one of Article 77 of this Code), if violation of these rules excludes the possibility of continuing work, in the following cases:
Concluding an employment contract in violation of a court verdict depriving a specific person of the right to occupy certain positions or engage in certain activities;
Concluding an employment contract to perform work that is contraindicated for this employee due to health reasons in accordance with a medical certificate issued in the manner established by the Federal Law. laws and other regulatory legal acts of the Russian Federation;
Absence of an appropriate document on education and (or) qualifications, if the work requires special knowledge in accordance with federal law or other regulatory legal acts;
Conclusion of an employment contract in violation of a resolution of a judge, body, official authorized to consider cases of administrative offenses, disqualification or other administrative punishment that precludes the possibility of an employee fulfilling duties under an employment contract, or concluding an employment contract in violation of established federal laws. laws of restrictions, prohibitions and requirements relating to the involvement in work of citizens dismissed from state or municipal service;
Concluding an employment contract in violation of the restrictions on engaging in certain types of labor activity established by this Code or other federal law;
In other cases provided for by federal laws.
In the cases provided for in part one of this article, the employment contract is terminated if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job) which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
If a violation of the rules for concluding an employment contract established by this Code or other federal law is not due to the fault of the employee, then the employee is paid severance pay in the amount of average monthly earnings. If a violation of these rules is due to the fault of the employee, then the employer is not obliged to offer him another job, and severance pay is not paid to the employee.
Article 84.1. General procedure for registering termination of an employment contract
Termination of an employment contract is formalized by order (instruction) of the employer.
The employee must be familiarized with the order (instruction) of the employer to terminate the employment contract against signature. At the request of the employee, the employer is obliged to provide him with a duly certified copy of the specified order (instruction). In the event that an order (instruction) to terminate an employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it against signature, a corresponding entry is made on the order (instruction).
The day of termination of the employment contract in all cases is the last day of work of the employee, with the exception of cases where the employee did not actually work, but after him, in accordance with this present day. Code or other federal by law, the place of work (position) was preserved.
On the day of termination of the employment contract, the employer is obliged to issue the employee a work book and make payments to him in accordance with Article 140 of this Code. Upon written application by the employee, the employer is also obliged to provide him with duly certified copies of documents related to work.
Note: the employer is also obliged to issue the employee on the day of termination of work a certificate of the amount of earnings for the two calendar years preceding the year of termination of work.
An entry in the work book about the basis and reason for termination of the employment contract must be made in strict accordance with the wording of this Code or other federal law and with reference to the relevant article, part of the article, paragraph of the article of this Code or other federal law.
If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book.
The employer is also not responsible for the delay in issuing a work book in cases where the last day of work does not coincide with the day of registration of termination of employment relations upon dismissal of an employee on the basis provided for in subparagraph “a” of paragraph 6 of part one of Art. 81 or clause 4 of part one of Art. 83 present Code, and upon dismissal of a woman whose employment contract was extended until the end of pregnancy or until the end of maternity leave in accordance with part two of Art. 261 present Code. Upon written request from an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee’s application.