Grounds for termination of an employment contract. How to terminate an employment contract at the initiative of an employee

When performing work duties, there are situations when the parties to the labor relationship cannot find a “common language”. As a result, everything ends in the termination of professional relationships. The initiator can be any of the parties. The law requires that the interests of both the employee and the employer be respected and protected.

Legal requirements

The legislative framework approves and allows you to choose from a large number of grounds the desired position for completing your job duties. The list of grounds for termination of an employment contract at the initiative of the employee is fixed and explained by the provisions of Article 80 of the Labor Code of the Russian Federation.

A more familiar sound is termination of an employment contract at the initiative of the employee, which is enshrined in the article, dismissal at will. This is the right of every person to freedom in choosing the object of his knowledge and skills, organizing work, collective conditions, changing the type of activity, which is legally established.

Conditions for termination of an employment contract at the initiative of the employee:

Regulations;
Payment of earned material resources.

Article (80 of the Labor Code of the Russian Federation) establishes the procedure and procedure for terminating an employment contract at the initiative of the employee. A written notice of the decision to terminate employment is sent to the manager two weeks (14 days) in advance. The warning is issued in writing. An application for termination of an employment contract at the initiative of the employee is submitted directly or through a personnel officer.

Registration takes place as incoming documentation, and the countdown of the final date of dismissal begins. It is clear that the chosen standard period for terminating an employment contract on the initiative of the employee is important and necessary for both parties:

Employer: there is time to find a replacement for the vacant position;
Applicant: there is time to think about the decision made, to find a new object of working relations.

The countdown begins on the day following registration of the application.

Under this provision, a number of situations arise in practice:

Is it possible to send an application by telegram or post?
Is it possible to terminate a fixed-term employment contract at the initiative of the employee?
Does the applicant have the right to terminate the relationship immediately after registration of the document?
Can a person have his or her resignation application refused?

Termination of an urgent TD is enshrined in Article 79. The applicant receives a written warning. Early termination of an employment contract at the initiative of the employee, Article 73, is used if the worker or specialist does not accept the new working conditions changed for objective reasons, and there is no other workplace in the organization.

There are no official explanations for emerging situations, but a competent lawyer will be able to help; in difficult situations, he will correctly justify the position of the dissenting party in court.

Restrictions and disputes

You need to know that there are categories of employers who have restrictions on their rights. According to the Criminal Executive Code of the Russian Federation (Article 40, Part 3), convicts assigned to correctional labor are prohibited from dismissal on their own initiative. Their wishes are not taken into account, the action will be a violation of the court order. Written permission from the structure that imposed the labor punishment is required.

The practice of considering controversial issues shows that it is important to understand how to act correctly when leaving a job. He must know that he has the secured right to withdraw his application and continue to work. An exception is the situation when a qualified specialist is invited to take his professional place. The right to cancel an application for termination of an employment contract on the initiative of the employee, based on the legislation of the Russian Federation, is automatically lost.

Unjustified situations

Sometimes termination of an employment contract at the initiative of the employee is unjustified: it is concluded under duress, forced resignation, impossible conditions for performing job duties, psychological discomfort. To reduce the number of illegal situations and precedents, the law comes to the protection of each participant (more often this is required for the employee).

Sometimes, if the established notice period has expired, the employment contract is not terminated. No order or other instructions are issued, the applicant does not request dismissal, and the relationship continues.

An option when, before the deadline for reviewing documents, the applicant does not change his decision to leave, the manager does not have the right to renew his employment relationship. No motives can become the basis for an extension or delay in production.

There are quite a lot of motives:

equipment was not delivered (for example, in the form in which it was provided);
the provided residential premises were not returned;
The funds spent on training (retraining) were not entered into the company's cash register.

Any reasons for terminating an employment contract at the initiative of an employee cannot be violated by the employer and relieve him from the obligation to dismiss.

The law provides for the following legal cases:

Impossibility of work activities in connection with obtaining full-time education;
Reaching retirement age;
Changing of the living place;
Violation by the employer of the promised working conditions.
Material claims, demands for the return of funds paid, advances, social benefits, become the subject of a court decision.
Documentation and procedure

Termination of an employment contract at the initiative of the employee and the employer requires certain documentary and production procedures.

The applicant must continue to work while the application is being processed. While the document is being reviewed by management, orders are being issued, and the worker is performing all assigned operations. In case of violation, absenteeism, or reduction of standards, the manager may terminate the contract on other grounds not in favor of the applicant. When the deadline for office work expires, the initiator may stop working.

Termination of an employment contract at the initiative of the employee is necessarily confirmed by the order. The HR specialist hands the applicant a work book and the originals submitted upon employment. In the work book, all necessary entries are made, and the article of termination of the relationship must be indicated. The form for terminating an employment contract at the initiative of the employee has an established template. He will help in preparing all the necessary regulations.

Based on the date of last return to work, the final cash payment is made. The maximum number of days for issuing a calculation is three. Difficult situations arise when dismissal overlaps with days of incapacity. The manager is obliged to postpone the date of dismissal until the end of the sick leave.

The general procedure for registering termination of an employment contract is regulated. This article describes an algorithm of actions that must be followed.

Termination of an employment contract is formalized by order (instruction) of the employer. Usually a unified form is used, which is approved.

The employee must be familiar with the order against signature. A certified copy of the order can be handed over to the employee at the request of the employee.

According to general rules, the day of termination of an employment contract is always the last day of work of the employee, with the exception of cases where the employee did not actually work, but retained his place of work.

On the day of termination of the employment contract, the employer is obliged to:

issue a work book to the employee (if the employee is not at work on the day of dismissal, he is sent a notice of the need to pick up the work book or agree to have it sent by mail);
make a settlement with it in accordance with;
upon written request of the employee, issue certified copies of documents related to work.

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

There has long been a dispute among HR specialists regarding which wording to use: “the employee is fired,” “the employment contract is terminated,” or “the employment contract is terminated”? The Labor Code does not give a clear answer to this question, so employers often choose the wording at their own discretion.

Grounds for dismissing an employee

1. Dismissal during the probationary period

The establishment of a probationary period when hiring is regulated by Art. 70 TK. It provides a list of employees for whom a probationary period is not established:

persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;
pregnant women and women with children under the age of one and a half years;
persons under the age of 18;
persons who have received secondary vocational education or higher education in state-accredited educational programs and are entering work for the first time in the acquired specialty within one year from the date of receiving vocational education at the appropriate level;
persons elected to an elective position for paid work;
persons invited to work by way of transfer from another employer as agreed between the employers;
persons concluding an employment contract for a period of up to two months;
to other persons in cases provided for by the Labor Code, other federal laws, and a collective agreement.

The probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law.

During the probationary period, HR officers must record any deviations in the work of the new employee using memos and reports. When the probationary period ends and the employer evaluates the newcomer’s performance as unsatisfactory, he must document the validity of his decision.

The employer may terminate the employment contract before the expiration of the probationary period if the result is unsatisfactory, but he will need to notify the employee in writing (in notification format) no later than three days in advance, indicating the reasons that served as the basis for making such a decision. At the same time, you need to be prepared for the fact that the employee has the right to appeal this decision in court.

If an employee refuses to sign a notice, a corresponding act is drawn up, which records the fact that the employee has read the notice and refused to sign it. Based on the notification, order T-8 is issued to terminate the employment contract. If an employee refuses to sign an order, then at the bottom of the order the personnel officer writes by hand that the employee was familiar with the order, but refused to sign, or a corresponding act is drawn up. In any case, it is important to record the fact that the employee has read the order.

An employee can also terminate an employment contract at his own request during a probationary period. To do this, he needs to submit an application, but he does not have to indicate the reason for dismissal. The notice period in this case, according to Art. 71 TK, will be three calendar days. The dismissal itself is made on the basis of (termination of the employment contract at the initiative of the employee).

2. Dismissal at your own request

Which article of the Labor Code should you refer to: .

An employee has the right to terminate an employment contract at his own request, but he must notify the employer in writing no later than two weeks in advance, unless a different period is established by the Labor Code or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter. By agreement of the parties, this period may be reduced.

In cases where dismissal at the initiative of the employee is due to the impossibility of continuing his work, the date of dismissal can be set independently. In Art. 80 of the Labor Code contains the grounds when this option is possible: enrollment in an educational institution, retirement, established violation of labor legislation by the employer, etc. Labor relations practice shows that there are many more reasons for reducing notice periods. For example, an illness that prevents the continuation of this work, provided there is an appropriate medical report; moving to another area ().

The list of valid reasons for dismissal on the day the application is submitted can be enshrined in the internal labor regulations of the organization or in the collective agreement.

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 the Labor Code and other federal laws, cannot be denied an employment contract. For example, in Art. 64 of the Labor Code states that it is prohibited to refuse to conclude an employment contract to employees invited in writing to work as a transfer from another employer.

Upon expiration of the notice period for dismissal, the employee has the right to stop working. On the last day of work, the employer must:

issue the employee with a work book;
issue other work-related documents upon written request from the employee;
make a settlement with him.

How to prepare documents?

When an employee has the right to reduce the notice period, he writes a dismissal date, which is binding on the employer, that is, he cannot unilaterally change this date on his own. Sometimes an employee is not entitled to benefits, but asks to be fired early. For example, he writes a statement on May 15, and asks to fire him on May 19. In this case, the employer can act under Art. 80 TK. If he agrees to dismiss earlier, he accepts the application and issues an order. If he does not agree, then he draws up a notice for the employee, in which he explains that he cannot accept such a statement on the basis of Art. 80, which requires two weeks notice and asks to write a new application.

Based on the order, an entry is made in the work book (this is done on the last day before the book is issued, so that the employee immediately signs in the book for recording the movement of work books).

3. Dismissal by agreement of the parties

Which article of the Labor Code should you refer to: .

The basis for dismissal “by agreement of the parties” was included in the Labor Code in 2006, and Art. 78 of the Labor Code, which is devoted to this issue, contains only one sentence: “An employment contract can be terminated at any time by agreement of the parties to the employment contract.” No matter how such a basis for dismissal is perceived, one must proceed, first of all, from the fact that the word “agreement” itself indicates a peaceful basis for termination of the employment relationship.

Despite the fact that the agreement is not provided for by the Labor Code, it is a very important document, since it specifies the conditions under which the parties terminate the employment relationship.

4. Dismissal due to expiration of the employment contract

Which article of the Labor Code should you refer to: .

The grounds on which a fixed-term employment contract is concluded are stated in. Most often - for the duration of the duties of an absent employee, who retains his place of work.

If a fixed-term employment contract is concluded with an employee, then the expiration date of the employment contract is associated with a specific date, which is specified in the contract itself. Three days before this date, the employer is obliged to warn the employee about the expiration of the period by means of a notice.

Sometimes the expiration date of an employment contract cannot be established in advance; in this case, the contract does not indicate the expiration date, but a condition. In this case, there is no need to notify about the termination of the employment contract, since the very fact of the main employee returning to work means the termination of the employment contract of the employee who replaced him.

In Art. 193 of the Labor Code states how to formalize a disciplinary sanction. The employer's action algorithm in this case is quite clear. First of all, when a disciplinary violation is discovered, an act is drawn up, which records the fact of the violation, all the circumstances under which it was discovered, the date, and witnesses. Then a written explanation is required from the employee (the deadline for providing the document is two working days). Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action. If there is or is no explanation, the employer makes a decision based on its assessment of the employee’s actions.

The timing of the application of the penalty must be taken into account - no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees. A disciplinary sanction cannot be applied later than six months from the date of commission of the offense.

A report on the commission of a disciplinary offense is sent to the director (the person who can make decisions on this issue). And the employee is given a notice against signature with a requirement to provide a written explanation. If he does not provide it, then an act is drawn up.

If misconduct is proven, disciplinary action is taken. In case of “mild” violations, the employee is first reprimanded. At the same time, the order to apply a disciplinary sanction contains links to all documents that confirm the grounds for applying the sanction.

7. Dismissal of a long-term absent employee

The legislation does not provide clear tools for formalizing such dismissals. Problems often arise because the employer does not know how to treat a person's prolonged absence from work if there is no information about the reasons for this absence. At the same time, he does not have the right to dismiss an employee until a violation of labor legislation is established.

Registration of such a situation begins with drawing up an act for each working day stating that the person is absent from work for an unknown reason (in the first act the time of absence is indicated “from ... to”, and in the rest - “during the entire working day”).

Acts on the absence of an employee should first be drawn up daily, in case of long-term absence - as of the day of submission of the next time sheet.

Letters are sent to the employee asking for an explanation of the reasons for failure to appear (they must be sent by registered mail with a list of attachments).

If there is no news from the missing employee for more than a year, the employer, guided by the provisions of Art. 42 of the Civil Code of the Russian Federation and Chapter 31 of the Code of Civil Procedure of the Russian Federation, may, through the court, recognize the missing employee as missing. According to Art. 42 of the Civil Code of the Russian Federation, a citizen may, at the request of interested parties, be recognized by the court as missing if during the year there is no information about his place of residence at his place of residence. If the court satisfies the stated requirements to recognize the missing employee as missing, the employer will be able to terminate the employment contract with this employee under clause 6 of Part 1 of Art. 83 Labor Code of the Russian Federation.

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Today, everyone who is employed knows how important all the nuances that are associated with work are. First of all, this is explained by the fact that this area is clearly and completely regulated by law, so it is quite difficult to move away from the practice that has developed over many years.

It is quite rare that problems arise throughout the entire workflow. As practice shows, most issues arise immediately at the moment when one of the parties wants to break the employment relationship. Such situations can cause a lot of headaches for both the employer and the employee.

General provisions on the procedure for terminating an employment contract

It is worth noting that dismissal in the legal field is perceived as termination of the employment contract. Such actions require certain actions from both parties to such an agreement. Therefore, it is important to become familiar with the process of severing labor relations.

If you follow experience, quite often employees go to court for wrongful dismissal. In this situation, we are talking about the fact that the employer did not adhere to the procedure provided for by the contract or the Law. Therefore, it is important to study the process of terminating the agreement and the consequences that both parties expect after such actions.

Therefore, we invite you to familiarize yourself with the information that details the dismissal procedure. The regulatory and legal framework in this area is quite large and is not always clear to those who do not deal with jurisprudence in everyday life. Therefore, we have selected the most important aspects and tried to present them in a simple form. If you are faced with such a situation, be sure to read the article.

The concept of an employment contract and its termination

First of all, it is necessary to consider the key concepts that will appear in our article, since without this it will sometimes be difficult to understand what exactly we are talking about. First, let's define what an employment contract is. In accordance with current legal norms, this is a bilateral agreement between an employer and an employee to provide a certain position and perform certain duties. That is, it is a document that regulates relationships.

It is worth noting that not all organizations have recently drawn up such contracts. Some companies choose to discard such actions. This is due to the fact that the company is required to pay taxes for each employed employee. Therefore, unscrupulous employers simply want to save money. But here it is worth understanding that, first of all, this is illegal, because such an obligation is directly enshrined in regulatory legal acts. Secondly, such actions directly protect the rights of both parties, since they regulate their relationships in detail.

That is, before you start work, ask your boss to draw up an employment contract. This will help you protect your rights upon dismissal. As we have already found out, payment from work is called termination of the employment contract. This procedure is a certain set of actions, the result of which will be the termination of all rights and obligations provided for in the employment contract between these parties.

The most important thing in such a case is that the procedure for terminating the agreement must necessarily comply with the norms of the Law. Otherwise, such actions will be declared invalid or appealed in court.

It is worth noting that all actions that need to be taken to terminate the relationship between employer and employee can be specified in the contract. But quite often such documents contain a reference norm, which directly indicates that the reasons for such actions may be situations that are provided for by the legislative framework. In this case, you will certainly have to become familiar with the regulatory framework.

Grounds for termination of an employment contract

Like any other legal action, the termination of a work relationship requires specific reasons to be stated. In this case, such provisions are directly enshrined in regulatory legal acts. The legislator provided that these include:

mutual consent of both parties to the contract;
the end of the period for which such a contract was drawn up;
termination of relations at the initiative of the employer;
termination of relations at the initiative of the employee;
using the procedure for transferring an employee to another organization or to another position;
termination of the agreement due to changes in the form, structure, operating principle of the company;
unilateral refusal to enter into a new contract due to changes in working conditions;
refusal to draw up a new contract due to a change of place of work;
due to circumstances that do not depend on the will of all parties to the agreement;
inconsistency of the terms of the contract with legal norms, which make it impossible to continue cooperation.

Such provisions are complete and it is on their basis that the employment contract can be terminated. Among them are the most common ones. This is the consent of both parties and the initiative of each of the participants in such a contract. Therefore, we suggest that you familiarize yourself with each of these situations in more detail.

Termination of an employment contract by an employee

This form in everyday life is called “at one’s own request.” It is worth noting that in such situations there are also certain conditions under which the employee has the right to use this option for dismissal. Today the Labor Code includes:

impossibility of continuing further cooperation (for example, he is enrolled in an educational organization or goes on retirement due to reaching a certain age);
the employer violated the working conditions stipulated by the contract, federal laws, and local regulatory legal acts.

In this case, if a person sees that his situation falls under such criteria, he has every right to submit a special statement to his employer, which will indicate his request to terminate the employment contract indicating the reason for such dismissal.

Termination of an employment contract by an employer

Quite often it happens that the initiative to terminate the employment relationship comes directly from the organization itself. In such a situation, the head or head of the human resources department needs to become familiar with the reasons that may be the basis for taking such actions. The legislator included:

termination of activity by a legal entity or individual entrepreneur who is specified in the employment contract as an employer;
reduction in the number of employees at the enterprise;
insufficient knowledge and skills of the employee for the position he occupies and the work he performs in the labor process;
changes in the ownership of property used in the employer’s activities;
failure by the employee to fulfill his labor duties as specified in the contract. At the same time, such actions must occur repeatedly or for one of them disciplinary liability was imposed on the employee;
one-time violation of the rules of work or failure to fulfill one’s duties:

1. For absence from work for the entire shift, its duration does not matter, without good reason.

2. An employee appears at the workplace drunk or under the influence of drugs.

3. Dissemination of statements that constitute a secret protected by law.

theft of property or material assets that belong to the organization;
committing an immoral act by employees whose obligations include educational functions.

These are the most common reasons. As a rule, it is on their basis that the employer builds the procedure for dismissing an employee.

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

It is especially important to outline the process of terminating the relationship between employee and employer. Such actions must be carried out strictly in accordance with the law, otherwise the person will be held liable for unlawful acts.

Depending on who exactly is terminating the agreement, the procedure is established. That is, there is a direct connection to the subject. Therefore, it is worth considering them separately. Let's start with the employee's initiative.

If an employee has a desire, and it coincides with the conditions, he can provide his employer with a special statement, which will directly indicate the need to resign. Such a document must contain:

names of the parties;
main text;
indication of the reason;
signature.

First of all, indicate the name of the organization and the employer. You need to indicate your full initials; it is best to copy them from the employment contract itself.

The main text contains the title of the document. Here, in the middle of the sheet, you must indicate “Application for resignation at your own request.” Next comes the petition itself to terminate the employment contract. You need to indicate when, where and by whom it was signed. In addition, if it had a number, then you also need to write it down.

The indication of the reason must comply with the law. That is, it is necessary to write one of the reasons discussed in the previous sections of the article. In addition, you can directly link to a legal act by indicating its name and article number.

At the end, the document must be certified by the signature of the employee himself. The date of its submission to the manager or authorized person is also entered. If you write an application earlier, you do not need to set a date. It is best to indicate such a number before the submission itself. In order to view such a document, you can download a sample application for termination of an employment contract:

Once such a document is ready, it must be submitted to the human resources department or employer. He must accept it. Next comes a period characterized by special rights and obligations of the parties.

Thus, over the next 14 days, the employee is still required to carry out his usual work activities. They are paid according to the same regime that existed throughout the entire employment relationship between the parties. On the last day of this period, the employer provides him with a work book and other documents that were submitted to him upon hiring.

There is one more nuance. During this two-week period, the employee has the right to withdraw his application at any time. At the same time, the employer does not have the right to refuse his employee and continue the employment relationship as usual. That is, if a person suddenly changes his mind and wants to leave his job, then he needs to contact the employer and withdraw his request to terminate the contractual relationship.

But there is also a certain exception here. So, if during such a period the employer hired another person to his workplace, who, according to the Law, belongs to the category of people who have the right to the prerogative in obtaining a job, then it will not be possible to withdraw the application. But, without fail, an employment contract must already be concluded with him, otherwise such an agreement will not be recognized.

There are categories of persons who, according to the Law, are allowed to change their decision after 14 days have passed. Thus, military personnel who wrote a statement of their own free will and the reason for it was retirement are given three months after dismissal to regain their position. At the same time, such a workplace cannot be worse than the one it had before retirement.

The procedure for terminating an employment contract at the initiative of the employer

Termination of an employment contract at the initiative of the employer has its own characteristics, which are primarily related to its administrative functions. In addition to the special conditions mentioned above, there is also a certain procedure that is directly provided for by law:

agreeing on all conditions for terminating a work contract with employees of certain categories;
studying the category of workers who cannot rightfully be dismissed;
payment of severance pay as compensation for termination of employment relations between the parties.

In addition, there are situations when the employer cannot independently decide on the issue of further termination of cooperation with a certain person. In such situations, he will definitely need advice from the Trade Union. Today the category of such cases consists of:

dismissals when the number of employees in the organization is reduced;
termination of an employment contract due to insufficient competence of the employee in the area where he performs his duties;
termination of the relationship as a result of repeated violation by the employee of the rules of conduct and internal regulations, commission of a disciplinary offense.

There is a special procedure for these situations. In making such decisions, the employer cooperates with representatives of the Trade Union. At this stage, before the final verdict is made, he does not have the right to terminate the employment relationship with the employee.

Particular attention should be paid to pregnant women, because, as practice shows, the dismissal of such persons is most often the reason for litigation. Thus, the law provides that an organization or enterprise of any form of ownership has absolutely no right to terminate employment relations with such people. The only exception would be the complete liquidation of the company itself, which simply makes further cooperation impossible.

If the employment contract with a certain employee is terminated, a special notice of termination of the employment contract is issued. It takes the form of an order from a body authorized for such actions within the structure of the company or an official. Such a document must necessarily contain the name of the person being fired and the very reason for such actions. In addition, the date of adoption of such a document must be indicated.

The law provides that, at the initiative of the employer, dismissal can occur no earlier than 2 months after the employee is informed of this fact. During this period, work continues as usual. On the last day, the employee is given a work book and other documents that were required from him to conclude an employment contract.

If an employee does not agree with his employer’s decision or considers it illegal, he has every right to go to court to seek justice. Recently, this procedure has been very popular. First of all, this is due to the fact that employment contracts, which are drawn up at the initial stage of the relationship, as a rule, are not always drawn up correctly. This gives the employee the opportunity to appeal an unlawful decision to the Themis authorities, based on the fact that the employment contract is incorrect.

That is, the timing of termination of the employment contract at the initiative of both parties will be completely different. This must be taken into account and observed, since quite often such cases occur in the courts. If a party does not adhere to the terms specified in the legislative framework, this will become the reason for recognizing the illegality of termination of the employment contract.

Termination of a fixed-term employment contract

There is a category of contractual relations in the field of labor, which are secured by contracts, where the duration of the relationship between the parties is clearly established. According to the Law, such terms do not exceed five years and regulate only certain categories of cases.

Such agreements have a certain procedure for termination. In this situation, everything directly depends on the conditions that were specified in such a contract. So, if it was concluded, for example, for three years, then after this period it loses its legal force. At the same time, the employer is obliged to warn his employee about this in advance. In addition, such actions must be carried out no later than three days before the contract ends.

If the contract was drawn up for certain work, then its completion will be characterized directly by the final completion of such work. That is, here the fact of completion of the relationship will be the very fulfillment of all the conditions provided for by the employment agreement.

If the contract was drawn up to replace another employee who, due to certain circumstances, could not perform his duties, then it terminates when such employee takes his previous position. Another category consists of seasonal work. In this situation, they also end with the fulfillment of their duties.

That is, this category of breaking off relations is characterized by its automaticity, since it has certain indications of the time frame for cooperation, which often simplifies the task for both parties. But it is worth noting that both parties to the employment contract have every right to use those types of dismissal that were provided for in the previous sections.

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. .

Secures the unconditional right of the employee to terminate the employment contract at his own request unilaterally. This right does not depend on the type of employment contract, the nature of the labor function performed by the employee, or the legal status of the employer.

An employee has the right to terminate at his own request any employment contract, including a fixed-term employment contract, before its expiration, and at any time. At the same time, the possibility of terminating an employment contract before its expiration at the initiative of the employee is not related to the presence of valid reasons. He is only obliged to notify the employer about this in writing no later than two weeks in advance.

The head of the organization is obliged to notify the employer (the owner of the organization's property or his representative) in writing about the early termination of the employment contract no later than one month in advance (see Article 280 of the Labor Code).

An employee who has entered into an employment contract for a period of up to two months, as well as an employee engaged in seasonal work, are required to notify the employer in writing three calendar days in advance of the early termination of the employment contract (see Article 292, Labor Code). The specified period begins the next day after the employer receives the employee’s resignation letter. So, if an employee submitted a letter of resignation on June 1, then the two-week period expires on June 15. This day will be the last day of work (day of dismissal) (see commentary to Article 84.1).

2. The employee’s will to terminate the employment contract must be expressed in writing. A written form of resignation is required. An employee's oral statement about termination of an employment contract cannot serve as a basis for dismissal. The obligation of the employee provided for by the Labor Code to notify the employer of termination of the employment contract at his own request no later than two weeks (the head of the organization - one month in advance) means that he can do this for a longer period. Two weeks (month) is the minimum period within which an employee is obliged to notify the employer of his desire to terminate his employment relationship.

3. By agreement between the employee and the employer, the employment contract may be terminated before the expiration of the established notice period. Moreover, in this case, the basis for dismissal will be the employee’s own desire, and not the agreement of the parties provided for in paragraph 1 of Art. 77 TK. Termination of an employment contract by agreement of the parties is possible only when the employer’s consent to dismissal has legal significance and without such consent the employment contract cannot be terminated (see commentary to Article 78).

If the employee himself has expressed a desire to terminate the employment relationship and asks to be dismissed before the expiration of the established notice period, the employer’s consent to the termination of the employment contract itself does not play a legal role. It only matters for determining the specific date of dismissal.

If the parties have agreed to terminate the employment contract before the expiration of the established notice period, the employment contract is terminated on the day determined by the parties (clause 3, part 1, article 77 of the Labor Code).

In this case, it is very important not only the presence of the employee’s will to resign on his own initiative, but also the form of expression of such will. The agreement of the parties on early (before the expiration of a two-week period) termination of the employment contract must be expressed in writing, for example, in the form of an employer’s resolution on the application of the employee who requested dismissal from an earlier date.

An oral agreement between the parties cannot serve as such evidence. Judicial practice also testifies to this. Thus, the Supreme Court of the Republic of Buryatia rightfully recognized as unfounded the decision of the Railway Court, which refused gr. L. to be reinstated under the following circumstances.

On February 15, 2006, L. applied to her employer to resign of her own free will as of February 16, 2006, but the application was not signed. According to the employer, she will be fired after another candidate is found for her position. L. continued to work, but on February 20, 2006 she broke her arm and was hospitalized. After being discharged, she found out that she had been fired since February 16, 2006.

The Railway Court, where L. filed a claim for reinstatement at work, denied her claim, citing the fact that the employment contract was terminated within the period determined by the parties.

In overturning the decision of the Railway Court, the Supreme Court of the Republic of Buryatia quite correctly pointed out that in L.’s application there is no employer’s resolution that would confirm his consent to terminate the employment contract before the expiration of the notice period for dismissal, and, therefore, on the basis of this application it is impossible to make the conclusion that there was a bilateral agreement to terminate the employment contract before the expiration of the notice period for dismissal * (59) .

If the employer does not agree to terminate the employment contract before the expiration of the notice period, the employee is obliged to work for the established period. Early termination of work in this case violates labor discipline. Stopping work without notice of dismissal will also be a violation of labor discipline. An employee who leaves work without permission may be fired for absenteeism.

In turn, the employer does not have the right to dismiss the employee until two weeks have passed after filing an application to terminate the employment contract. This rule also applies to cases where the employee does not indicate a specific date of dismissal in the application. In other words, if in the resignation letter the employee did not indicate the date of termination of employment rights, then the general rule applies, i.e. dismissal takes place two weeks after submitting the application.

Judicial practice also comes from this. Thus, the Nizhny Novgorod Regional Court, considering the case of the voluntary dismissal of N., who filed an application without indicating a specific date of dismissal (i.e., did not intend to terminate the employment contract before the expiration of two weeks and did not raise the question of reaching an appropriate agreement with the employer), indicated that under such circumstances the employment contract could be terminated by the employer only upon expiration of the notice period, i.e. after two weeks from the date of filing the application * (60).

A similar decision was made by the Ryazan Regional Court, which recognized as justified the decision of the court of first instance to reinstate A., who on August 8, 2006 submitted a letter of resignation at his own request, assuming that he would be fired after a two-week period. However, he was fired by order of August 9, 2006 * (61)

4. In cases where the employee’s application for resignation at his own request is due to the inability to continue working (enrollment in an educational institution, retirement, sending a husband (wife) to work abroad, to a new place of duty), the employer is obliged to terminate the employment contract in the period specified in the employee’s application. The same obligation arises in the event of a violation by the employer of labor legislation and other regulatory legal acts containing labor law norms, local regulations, the terms of a collective agreement, agreement or employment contract.

It is necessary to keep in mind that these violations can be established, in particular, by bodies exercising state supervision and control over compliance with labor legislation, trade unions, labor dispute commissions, and the court (clause 22 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17 2004 N 2).

5. An employee can notify the employer of termination of the employment contract at any time, including during the period when he is absent from work for some reason (for example, during a period of temporary disability, while on vacation, on a business trip, etc. ). This is due to the main purpose of the notice of dismissal: to give the employer the opportunity to select a new employee. By notifying the employer about dismissal in advance, the employee provides him with such an opportunity. It doesn’t matter whether he is at work, on vacation or sick.

From the moment the resignation is submitted, the employer has the right to begin searching for a new employee. Therefore, all this time from the date of filing the application for resignation at one’s own request is counted towards the notice period for dismissal. If an employee on vacation requests dismissal before the expiration of the statutory notice period, and the employer agrees, dismissal is carried out within the period requested by the employee.

The employer has the right to terminate the employment contract with the employee upon expiration of the notice period for dismissal and in the event that the employee falls ill during the notice period, since the period of illness does not suspend the period after which the employee is subject to dismissal. Dismissal of an employee at his own request in accordance with his application is also possible during a period of temporary incapacity for work, since the initiative for dismissal comes from the employee, and not from the employer.

6. The employee’s decision to resign of his own free will must be an act of his free will and express a real desire to terminate the employment relationship. In this regard, the Plenum of the Supreme Court of the Russian Federation, in Resolution No. 2 of March 17, 2004, specifically explained that termination of an employment contract at the initiative of an employee is permissible in cases where filing a resignation letter was his voluntary expression of will. If the plaintiff claims that the employer forced him to submit a resignation letter of his own free will, then these circumstances are subject to verification and the responsibility to prove them rests with the employee (paragraph “a”, paragraph 22).

Any pressure from the employer, including the threat to fire him on his own initiative in cases where the employer had any reasons for this, can be considered as coercion to dismiss an employee at his own request. Otherwise, we cannot talk about termination of the employment contract at the initiative of the employee.

The Laginsky District Court of Elista came to this conclusion quite correctly, satisfying the claim for reinstatement of the citizen. U., who submitted her resignation of her own accord under pressure from her manager, who threatened to “ruin her work book” by dismissing her “under article” for losing a report and failing to submit it *(62) .

7. Part 4