Four questions about dismissing employees at will

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Published: 04/14/2016

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Unlike an employer, who can dismiss an employee on his own initiative only in cases established by law, an employee has the right to terminate an employment contract ahead of schedule at any time . This right is granted to an employee of the Labor Code of the Russian Federation, namely Art. 80 of this regulatory legal act.

The features of this procedure, as well as the rules for its implementation, are worth considering in more detail.

• Legal grounds for termination of the contract
• Conditions for termination of the contract
• Termination procedure Notification to employer
• Preparation of documents for dismissal
• Paying the employee and issuing him a work book

Legislation and terms of termination of the contract

The Labor Code of the Russian Federation, or more precisely in Article 77, paragraph 3, talks about the possibility of an employee leaving at his request. The procedure for termination is described in more detail in Article 80. Thus, it is emphasized that a person has the right to terminate an employment agreement on his own initiative. In this case, it is necessary to inform the employer about this at least 2 weeks in advance by submitting a corresponding written application.

The specified period is counted from the day following the day the paper is submitted for consideration.
For example, you submit an application for consideration on February 1, therefore, the countdown of 2 weeks begins on February 2. February 15 is the last working day. This is done so that the employer can promptly find a replacement for the departing employee. In addition, during this time, the employee himself can think about his decision and change it. But this only applies to specialists who do not hold managerial positions and work under a contract that was concluded for a period of 2 months or more. For persons holding managerial positions, the duration of “working off” is slightly longer than specified in the article, and is a month.

A minimum period of 3 days is established for seasonal workers and persons who have entered into an employment contract whose duration is less than 2 months.

Persons working for an employer who is an individual are guided by the terms assigned in the employment contract they previously concluded. The same applies to persons who work in religious organizations.

You can submit an application at any time, even during vacation or while on sick leave. Please note that only the minimum periods for notifying the employer are indicated. You can write an application a month or two before the expected date of departure.

Termination in this way is possible for both fixed-term and unlimited-term contracts.

Step-by-step instructions for terminating an employment contract at the request of the employee

The most common reason for dismissal is the employee’s own desire. In such cases, the general rules for termination of employment relations apply, which are as follows:

1. The employee submits a written resignation letter addressed to the manager.
2. As a rule, 14 days pass from the date of application to termination of the contract. This is the so-called “working off”, during which the employee completes his current affairs, transfers accountable property, etc. During this period, the employer has the opportunity to find a new candidate for the vacant vacancy, accept working documentation and valuables from the employee, conduct an audit, prepare all the necessary orders and accrue the funds due for payment. As for the working period, it can be reduced by agreement between the employer and the employee. During this period, the resigning employee has the right to “change his mind” and withdraw his application.
3. Termination of an employment contract at the request of the employee is accompanied by a number of actions on the part of the employer:
   a dismissal order is issued;
4. the work book is filled out - a record of dismissal is made indicating the grounds, a link to the relevant article of the Labor Code of the Russian Federation, details of the order, certified by the signature of the responsible employee and the seal of the organization;
5. a cash payment is calculated, which includes wages for days actually worked, compensation for unused vacation, payment for overtime, etc.;
6. on the day of dismissal, the employee gets acquainted with the order (under signature), he is given a copy (upon request), and the work book is returned; the amount due is paid in full.
7. The date of dismissal is considered to be the employee’s last working day, when he must review personnel documents, put his signatures where required and pick up the work book.

This is also important to know:
Notice of job reduction: sample, procedure for drawing up the document

As a rule, no complications occur when registering those leaving at their own request. But here some nuances may arise if the employee for some reason did not want or was unable to obtain documents. In such cases, the personnel employee proceeds as follows:

• in the absence of the dismissal person’s signature on the order, makes an appropriate entry on the main copy and copies;
• sends a notice to the employee who did not show up for the work book with a requirement to pick it up from the employer;
• if a dismissed person fails to apply for a work book on time, ensures its issuance within 3 working days;
• At the request of the employee, it is possible to send a work book by mail.

It is extremely important to complete the procedure no later than the day the work contract is terminated, otherwise the dismissal may be considered invalid: this is not the case when it is permissible to draw up documents “retroactively”.

There are situations in which termination of an employment contract at the initiative of an employee deviates slightly from the standard scheme. Basically, changes occur in terms of the duration of mandatory “working off”, namely:

1. The head of the organization is required to give notice of his intention to leave one month before the expected date of dismissal.
2. Employees have the opportunity to terminate their employment relationship without working off if this occurs due to the following circumstances:

• admission to study at a university or secondary vocational institution;
• retirement;
• moving to another locality;
• dismissal is caused by violations of labor laws on the part of the employer.

Early dissolution

Speaking about the timing of termination, we can highlight the possibility of dismissal before the expiration of two mandatory weeks.
The parties can agree and terminate the agreement earlier, without referring to the agreement of the parties and without concluding the relevant paper. For example, if a request to terminate the contract was made in writing earlier than two weeks, and the employer imposed a resolution allowing such dismissal, then the employee is dismissed earlier. If an agreement is not reached, he should work for the allotted time. Absenteeism from work and termination of duties without notice of dismissal is considered a violation of discipline. Then the labor record states that the employee was fired due to violation of labor discipline.

You cannot dismiss a citizen who has submitted an application earlier if he does not agree. Thus, it is possible to shorten the “working off” period only with the consent of both parties.

In some cases, immediate dismissal is possible. These include the following reasons:

• Full-time admission to a university or other educational institution.
• Reaching retirement age.
• Transfer of a spouse to another city or region.
• A violation in the activities of the employer associated with a violation of the rights of the person who submitted the application for dismissal, any clauses of a previously concluded contract.

Termination of TD by an employee during a probationary period

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

In reality, there can be many reasons. For example, an employee is not satisfied with the working conditions, he does not get along well with the team, he does not like the attitude of management, he cannot cope with his job responsibilities, etc.

Reasons for dismissal of employees

When dismissing under Article 80 of the Labor Code of the Russian Federation, one cannot help but touch upon a topic that concerns the main reasons for this action. So, writing a statement may be related to:

• Reaching retirement age or applying for a long-service pension.
• Studying at a university or technical school, full-time school. Of course, if the training is directly related to obtaining an education in a specialty related to the position held, instead of dismissal, we may be talking about transferring to part-time work. If a person decides to get a new profession, most likely he will quit and look for a new job in his specialty.
• Violation of labor legislation by the employer, as an option, is a delay in wages or irregular working hours.
• By moving to another city or region, sometimes even a city district. Moreover, this could be either the relocation of the employee himself or the second spouse.
• State of health. It is not necessary that medical indications prohibit working at an enterprise; sometimes it is enough for a person to know that he is seriously ill in order to leave work. Thus, teachers who are diagnosed with cardiovascular diseases often leave their jobs, since working at school can provoke a deterioration in their health.
• Moving to another job. Often associated with salary or an offer of a higher position.
• Lack of prospects for further advancement. Young and ambitious employees often leave because of this.
• Unfavorable working conditions – cold rooms, inconvenient work schedule.
• Unfavorable relationships within the team, frequent quarrels with superiors.

Preparation of documents

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

1. Order-resolution on the dismissal process.
2. A certificate of contributions to the insurance policy during work in this organization.
3. Certificate of salary for the last two years.
4. Certificate of length of employment in the company.
5. Work book with information about dismissal.

The order must strictly be created according to the generally accepted model mentioned above. It contains all the information from the application provided to the subordinate and a link to Art. 77 part 1 clause 3 of the Labor Code of the Russian Federation. At the end, the signature of the manager and the resigning employee is placed.

You can use the dismissal order form at the employee's request.

Drawing up an application for termination of an employment contract

The only and sufficient basis for termination of a previously concluded employment agreement at the initiative of the employee is considered to be a statement written by him.
The document is drawn up in the name of the head of a structural unit or enterprise in writing, both by hand and in printed form. You are not required to state the reason why you are resigning, unless there are special situations that require quick dismissal. For example, the same thing: enrollment in a university. In this situation, it would also be appropriate to attach a copy of the enrollment order or a certificate received from the university.

Writing and submitting an application for consideration is of a notification nature, not a permitting one.

example of writing a resignation letter in .doc (Word) format The application can either be handed over to the manager personally, or sent by registered mail, always with a list of attachments. In the first case, it is important to draw up a second copy and ask the manager to mark on it that he has received the application. In this case, you must indicate the date of receipt, position and sign. This will protect you from a situation where the manager may say that he did not receive the application or it was lost.

Withdrawal of application

An employee may change his mind about quitting.
In this case, he must withdraw the application from the manager. In this case, the manager does not have the right to refuse the employee, but only in the situation if another specialist has not been invited during this time. It is important to know that a person must receive only a written invitation, and in addition, he must belong to the category of persons who cannot be refused to enter into an agreement under the law. This includes specialists invited to work on translation, or students who received a guarantee certificate from the head of the organization after the employee submitted an application. For example, Ivanov I.I. decided to resign of his own free will and wrote a corresponding statement. After 10 calendar days, he decided to pick it up. But the manager had already sent an invitation to Kosoy K.R. with an offer to transfer to them. She agreed and is preparing for the transfer. In this case, Ivanov I.I. can no longer withdraw the application and will be dismissed within the period specified in it. But, if within a month from the date of registration of Kosoy K.R.’s dismissal from her previous place of work, she does not register with the organization for reasons beyond the control of management, Ivanov I.I. may return. The second option is if at the time of dismissal the workplace is vacant, and after the expiration of the period specified in the paper, the specialist does not demand dismissal and returns to his workplace. In such a situation, the employment contract is automatically extended. A previously drawn up resignation letter is considered cancelled.

What is meant by a fixed-term employment contract?

As mentioned above, Russian labor law does not recognize fixed-term contracts between an employee and an employer if they specify a period exceeding five years. Accordingly, any contract that specifies an incorrect expiration date is open-ended.

For example, the parties sign the agreement in March 2018, and plan to end their employment agreements in December 2024. From the point of view of the legislator, such an agreement should be considered unlimited - with all the ensuing consequences.

Typical examples of work in which a fixed-term contract is concluded

A fixed-term employment contract is concluded for a temporary period of up to five years. According to established practice, the most common reasons for signing this type of contract include the following:

• all kinds of seasonal work (agricultural, fishing, etc.);
• preparatory stages for the launch of production (start-up, commissioning and other operations);
• the entry of a new specialist to replace a permanent employee who has left for a certain period of time, but whose job must be retained (for example, in the case of maternity leave);
• entry into an elective position with a prescribed period for exercising the assigned powers.

As a general rule, fixed-term contracts terminate upon the arrival of the date specified in them or the achievement of the result specified in the text of the document. However, due to various reasons, the parties may terminate the employment relationship without waiting for “day X”.

Refusal to dismiss

Quite often, employers do not agree with such statements, especially if there is a lot of work at the enterprise, but there is no one to do it. Often the following statements are used as the reason for refusal:

• Lack of candidates for the vacant position.
• Unfinished work.
• There is financial debt.
• The report has not been submitted.

The manager has no right to speak out in this way.
He must consider the application and pay the employee two weeks from the date of its submission. Otherwise, he violates the law and will have to answer for this in court. Delaying a work book and any other documents, without which a resigned person cannot get a job, is considered unlawful. If there are problems with the issuance of papers, the employer is obliged to pay for each day that could have been a working day for the person in accordance with legal norms.

Stages of dismissal

Termination of an employment relationship at the request of an employee is a standard procedure, for the correct execution of which HR employees are responsible. A citizen and his manager must perform a number of certain actions in order for the dismissal to be considered legal. The employee needs:

• Compose a letter of resignation and submit it to your boss;
• Complete the two-week period required by law;
• Receive payment and documents on the last working day.

The person responsible for dismissing an employee performs the following actions:

• Reviews resignation letter;
• Draws up an order to terminate the employee’s labor activity;
• Calculates wages, compensation and issues them to the citizen;
• Makes a note in the work book;
• Provides the employee with the necessary documents.

Rules for writing an application

Labor legislation does not have clear requirements for drawing up a resignation letter. The document can be written in any form, but some information will need to be specified:

• Information about the employee (full name, position, date of conclusion of the contract);
• Company name and manager's full name;
• Date of dismissal.

HR staff are interested in the correct execution of documents. An employee can ask specialists for a sample application or a ready-made template.

If a citizen urgently needs to leave his position for a good reason, this request should be indicated in the application.

Manager's order

The organization has the right to develop its own form for issuing a dismissal order, or use the standard T-8 form. The document is dated on the date that is the employee’s last working day. Clause 3, Part 1, Article No. 77 of the Labor Code is indicated as the basis for dismissal - the employee’s own initiative.

After drawing up the order, it is handed over to the citizen for review. In accordance with established rules, the employee and manager must sign the document. The signature means that both parties agree to terminate the contract and have no claims against each other. There are times when an employee is absent and cannot review the document. The personnel employee sends the order by mail or puts an appropriate mark on it.

Filling out a work book

The dismissal procedure is considered illegal without an entry in the subordinate’s work book. The HR employee makes a note on the day the citizen is dismissed. The reason for termination of the contract must coincide with the basis from the manager’s order. If the employee leaves on his own, refer to clause 3.part 1.art. No. 77 of the Labor Code of the Russian Federation.

Calculation and documents

Before leaving, the employee is given a payslip showing all payments. The employer must:

• Pay wages for the period worked;
• Compensate for unused vacation days;
• Accrue other payments provided for by the terms of the employment contract.

Documents of the former employee are provided no later than the next day after his departure from the organization. The citizen receives in his hands:

• Pay slip;
• Labor book;
• Salary certificate for 2 years of activity;
• Information on the transfer of pension and insurance contributions.

In addition, the employee may require additional documents, for example, advanced training diplomas or a health certificate.

Can I withdraw my application?

Sometimes an employee changes his mind about leaving the organization. The Labor Code allows for the withdrawal of an application, provided that this occurs before the end of the two-week period of work. If an employee changes his decision, he must notify the employer.

Formalities

The last day of an employee deserves special attention.
By this date, the directorate must prepare all papers. The manager is obliged: 1. Issue the appropriate order and familiarize the employee with it against his signature. However, it can be published a few days before dismissal.

2. Hand over the completed work form against the recipient’s signature. The entry in it must contain a link to Article 77, paragraph 3 of the Labor Code of the Russian Federation. An entry citing Article 80 is considered incorrect.

A sample of the correct entry can be viewed below:

Remember, the work report is filled out exclusively on the last working day. Management has no right to arrange it in advance.

3. Pay the employee in full. This includes payments related to wages and compensation if he has vacation time.

4. If there is a written application, other papers may also be issued, such as:

• copies of orders concerning the employee;
• salary certificate;
• characteristic.

To avoid disputes with a former employee, for example, if he did not pick up his work permit on time due to his own fault, the manager is obliged to send a written notification that the employee must come and pick up his documents.
It is best to do this using a registered letter. If the documents are not received within the period specified by law (the last working day), the manager is given 3 working days to return the work permit. The period is counted from the moment of application. In such a situation, the employee no longer has the right to demand immediate issuance of the document.

Order to terminate an employment contract with an employee

A mandatory document upon dismissal is an order, which must be drawn up in the prescribed form, with the obligatory indication as the basis of the employee’s application and his details. A dismissal order can be issued in advance, but due to the fact that the employee can withdraw the application, familiarization with the order is made on the day of dismissal, which is the last day of work.

This is also important to know:
Dismissal of the director of an LLC at his own request: registration

The employee must be familiarized with the order to terminate the employment contract. If this is impossible, then they make a note on the order about the impossibility of familiarizing the employee (Part 2 of Article 84.1 of the Labor Code of the Russian Federation). Situations in which an employee may be absent from work on the day of dismissal are quite possible, since the notice period includes both sickness and vacation time. In addition, the day of dismissal may coincide with the employee’s day off. According to Part 5 of Art. 80 of the Labor Code of the Russian Federation, when terminating an employment contract at the employee’s own request, as with any dismissal, it is necessary to issue a work book, make a calculation and, at the employee’s request, issue other documents. But due to the fact that the two-week or other notice period is not extended in the event of the employee’s absence, that is, a situation is possible when the notice period for dismissal has expired, the employment contract is terminated at the initiative of the employee, but on that day the employee is absent from work, then the employer must on the day of dismissal:

• send a notification that it is necessary to obtain a work book (Part 6 of Article 84.1 of the Labor Code of the Russian Federation);
• make a calculation.

Article 80 of the Labor Code of the Russian Federation provides for the consequences of non-compliance - if two weeks are over, the employee has the right to stop working, regardless of whether the employer has formalized the dismissal. If the dismissal is not formalized and the employee continues to work, then the employment contract is not terminated at the initiative of the employee.

Advantages of dismissal on your own initiative

Dismissal for this reason has several advantages for the employee.

• Management cannot refuse to dismiss you, and is obliged to part with you after the expiration of your service period.
• Within 3 weeks after dismissal, you will be accrued seniority; if you provide a valid reason, the period will be a month.
• If you change your mind about leaving, you can withdraw your application.
• When registering, you will receive benefits, which are calculated based on the minimum wage. This is especially convenient if you previously worked part-time or received the minimum wage.

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

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

If the resigning citizen was unable to leave on the last day (got to the hospital, etc.), then the head of the company is obliged to send him a notice indicating the time and date of receipt of the above-described documents and funds.