Termination of an employment contract, clause 3, article 77 of the Labor Code of the Russian Federation: dismissal at will

Leaving a job “on your own” is the most common reason for dismissal. There are two interesting points here:

1. Very often there are situations when an employee is simply forced to write a statement of his own free will, so as not to have any legal proceedings in the future.
2. Cases of “wrongful dismissal” are common.

We will examine the first point in more detail later. As for the second, the main reason lies in the incorrect application of some norms of the Labor Code.

"Correct" article

Despite the basic basic principles of legal acts, namely “absolute clarity in wording,” misunderstandings very often arise. Under what article should dismissal be made? Clause 3 Art. 77 or art. 80 Labor Code of the Russian Federation?

But in fact there is no problem in understanding here. One is considered procedural (how to legally change jobs correctly), and clause 3 of Art. 77 of the Labor Code of the Russian Federation – normative, i.e. indicates the fact itself.

Almost everyone knows that you need to work for 2 weeks before leaving the organization. Let us immediately clarify one very important nuance.

Dismissal (clause 3 of Article 77 of the Labor Code of the Russian Federation) does not provide for any work.

You just need to notify the employer no later than this period. Of course, during this period you will have to perform your functions at the enterprise. Hence the erroneous opinion. But let us clarify that compulsory work for half a month is optional.

You can go on sick leave or vacation, warning your employer about future dismissal. In this case, there can be no processing.

Commentary to Art. 77 Labor Code of the Russian Federation

Comments on articles of the Labor Code will help you understand the nuances of labor law.

§ 1. Termination of an employment contract - termination of the employment relationship between the employee and the employer. This differs from the removal of an employee from work, when the employee’s performance of his labor function is only suspended. In this case, as a rule, wages are not paid for the period of suspension (see Article 76 and commentary thereto). Termination of an employment contract means the dismissal of an employee.

In accordance with the conceptual apparatus, the legislator uses three terms: “termination”; "termination"; "dismissal" The first two terms are used in relation to an employment contract. Moreover, the term “termination” is broader than “termination”. The concept of “termination of an employment contract” is applied in cases where the contract is terminated at the initiative of the employee, or the employer, or by agreement of the parties to the employment contract. The term “dismissal” is used in relation to a specific employee (for example, engineer M.I. Ivanov was fired at the initiative of the employer under clause 2, part 1, article 81 of the Labor Code of the Russian Federation).

The commented article contains common grounds for termination of an employment contract for all employees.

§ 2. Clause 1 part 1 art. 77 of the Labor Code provides for such a basis as by agreement of the parties. It reflects the contractual nature of labor: by agreement of the parties, as a rule, an employment relationship arises, and by their agreement it is terminated at any time.

On termination of an employment contract, see Art. 78 TC and commentary to it.

§ 3. According to clause 2, part 1, art. 77 of the Labor Code, the basis for termination of an employment contract is the expiration of the term of the employment contract (Article 79 of the Labor Code), except for cases where the employment relationship actually continues and neither party has demanded its termination. See Art. 79 and commentary thereto.

§ 4. According to clause 3, part 1, art. 77 of the Labor Code, an employment contract is terminated at the initiative of the employee (Article 80 of the Labor Code and commentary thereto).

§ 5. In accordance with clause 4, part 1, art. 77, there is termination of the employment contract at the initiative of the employer (see Articles 71 and 81 of the Labor Code and comments to them).

§ 6. Clause 5 Part 1 Art. 77 of the Labor Code, which establishes such grounds for termination of an employment contract as the transfer of an employee with his consent or at his request to another employer, is applied when there is a clearly expressed written will of three subjects: the administration of the new place of work, inviting to work, the given employee, the transferring from one place of work to another in the order of transfer, and the administration of the previous place of work releasing this employee in the order of transfer to another organization. Then the employment contract with him is terminated at his previous place of work under clause 5, part 1, art. 77. At the new place they can no longer refuse to hire him (see Article 64 of the Labor Code and the commentary thereto).

Clause 5, Part 1, Art. 77 of the Labor Code contains another basis for termination of an employment contract - transfer to an elective job (position). For this basis, an act of election of this employee to an elective job (position) exempt from production work is required. The previous and this grounds for dismissal, as we see, differ significantly from each other. Therefore, in the dismissal order and in the employee’s work book there should be a reference not just to clause 5 of Art. 77 of the Labor Code, and with clarification on which of these two grounds the employee is dismissed.

§ 7. Clause 6 part 1 art. 77 of the Labor Code provides for such grounds as the employee’s refusal to continue working in connection with: a) a change in the owner of the organization’s property; b) with a change in the jurisdiction (subordination) of the organization; c) with the reorganization of the organization (Article 75 of the Labor Code). All three cases have now become quite common. For more details, see Art. 75 and commentary thereto.

§ 8. Clause 7, Part 1, Art. 77 of the Code establishes the general basis for dismissal, which was introduced in 1988 in paragraph 6 of Art. 33 of the Labor Code as supplemented. This is “refusal to continue work due to a change in the terms of the employment contract determined by the parties” (see commentary to Article 74 of the Labor Code). Now the Code has included this basis in a separate paragraph. Such a refusal by the employee may occur if he was offered another job in the same organization or if there was no corresponding work after he refused to continue working with a change in the essential terms of the employment contract. If there was another job, but the employee was not offered it, having learned about this, he can file a lawsuit to reinstate him in the unoffered job, and the court, having established such a violation of Art. 74 of the Code will satisfy his claims.

§ 9. Clause 8, Part 1, Art. 77 Labor Code - a new basis for dismissal. Previously, an employee who refused to be transferred to another job based on a medical report on his health condition was dismissed on the grounds of unsuitability for health reasons (clause 2 of Article 33 of the Labor Code). Selected paragraph 8 of Art. 77 grounds are more true and less likely to injure the employee, correctly reflecting the dismissal initiative.

§ 10. Enshrined in clause 9, part 1, art. 77 of the Labor Code the basis was previously contained in paragraph 6 of Art. 29 Labor Code. This is an employee’s refusal to be transferred to another location due to the employer (organization) moving there. In this case, the employee is paid severance pay in the amount of his two-week earnings (see Article 178 of the Labor Code and commentary thereto).

When an employer moves to another area (i.e., to another locality), the administration invites not everyone to move, but, as a rule, the main employees, and if one of them does not agree to the move, he is fired according to clause 9 Art. 77 due to refusal to move with the organization to work in another area. If the employee was not offered a move, he is dismissed under clause 1 of Art. 81 of the Labor Code with appropriate guarantees in connection with the liquidation of this organization in this area (see commentary to Article 81 of the Labor Code).

§ 11. Clause 10, Part 1, Art. 77 refers to Art. 83 “Termination of an employment contract due to circumstances beyond the control of the parties.” It provides for specific circumstances. Therefore, on clause 10, part 1, art. 77 they never make references either in the order or in the work book, since it is a reference.

§ 12. Clause 11, Part 1, Art. 77. The reasons for dismissal specified therein are discussed in detail in Art. 84 of the Labor Code on violation of the rules for concluding an employment contract established by labor legislation, if this violation excludes the possibility of continuing work. This new basis fills the gap in the Labor Code.

§ 13. Part 2 Art. 77 of the Labor Code provides that an employment contract may be terminated on other grounds provided for by the Code and other federal laws. For example, in Sect. XII of the Code specifies additional grounds for dismissal for teaching staff and organizational leaders. There are additional grounds for the dismissal of federal civil servants, judges, and prosecutors, provided for by the relevant federal laws. It should be noted that Art. 77 contains a non-exhaustive list.

Clause 3 art. 77 Labor Code of the Russian Federation: entry in the work book

The most common mistake is incorrect entry. Very often, clerks incorrectly indicate the article in the work book. After this, many former employees face a problem during new employment or when applying for a pension. Clerks put Fr.

But the legislation does not provide for the termination of obligations on the basis of this article. It is important to see the order to terminate the contract. If it is based on the same article, then legally the employee is not fired, because legal procedure was not followed.

Hence the problem for the former employee: he may not be hired for the new position. It is imperative to contact your former organization for correction. The document must contain the following entry: clause 3, part 1, art. 77 of the Labor Code of the Russian Federation (termination of an employment contract at the initiative of the employee).

But let's move on to another common mistake.

Documentary support for dismissal

Based on Art. 77 of the Labor Code of the Russian Federation, the procedure in 2021 is as follows:

1. Initially, the employee or boss declares a desire to terminate the employment contract by mutual consent.
2. At the next stage, the formed agreement is registered in the appropriate journal.
3. Next, the employee must be given a copy of the agreement for personal signature.
4. At the next stage, an Order regarding dismissal is formed and issued and registered in the appropriate journal.
5. Next, the hired worker is notified of the formation of a decree with a personal signature.
6. At the appointed time, the employee will be dismissed and receive final payment.

For some categories of employees (for example, managers, chief accountants), there is no need to specify the conditions regarding the payment of severance benefits and other types of compensation (based on Part 3 of Article 349.3 of the Labor Code).

There are no exact requirements for the formation of such an agreement, which is why the director reserves the full right to use a personally developed form of the document.

A manager may not sign an application to leave his subordinates if, for various reasons, mutual understanding has not been reached or the content of the agreement looks rather “raw”.

See also: Additional agreement to the employment contract.

If it is not possible to familiarize a citizen with the completed Order in writing (for example, for various reasons he changed his mind about quitting or did not move to a new place), then it becomes necessary to develop a special act that indicates the receipt of a refusal or the inability to provide an order.

It becomes necessary to formulate such an act if the worker has not collected the work book and payments.

Clause 3 Art. 77 Labor Code of the Russian Federation: entry into the labor record. Writing sample

Clerks and directors often face a similar problem. The article seems to be indicated accurately, but the entry is still invalid. The fact is that the wording is as follows: “P. 3 tbsp. 77, dismissal of one’s own free will.”

But according to the rules for filling out the entry must fully comply with the norms of the Labor Code of the Russian Federation.

Therefore, the writing sample will look like this: “Dismissed under clause 3 of Art. 77 of the Labor Code of the Russian Federation - termination of an employment contract at the initiative of the employee.”

The record is radically modified, although the underlying reason remains the same.

What entries are made in the work book?

Since receiving a paycheck and work book is the end of the voluntary dismissal process, it should be given special attention. If the book is issued without the corresponding records, the person will not have proof of experience and official place of work.

The employee must check for the following notes:

• The name of the company where the employee worked on the basis of an employment contract;
• Work start date;
• The position held by the worker;
• Reason for hiring and date of dismissal;
• Reason for termination of the employment contract and related relations;
• Seal of the organization;
• Signatures of the terminated employee and an authorized HR representative.

Consent of the parties: what is the difference?

There are situations when an employee is forced to write a letter of resignation of his own free will. The reasons, of course, are purely individual. The new director is selecting personnel, the employee is no longer happy, there is a reorganization, pregnant women are often forced to do this, etc. The Labor Code has two paragraphs of Article 77, which seem equivalent to ordinary citizens:

• By agreement.
• At your own request.

Many professional lawyers involved in labor disputes know that termination of a contract in the second case can be challenged in court. It is enough to provide arguments and prove that the employee was subjected to psychological influence by the administration of the enterprise. Consequently, the termination order will be canceled in court, and the employee will be reinstated with all rights.

Clause 1 art. 77 of the Labor Code of the Russian Federation does not provide for such a loophole. It just follows from the fact that the employee and the employer have any conflicts and disagreements.

As a rule, the former employee is paid some kind of “compensation” funds in order to terminate the employment relationship peacefully and without consequences for both parties. In court, all arguments will be useless. It is almost impossible to regain your labor rights.

Subtleties when dismissing in the order of transfer

This article will talk about the features of dismissal by transfer to another organization and transfer to another position at the previous place of work. After reading it, you will learn how to correctly write an application for transfer, what financial payments are due to you, and also become familiar with the procedure described in detail.

Dismissal by transfer

This type of dismissal is regulated by Article 72.1 of the Labor Code of the Russian Federation

. There are two types of transfer through dismissal: internal and external.

Internal provides for the transfer of an employee to another position within the company where he works, or a change in his functional responsibilities, as stated in Art. 72.1 Labor Code of the Russian Federation, paragraph 1

.

Transfer to another job - a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to work in another location together with the employer.

External means the transfer of an employee to work in another company or organization and can only be carried out with the written consent of the employee, which is provided for in Art. 72.1 Labor Code of the Russian Federation, paragraph 2

.

At the written request of the employee or with his written consent, the employee may be transferred to permanent work with another employer.

Transfer to another employer: how to formalize it correctly

When dismissed by transfer to another organization, an employee who decides to change jobs should take care of certain guarantees. Such a guarantee for him will be a letter of invitation from the organization

, to which the employee is moving, directed to his current employer.

This letter is signed by the head of the inviting organization, it indicates the position for which the invitee will be assigned and the date of transfer. A sample of such a letter can be seen here

(
Annex 1
).

The employee himself writes a statement to the head of his organization with a request for dismissal by transfer ( Appendix 2

).

It is also possible to transfer an employee as a result of an agreement between two employers. A typical example of such a situation is when, for various reasons, one organization is forced to reduce staff and is looking for an opportunity to employ its staff.

In this case, a tripartite agreement

, which records the will of all parties - its participants: the former and current employer and the employee himself.

The agreement for the employee specifies all the main points regarding his new job:

• job title;
• work start date;
• terms of remuneration.

What is written down in the labor report?

According to clause 5, part 1, article 77 of the Labor Code of the Russian Federation

An entry is made in the work book that the basis for terminating the employment contract between the organization and the employee was the transfer of the latter to work for another employer or his holding of an elective position.

The grounds for termination of an employment contract are:...

1. transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position).

In this case, the relevant information is entered into the work book, where it is certified by the signature of the responsible person and the seal of the organization.

At the employee’s new place of employment, when filling out the work book, it is indicated that he was hired by transfer

.

What is better to choose: dismissal or transfer

The similarity of both options is that in both the first and second cases you terminate your employment relationship with the employer. The difference is this: if upon dismissal you leave your previous place of work for nowhere, then upon transfer you are guaranteed employment in a new place

.

You also have insurance in case, for some reason, the new employer suddenly changes his mind about hiring you - such actions on his part are prohibited by Art. 64 Labor Code of the Russian Federation, paragraph 4

.

It is prohibited to refuse to conclude an employment contract to employees invited in writing to work by way of transfer from another employer, within one month from the date of dismissal from their previous place of work.

It should be remembered that this provision applies only if no more than a month

.

In addition, according to Art. 70 Labor Code of the Russian Federation, paragraph 4

The transferred employee is not given a probationary period:

A hiring test is not established for:

...persons invited to work by way of transfer from another employer as agreed between the employers;

Dismissal by transfer: how it's done

The procedure for dismissal by transfer begins from the moment the personnel office receives an application from the resigning employee and an invitation to work from the organization or company in which he intends to find a job. It consists of the following steps.

1. An order for dismissal is being prepared using the unified form T-8
   . After signing it, the dismissed person gets acquainted with this document against signature.
2. An entry about dismissal is made in the work book.
   According to clause 5, part 1, article 77 of the Labor Code of the Russian Federation. recording options may be as follows:

• dismissed due to transfer at the request of the employee (or with the consent of the employee - depending on the situation) to work for another employer;
• the employment contract was terminated due to a transfer at the request of the employee (or with the consent of the employee, depending on the situation) to work for another employer.

1. All monies due to the dismissed person are paid.

If the person resigning has unused days from vacation, then he is paid monetary compensation for them, which is provided for in Article Art. 127 Labor Code of the Russian Federation, paragraph 1

.

Upon dismissal, the employee is paid monetary compensation for all unused vacations.

1. The employee is given a work book
   .

Practical advice for those resigning on transfer

For successful dismissal through transfer and new employment, it will be important to follow the following recommendations:

• before leaving
  your previous job, receive
  a copy of the invitation letter
  from the new place of employment;
• read the tripartite agreement
  and insist on it. so that all the conditions of your new work are clearly stated in it;
• Don’t delay getting a job – you only have a month to do it
  ;
• remember
  that when transferring
  there is no probationary period
  ;
• If the new employer begins to shirk its obligations, go to court
  .

In this article, we highlighted issues related to dismissal due to transfer both within one organization and with a transfer to another company. We hope that the presented materials will be useful to you.

Source: https://WorkDispute.ru/yvolneniye/uvolnenie-dlja-perevoda.php

If you change your mind, what should you do?

Such cases are also not uncommon. The reasons can be different: there was no agreement on a new place of work, the director realized that the employee really wanted to leave, and improved working conditions and much more.

To cancel an application that has already been submitted, you must write and also officially register a new one in accordance with all the rules. No matter how good the relationship between him and the employer may seem to the employee, it is important to know the main rule: the application for refusal of dismissal must be submitted officially, i.e. in writing through a secretary or by mail.

What is meant by other grounds for dismissal?

Other grounds for dismissal not specified in Art. 77 of the Labor Code of the Russian Federation, apply to employees of certain categories or industries. Their list is not limited by law; there is only a requirement that it be established by law at the federal level. The Labor Code of the Russian Federation, in particular, provides for them:

• for the head of a legal entity (Article 278);
• part-time worker (Article 288);
• employee of an individual employer (Article 307);
• homeworker (Article 312);
• foreigner (Article 327.6);
• teaching worker (Article 336);
• head (deputy head) of a state or municipal scientific organization (Article 336.3);
• employee of a foreign mission (Article 341);
• employee of a religious organization (Article 347);
• employee of the employer-notary (Article 351.4).

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

What is it for?

There are often cases when the employer is not against such dismissal. But he had no reason to do it himself. And then the employee himself brings such a letter of resignation under clause 3 of Art. 77 Labor Code of the Russian Federation.

Then after some time the employee announces that he has changed his mind. The director, knowing the legislation, says with joy on his face that “I understand everything, continue working.”

After a two-week period from the date of writing the application, a dismissal order is issued in accordance with clause 3 of Article 77 of the Labor Code of the Russian Federation - at one’s own request.

There is no use going to court. Legally, the director did everything correctly. One of the principles of law was at work here: “Most moral principles become legal norms, but not all.”

When refusing an application of your own free will, there is one very important nuance. If, from the moment the employee was fired until his refusal, a written invitation was sent to another person to accept this position, then it will no longer be possible to cancel it.

Here the law will be on the side of the future employee, i.e. someone who has already been invited. Because Now no one has the right to refuse him employment.

Therefore, it is necessary to weigh everything carefully before writing a letter of resignation. There are times when there is no way back.

How to correctly formalize dismissal by agreement of the parties

The initiative can come from both the employer and the employee himself. One of the conditions for the correct submission of documents is the written documentation of each stage of negotiations.

Stage 1

The personnel officer or employee draws up a letter to the other party with a proposal to terminate the employment contract by agreement of the parties. There is no approved form for writing such a letter.

The letter must indicate the full name of the employee, the full name of the enterprise, the date of preparation and the conditions under which the agreement is concluded. It is important to include in the text of the letter a clause stating the need to provide a written response within three days.

Since the response time is limited, it must be endorsed by the secretary and handed over to the recipient against signature.

Stage 2

Next, it is necessary to obtain the consent of the other party. If everyone is completely satisfied with the terms of dismissal, it is permissible to write “I don’t mind” or “I agree” under the text. Otherwise, it is necessary to draw up a response letter with acceptable conditions. Each stage of negotiations is documented in writing in order to avoid claims in the future.

Stage 3

At the end of the negotiations, an agreement is created in which all points of the agreements are scrupulously specified. The sample agreement is not approved by law; its form can be developed by the employer. If agreements are reached regarding the payment of compensation to the employee, indicate the period and amount of payments. The agreement is then signed by both parties.

Sample agreement to terminate an employment contract

Read on the topic: How to correctly draw up an agreement to terminate an employment contract by agreement of the parties?

Stage 4

On the day of actual dismissal, an order is created in the T-8 form. In the column “reason for dismissal” indicate “agreement of the parties, Article 77, paragraph 1 of the Labor Code of the Russian Federation.” The employee is introduced to the order against signature.

Sample order for dismissal by agreement of the parties

Read on the topic: How to correctly draw up a dismissal order by agreement of the parties?

Stage 5

Sample entry in the work book about dismissal by agreement of the parties

Information about dismissal is entered into the personal card and labor card. The order number is written in the work book. The reason for dismissal is recorded as “agreement of the parties.” There is no need to enter information from the document or details into the work report.

Stage 6

The employee is given all the documents and the payment is made. After this, the military registration and enlistment office is notified of the employee’s dismissal.

Important! Simultaneously with receiving the documents, the employee receives a full payment (salary and payment for unused vacation). The date of payment of compensation, if included in the agreement, may not coincide with the main calculation.

Where to defend labor rights

If during the dismissal procedure or in any other case that arose during the employment relationship, your rights were violated, then you need to defend them in one of the following ways:

• Contacting the Labor Rights Protection Inspectorate.
• Statement of claim to court.
• Contacting the prosecutor's office.

A citizen of the Russian Federation whose rights have been violated may appeal simultaneously to all competent authorities. Administrative punishment is provided for the guilty person. But the citizen himself does not have the right to initiate such a case through the court. This can only be done by either the prosecutor's office or the labor inspectorate. To do this, you need to send a complaint to these structures.

In parallel, the employee has the right to file a lawsuit in order to receive compensation for moral damage or any other payment from the employer, if provided by law, because administrative sanctions do not provide for this. All fines issued by the prosecutor's office will go to the state. Therefore, it is better to contact the regulatory authorities in order to bring the offender to justice and go to court for moral or other payments.

Cases exempt from service

The Labor Code contains reasons that allow an employee to leave before the due date of 14 calendar days. Let's say right away that the report begins the next day after the relevant notification is submitted.

These include:

• Employee training.
• Mutual agreement.
• Violation of labor rights.
• Other.

The first two are more or less clear. As for violation of labor rights, what is meant is not the subjective opinion of the employee. This refers to the official holding of the employer to responsibility. And it must necessarily concern the employee who decided to leave earlier than expected.

When will the payment be made?

After an official order, all payments for time worked must be made on the day of dismissal. And this is not a “gift” from the company, it is an obligation according to the Labor Code. Violation of this norm is a reason to defend your rights and contact regulatory authorities. In addition to salary, the employee is entitled to payment for unused vacation. You can calculate it yourself if you know your average monthly earnings and the exact number of days worked. Payments under it must also be made on the day of the dismissal order.

The only exception to this rule is sick pay. From the moment the medical certificate is provided, the accounting department recalculates within 10 days and pays it on payday at the enterprises.

If the employee is not on site on the day of payment (business trip, vacation, sick leave), then all payments must be made no later than one day after his request.

Calculation procedure

The legislator obliges to complete all settlements with the employee on the day of completion of his activities in the organization. Then his work book is returned to him. If this order is violated, a citizen has the right to consider his interests significantly violated and count on full compensation for all types of damage - both financial and moral.

Interest is accrued for each day the payment deadline is missed. In addition, the law provides for fines for late payment, which apply to the organization itself, its management, and responsible employees.

The calculation includes the following amounts:

• salary accrued at the time of departure, but not paid;
• compensation for unused vacation periods, according to Art. 127 Labor Code of the Russian Federation;
• payments based on sick leave certificates submitted by the employee;
• other benefits and bonuses provided for by laws (for certain cases of dismissal) and acts of the organization.

All payments are made on the last day of work, with the exception of sick leave payments. The law allows you to pay it not on the day of dismissal, but later, on the day of payment of wages to employees following the date of dismissal, in cases where the period between the submission of sick leave and the day of payment of wages was more than 10 days.

In addition, the law imposes on the employer the obligation to pay for sick leave provided by dismissed employees within a month from the date of termination of work, unless they have taken a job in another organization.

Keep in mind! If a citizen does not show up for service on the day of payment, all payments to him must be made the next day after he makes the relevant demands. A work book is an important document. If the employee does not show up to receive it, he is sent a registered letter offering to pick up the book or allow him to send it by mail. Receipt of receipt of the letter should be retained.