Terminate labor. Termination of the employment contract at the initiative of the employee. Is it necessary to work

The general grounds for termination of employment contracts are indicated in Art. 77 of the Labor Code of the Russian Federation. We have already touched on some of them above.

The general grounds are:

1. Agreement of the parties.

As follows from Art. 78 of the Labor Code of the Russian Federation, an employment contract can be terminated at any time by agreement of its parties. Important is not only the desire of the parties to terminate the relationship, but also the agreement on the time (period, date) of termination of the contract.

Article 79 of the Labor Code of the Russian Federation imposes the obligation of the employer to notify the employee of the termination of the fixed-term employment contract in writing at least three days before the dismissal, otherwise the fixed-term employment contract is transformed into an employment contract concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).

Also in Art. 79 of the Labor Code of the Russian Federation defines the moments of termination of individual fixed-term employment contracts. So, when concluding an employment contract for the time of performing a certain work, for the time of fulfilling the duties of an absent employee, for the time of performing seasonal work, such contracts are terminated accordingly: at the end of the work stipulated by the contract, with the exit of the replaced employee to work, at the end of the season.

In all cases, the employer must warn the employee and issue an appropriate written order, which brings the employee to the signature.

3. Termination of the employment contract on the initiative of the employee.

The contract is terminated at the employee's own request (Article 80 of the Labor Code of the Russian Federation). In this case, the employee must notify the employer in writing of his desire to terminate the employment relationship at least two weeks in advance. A different period may be fixed by agreement of the parties or specified in the law (for example, the manager must notify the employer at least a month in advance - Article 280 of the Labor Code of the Russian Federation). And if an employment contract is concluded with an employee for a period of up to two months or with a seasonal worker, then the employer is notified of the early termination of the employment contract three calendar days in advance (Articles 292, 296 of the Labor Code of the Russian Federation).

If, after filing an application for dismissal, the employee has changed his mind, then he has the right to withdraw his application at any time before the expiration of the notice of dismissal. This is always possible, except for the situation when another employee is invited in writing to replace the resigning employee, who, in accordance with Art. 64 of the Labor Code of the Russian Federation or other federal laws, the conclusion of an employment contract cannot be refused.

4. Termination of the employment contract at the initiative of the employer.

This paragraph does not apply on its own and refers to Art. 81, which indicates the grounds for termination of the contract at the initiative of the employer. These grounds will be discussed further.

In accordance with Art. 61 of the Civil Code of the Russian Federation, the liquidation of an organization entails its termination without the transfer of rights and obligations by way of succession to other persons.

In the event of the termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of these structural units is carried out according to the rules provided for in cases of liquidation of the organization (part 4 of article 81 of the Labor Code of the Russian Federation). Employees must be warned about the upcoming dismissal against signature at least two months in advance (Article 180 of the Labor Code of the Russian Federation).

A dismissed employee is paid a severance pay at the expense of the employer in the amount of the average monthly earnings. In addition, he retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).

In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the public employment service agency, provided that the employee applied to this agency within two weeks after the dismissal and was not employed by him (part 2 of article 178 of the Labor Code RF). And upon dismissal from organizations located in the regions of the Far North, salary retention is possible for the fourth, fifth and sixth months (Article 318 of the Labor Code of the Russian Federation).

With the written consent of the employee, the employer has the right to terminate the employment contract with him without a two-month notice of dismissal with the simultaneous payment of additional compensation in proportion to the reduction of the warning period (parts 2 and 3 of article 180 of the Labor Code of the Russian Federation).

The liquidation and reduction of the staff of temporary workers (having a contract term of up to two months) is warned three days in advance, and the severance pay may be provided for by the contract (Article 292 of the Labor Code of the Russian Federation), and seasonal workers are warned seven days in advance, and the severance pay is at least two weeks' earnings (Article 296 of the Labor Code of the Russian Federation).

When employees are dismissed due to the termination of activities by an employer - an individual, the terms of the notice of dismissal, as well as the cases and amounts of severance pay and other compensation payments paid are determined by the employment contract (Article 307 of the Labor Code of the Russian Federation). If the contract does not specify these warranties, the provisions of the law shall apply.

2. Reducing the number or staff of the organization's employees.

When carrying out these activities, the employer is obliged to offer the employee another available job (vacant positions). All positions (works) that an employee can occupy (perform) should be offered, taking into account his skills and state of health.

If the downsizing results in the dismissal of employees, then employees with higher labor productivity and (or) qualifications have an advantage.

With equal labor productivity and qualifications, preference in remaining at work is given to:

• family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood);
• persons in whose family there are no other self-employed workers;
• employees who have received a labor injury or occupational disease in this organization;
• invalids of the Great Patriotic War and invalids of military operations for the defense of the Fatherland;
• employees who improve their skills in the direction of the employer on the job (part 2 of article 179 of the Labor Code of the Russian Federation);
• other persons specified in the collective agreement of the organization.

In accordance with Part 1 of Art. 82 of the Labor Code of the Russian Federation on the decision to reduce the number or staff of employees of the organization and the possible termination of employment contracts with employees on this basis, the employer must also inform the elected trade union body of this organization in writing, and if the decision to reduce the number or staff of employees of the organization may lead to mass dismissal of employees - no later than three months before the start of the relevant activities.

When dismissing workers who are members of a trade union, it is required to coordinate the decision with the trade union.

3. Inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification.

On this basis, the employee may be dismissed if it is impossible to transfer him to another job with his consent. In order to protect the rights of workers, a member of the commission from the relevant elected trade union body (part 3 of article 82 of the Labor Code of the Russian Federation) must be included in the attestation commission.

4. Change of the owner of the property of the organization.

Upon termination of the employment contract with the head of the organization, his deputies and the chief accountant in connection with a change in the owner of the organization, the new owner is obliged to pay compensation to the specified employees in the amount of at least three average monthly earnings of the employee (Article 181 of the Labor Code of the Russian Federation). They also cannot be withheld sums of money for unworked days of vacation used in advance, etc. (Article 137 of the Labor Code of the Russian Federation).

Paragraphs 5 to 10 of Art. 81 of the Labor Code of the Russian Federation are disciplinary dismissals (penalties - Article 192 of the Labor Code of the Russian Federation), therefore, the procedure for their application must strictly comply with the procedure for applying disciplinary sanctions (Article 193 of the Labor Code of the Russian Federation).

5. Repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction.

Termination of an employment contract on this basis is possible if the employee has already committed a disciplinary offense, for which a disciplinary sanction was applied to him in the prescribed manner and this employee again commits a disciplinary offense, and the previous penalty has not yet been lifted by this moment. A disciplinary sanction is removed automatically one year after application, unless removed earlier by order of the employer.

The general rules for applying penalties are as follows:

• an explanation is necessarily taken or an act is drawn up;
• an order for each case of violation is issued 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 necessary to determine the opinion of the representative body of employees, but in any case not later than six months from the date of the misconduct , and based on the results of an audit, audit of financial and economic activities or an audit - no later than two years from the date of the offense.

6. A single gross violation of labor duties by an employee.

Single gross violations of labor duties are understood as:

a) absenteeism, i.e. absence from work during the entire shift or absence from the workplace without good reason for more than four hours in a row during the working day;

b) appearing at work in a state of alcoholic, narcotic or other toxic intoxication.

Dismissal is possible only when the employee was in a state of intoxication during working hours on the territory of the organization or facility where, on behalf of the management, he had to perform labor functions.

The presence of an employee of alcohol, narcotic or other toxic intoxication and the fact of his appearance in such a state at work must be proved by the employer. Evidence will be a medical report or other evidence (such as a witness statement);

c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, as well as disclosure of personal data of another employee;

d) committing at the place of work theft (including small) of another's property, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a body authorized to apply administrative penalties;

e) violation by the employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences.

7. Commitment of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer

Employees to whom this basis can be applied are persons serving monetary and commodity values. On this basis, watchmen, cleaners, etc., who do not serve (storage, processing, manufacturing) monetary and commodity values ​​\u200b\u200bcannot be dismissed, although they can use them in the process of work.

The application of this basis does not depend on other types of liability and on the existence of an agreement on full liability. In this situation, the guilt of the employee is established by the employer himself on the basis of the evidence he has.

8. Commitment by an employee performing educational functions of an immoral offense incompatible with the continuation of this work.

There is no definition of immoral offense in the legislation. It seems that it should be understood as offenses that violate accepted legal norms, are directly related to morality, committed by an employee both at work and at home and do not correspond to the moral qualities required for positions held or for the work performed by him related to the upbringing of minors.

On this basis, only employees performing educational functions, i.e. teachers, social pedagogues, educators, etc., can be dismissed. Persons performing only technical duties cannot be dismissed on this basis.

9. Making an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its misuse or other damage to the property of the organization.

10. A single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties.

The manager can also be dismissed for general one-time gross violations (and 6, article 81 of the Labor Code of the Russian Federation), as well as for other gross violations, which must be specified either in an individual agreement with the employee, or in local regulations, with which the manager is familiarized under painting.

11. Submission by the employee to the employer of false documents when concluding an employment contract.

In accordance with the Labor Code, an employee presents a whole package of various documents (Article 65 of the Labor Code of the Russian Federation), which can be legally expanded in some cases, taking into account the specifics of the work.

Forgery of documents can be in form (when the entire document is fake) and in content (when the actual document contains false entries).

12. This paragraph - the termination of access to state secrets - was transferred by the legislator to Art. 83 TK.

13. Cases stipulated by the employment contract with the head of the organization, members of the collegial executive body of the organization.

Termination of the contract due to circumstances beyond the control of the parties

In accordance with Art. 83 of the Labor Code of the Russian Federation, an employment contract is subject to termination due to the following circumstances that do not depend on the will of the parties:

1. Calling up an employee for military service or sending him to an alternative civilian service that replaces it.

Upon termination of employment relations on the specified basis, the employee is paid a severance pay in the amount of two weeks of average earnings (Article 178 of the Labor Code of the Russian Federation).

The termination of the employment contract on this basis is carried out on the basis of the employee's application upon presentation by the employee of the military registration and enlistment office summons to appear at the recruiting station for service. Only in this case, the Federal Law "On the Status of Servicemen" guarantees the right of a serviceman who worked at a state (municipal) enterprise before being drafted to return to his previous job within six months from the date of demobilization.

2. Reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court.

Termination of the employment contract on this basis is possible only if it is impossible to transfer the employee with his consent to another job. Moreover, in this case, the employee is paid a severance pay in the amount of two weeks of average earnings (Article 178 of the Labor Code of the Russian Federation);

3. Not being elected to office.

Logically, this paragraph applies if the employee holding a certain position is not re-elected for a new term. Since in the competitive replacement of a position, in addition to such an employee, persons filling other positions can participate, and if they are not elected, they remain in their positions and they do not need to be fired. Also, an applicant from the street, that is, not an employee of the organization, can participate in the competitive selection, and if he is not elected, he also does not need to be fired, since he did not become an employee.

4. Condemnation of an employee to a punishment that precludes the continuation of the previous work in accordance with a court verdict that has entered into force.

In accordance with Art. 392 of the Code of Criminal Procedure of the Russian Federation, a court verdict that has entered into legal force is binding on all state authorities, local governments, public associations, officials, other individuals or legal entities and is subject to strict execution throughout the territory of the Russian Federation.

If the punishment chosen in the sentence prevents the employee from continuing his labor activity (for example, deprivation of liberty, deprivation of the right to hold a certain position or engage in certain activities), then in this case, the employment contract is subject to termination by issuing an appropriate order by the employer.

According to part 3 of Art. 77 of the Labor Code of the Russian Federation, the day of dismissal of an employee is the last day of his work. If the employee was under arrest before the trial, then the day of his dismissal will be considered the last day of his work. This is one of the few cases of dismissal of an employee since the last number.

5. Recognition of an employee as completely disabled in accordance with a medical report.

In this case, the employer is obliged to terminate the employment relationship with the employee. The basis for issuing the relevant order can only be a medical opinion of authorized experts of the MSEC (medical and social expert commission).

6. Death of an employee or employer - an individual, as well as recognition by the court of an employee or employer - an individual as dead or missing.

If the first half of this ground is clear enough, then the issue of recognizing a person as missing or dead is extended in time and also leads to dismissal in the past after recognizing the person as such in court.

7. The onset of emergency circumstances preventing the continuation of labor relations (military operations, catastrophe, other disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a public authority of the corresponding subject of the Russian Federation.

There must be not only an event, but also a decision to recognize it as an emergency by the relevant authority.

8. Disqualification or other administrative punishment, excluding the possibility of the employee fulfilling the obligations under an employment contract.

9. Expiration, suspension for more than two months or deprivation of an employee of a special right (a license, the right to drive a vehicle, the right to carry weapons, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of the employee to fulfill the obligations under the employment contract.

10. Termination of access to state secrets, if the work performed requires such access.

In Art. 23 of the Law of the Russian Federation of July 21, 1993 No. 5485-1 “On State Secrets” defines the conditions for terminating the admission of an official or citizen to state secrets.

If, for one of the reasons given in it, the employee’s access to state secrets is terminated and, as a result, he will lose the opportunity to continue to carry out his labor functions, then the employment contract may be terminated by the employer under paragraph 12 of Art. 81 of the Labor Code of the Russian Federation.

Dismissal under paragraphs 8-10 is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (as a vacant position or job corresponding to the employee’s qualifications, as well as a vacant lower position or lower paid job), which the employee can perform according to his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

11. Cancellation of the court decision or cancellation (recognition as illegal) of the decision of the state labor inspectorate to reinstate the employee at work.

12. Bringing the total number of employees who are foreign citizens or stateless persons into line with the allowable share of such employees established by the Government of the Russian Federation for employers engaged in certain types of economic activity in the territory of the Russian Federation.

13. Emergence of restrictions established by the Labor Code, other federal law and excluding the possibility for the employee to perform duties under an employment contract on engaging in certain types of labor activity.

Such dismissal is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

Additional grounds for termination of the contract with certain categories of employees.

The current labor legislation provides for a significant list of grounds for terminating an employment contract. They are contained directly in the Labor Code of the Russian Federation, as well as in other federal laws.

In Art. 278 of the Labor Code of the Russian Federation provides additional grounds for terminating an employment contract with the head of an organization. In Art. 288 of the Labor Code of the Russian Federation contains an additional basis for the termination of an employment contract with persons working part-time. In Art. 336 of the Labor Code of the Russian Federation specifies additional grounds for terminating an employment contract with a teacher. In Art. 241 of the Labor Code of the Russian Federation, additional grounds for the dismissal of employees in a representative office of the Russian Federation abroad are indicated. In Art. 248.11 provides additional grounds for the dismissal of athletes.

Their special grounds are provided for the dismissal of state civil servants, law enforcement officers, for the resignation of judges, etc.

Termination of an employment contract means the end of the employment relationship between the employee and the employer. In the current labor legislation, along with the concept of "termination of an employment contract", there are other concepts that mean the end of labor relations between the parties to an employment contract: "termination of an employment contract" and "dismissal". These concepts are close in meaning, but are not identical and differ in their legal content.

Thus, the termination of an employment contract is the end of the employment relationship between the employee and the employer. "Termination of an employment contract" is the most general and broad concept that covers all cases of termination of a concluded employment contract, termination of an employment relationship (by agreement of the parties; at the initiative of an employee or employer; at the request of authorized third parties; on grounds that exclude for any circumstances, the possibility of continuing the employment relationship, etc.).

The concept of "dismissal of an employee", in fact, is close to the concept of "termination of an employment contract", but it does not cover cases of termination of an employment contract due to circumstances beyond the control of the parties.

"Cancellation of an employment contract" is a narrower concept, it is a volitional termination of employment relations at the initiative of one of the parties to the employment contract or at the initiative of certain bodies that have the right to demand this termination. The difference between the concept of "termination of an employment contract" and the concept of "termination of an employment contract" is that the first covers both volitional unilateral and bilateral actions, as well as events, and the second covers only unilateral volitional actions.

An employment contract is terminated only if there are certain grounds for its termination and compliance with the rules for dismissing an employee on this specific basis. The basis for terminating an employment contract is a life circumstance, which is enshrined in law as a legal fact necessary for terminating an employment relationship. Termination of the employment contract means at the same time the dismissal of the employee.

An entire chapter is devoted to the termination of an employment contract in the Labor Code of the Russian Federation - 13, which provides for the grounds and procedure for terminating an employment contract. At the same time, the Labor Code of the Russian Federation is not the only legal act regulating the termination of an employment contract. Thus, the grounds for termination of employment contracts, other than those given in the Labor Code of the Russian Federation, are contained in a number of other federal laws.

It should be noted that the terms of the employment contract may also establish additional grounds for dismissal, if this is allowed by the current legislation and does not contradict it. The Labor Code of the Russian Federation regulates the right of the parties to an employment contract, in certain cases, to include in the employment contract additional grounds for terminating employment relations (Articles 278, 307, 312, 347 of the Labor Code of the Russian Federation).

Termination of an employment contract is considered legal provided that, in addition to the grounds provided for by law, the employer complies with the established procedure for terminating an employment contract, and also provides guarantees upon dismissal established by law for certain categories of employees.

Thus, it is not allowed to dismiss an employee at the initiative of the employer during the period of his temporary disability and during his vacation (part 3 of article 81 of the Labor Code of the Russian Federation), pregnant women, as well as women with children under the age of three, single mothers raising a child under the age of 14 years (a disabled child under eighteen years of age), other persons raising these children without a mother, at the initiative of the employer, is not allowed (with the exception of dismissal under clause 1, sub-clause "a" clause 3, clause 5-8, 10 and 11 article 81 of the Labor Code of the Russian Federation).

The dismissal of an employee under paragraph 5 of Article 82 of the Labor Code of the Russian Federation is carried out taking into account the reasoned opinion of the elected trade union body of this organization in accordance with Art. 373 of the Labor Code of the Russian Federation.

The employer has the right to terminate the employment contract no later than one month from the date of receipt of the reasoned opinion of the elected trade union body.

Consideration of the opinion of the trade union body is not required if an employee who is not a member of a trade union is dismissed or the organization has a trade union, but the employee is connected by membership relations with another trade union that does not have a primary trade union body in this organization.

Representatives of employees participating in collective bargaining, during the period of their conduct, cannot be dismissed at the initiative of the employer without the prior consent of the body. Authorizing them to represent, except in cases of termination of the employment contract for committing a misdemeanor, for which, in accordance with the Labor Code of the Russian Federation, other federal laws provide for dismissal from work.

Termination of an employment contract with an employee under the age of 18 at the initiative of the employer (except in cases of liquidation of the organization), in addition to observing the general procedure, is allowed only with the consent of the relevant state labor inspectorate and the commission on minors.

According to Art. 374 of the Labor Code of the Russian Federation dismissal at the initiative of the employer in accordance with paragraph 2, sub. "b" paragraph 3 and paragraph 5 of Art. 81 of the Labor Code of the Russian Federation of heads (their deputies) of elected trade union collegiate bodies of the organization, its structural divisions (not lower than shop and equated to them), not released from their main work, in addition to the general procedure, dismissal is allowed only with the prior consent of the relevant higher elected trade union body.

However, the provisions of the first part of Art. 374 of the Labor Code of the Russian Federation are subject to application in accordance with the constitutional and legal meaning identified in the ruling of the Constitutional Court of the Russian Federation of December 4, 2003 No. 421-O “In the case of checking the constitutionality of the provisions of part two of Article 170 and part two of Art. 235 of the Labor Code of the Russian Federation and paragraph 3 of Art. 25 of the Federal Law “On Trade Unions, Their Rights and Guarantees of Activity”, which recognized the norms contained in federal laws and prohibiting the dismissal of an employee who has committed an unlawful act, which is a legal basis for termination of an employment contract at the initiative of the employer, to be inconsistent with the Constitution. The establishment in the Labor Code of the Russian Federation of guarantees for an employee upon his dismissal for repeated failure to perform labor duties without good reason, if he has a disciplinary sanction, is a disproportionate restriction of the rights of the employer as a party to the employment contract and at the same time the subject of economic activity and the owner. This kind of restriction is not due to the need to protect the rights and freedoms enshrined in Art. 30 (part 1), 37 (part 1) and 38 (part 1 and 2) of the Constitution of the Russian Federation, violates the code of economic (entrepreneurial) activity, property rights, distorts the essence of the principle of freedom of labor and therefore contradicts the provisions of Art. 8, 34 (part 1), 35 (part 2), 37 (part 1) and 55 (part 3) of the Constitution of the Russian Federation.

General grounds for termination of an employment contract.

General grounds for termination of an employment contract are contained in Article 77 of the Labor Code of the Russian Federation

The grounds for termination of an employment contract are:

1) agreement of the parties (Article 78 of the Labor Code of the Russian Federation);

2) the expiration of the term of the employment contract (Article 79 of the Labor Code of the Russian Federation), except in cases where the employment relationship actually continues and none of the parties has demanded their termination;

3) termination of the employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation);

4) termination of the employment contract at the initiative of the employer (Articles 71 and 81 of the Labor Code of the Russian Federation);

5) transfer of an employee at his request or with his consent to work for another employer or transfer to elective work (position);

6) the employee's refusal to continue working in connection with a change in the owner of the organization's property, with a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of the Labor Code of the Russian Federation);

7) the employee's refusal to continue work in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of the Labor Code of the Russian Federation);

8) the employee's refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer (parts three and four of Article 73 of the Labor Code of the Russian Federation);

9) the employee's refusal to be transferred to work in another locality together with the employer (part one of Article 72.1 of the Labor Code of the Russian Federation);

10) circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation);

11) violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation or other federal law, if this violation excludes the possibility of continuing work (Article 84 of the Labor Code of the Russian Federation).

An employment contract may also be terminated on other grounds provided for by the Labor Code of the Russian Federation and other federal laws.

Termination of an employment contract by agreement of the parties implies the mutual desire of the employee and the employer to terminate the employment contract (Article 79 of the Labor Code of the Russian Federation). The employment contract is terminated at the time agreed by the parties, that is, at any time. The agreement on termination of the employment contract does not exclude the possibility of dismissal of the employee at his own request or, if there are grounds for this, at the initiative of the employer.

Termination of the employment contract at the initiative of the employee implies the desire to terminate the employment contract of one party (employee), and the employer is obliged to terminate relations with the employee after the warning period has expired.

The employee has the right to terminate the employment contract by notifying the employer in writing no later than two weeks in advance, unless another period is established by the Labor Code of the Russian Federation or other federal law. The specified period begins the next day after the employer receives the employee's application for dismissal.

By agreement between the employee and the employer, the employment contract may be terminated even before the expiration of the notice of dismissal.

In cases where the employee’s application for dismissal on his own initiative (of his own free will) is due to the impossibility of continuing his work (enrollment in an educational institution, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts, containing norms of labor law, local regulations, terms of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee's application.

Prior to the expiration of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out if another employee is not invited to his place in writing, who, in accordance with the Labor Code of the Russian Federation and other federal laws, cannot be refused to conclude an employment contract.

The employer, before the expiration of the notice of dismissal, is not deprived of the right to dismiss the employee if he has committed an offense that is the basis for dismissal.

Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer is obliged to give the employee a work book, other documents related to work, at the written request of the employee, and make the final settlement with him.

If the employment contract has not been terminated after the expiration of the term of notice of dismissal and the employee does not insist on dismissal, then the employment contract continues.

The right to terminate the employment contract at the initiative of the employee is granted not only to the employee who has concluded an employment contract for an indefinite period, but also to the employee working under a fixed-term employment contract.

If an application for termination of an employment contract is submitted by an employee who has not reached the age of 18, the consent of the relevant state labor inspectorate and the commission on minors must first be obtained.

Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004 contains a provision explaining to the courts the issues of application of legislation governing the termination of an employment contract at the initiative of an employee concluded for an indefinite period, as well as a fixed-term employment contract (paragraph 3 of article 77, article 80 of the Labor Code of the Russian Federation ). Keep in mind the following:

a) termination of the employment contract at the initiative of the employee is permissible in the case when the filing of an application for dismissal 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 this circumstance is subject to verification and the obligation to prove it rests with the employee;

b) the employment contract may be terminated at the initiative of the employee and before the expiration of the two-week notice period for dismissal by agreement between the employee and the employer.

An employment contract may be terminated at the initiative of the employer in the following cases:

1) liquidation of the organization or termination of activity by an individual entrepreneur;

2) reduction in the number or staff of employees of the organization, individual entrepreneur;

3) inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification;

4) change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);

5) repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;

6) a single gross violation of labor duties by an employee:

a) absenteeism, that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);

b) the appearance of an employee at work (at his workplace or on the territory of the organization - the employer or the facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication;

c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;

d) committing at the place of work theft (including small) property of others, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) a violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;

7) the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer;

8) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

9) making an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;

11) submission by the employee to the employer of false documents when concluding an employment contract;

12) is no longer valid.

13) provided for by the employment contract with the head of the organization, members of the collegial executive body of the organization;

14) in other cases established by the Labor Code of the Russian Federation and other federal laws.

The certification procedure (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of employees.

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or a lower paid job) which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

In the event of termination of the activities of a branch, representative office or other separate structural subdivision of an organization located in another locality, termination of employment contracts with employees of this subdivision is carried out according to the rules provided for in cases of liquidation of the organization.

Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where the guilty actions that give grounds for the loss of confidence, or, accordingly, an immoral offense are committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer.

It is not allowed to dismiss an employee at the initiative of the employer (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during the period of vacation.

When considering a case on the reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.

When considering reinstatement cases, it should be borne in mind that when implementing the guarantees provided by the Labor Code of the Russian Federation to employees in the event of termination of an employment contract with them, the general legal principle of the inadmissibility of abuse of the right, including by the employees themselves, must be observed. In particular, it is unacceptable for an employee to conceal temporary disability at the time of his dismissal from work or the fact that he is a member of a trade union or the head (his deputy) of an elected trade union collegial body of an organization, its structural divisions (not lower than shop and equated to them), not released from the main job, when the decision on the issue of dismissal should be made in compliance with the procedure for taking into account the reasoned opinion of the elected trade union body of the organization or, accordingly, with the prior consent of the higher elected trade union body.

If the court establishes that the employee has abused the right, the court may refuse to satisfy his claim for reinstatement (changing the date of dismissal at the request of the employee dismissed during the period of temporary incapacity for work), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of dishonest actions on the part of the employee (clause 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004).

As a general rule, the parties cannot include in the employment contract additional grounds for the dismissal of employees other than those provided for in the law, as this can be considered as a decrease in the level of guarantees for employees. In accordance with Part 2 of Art. 9 of the Labor Code of the Russian Federation, labor contracts cannot contain conditions that restrict the rights or reduce the level of guarantees for employees in comparison with those established by labor legislation and other regulatory legal acts containing labor law norms. If such conditions are included in the employment contract, then they are not subject to application.

Termination of an employment contract at the initiative of the employer with pregnant women is not allowed, except in cases of liquidation of the organization or termination of activity by an individual entrepreneur.

Part 1 Art. 261 of the Labor Code of the Russian Federation prohibits the dismissal of pregnant women at the initiative of the employer. The prohibition on dismissal applies to all grounds for dismissal at the initiative of the employer, specified both in the Labor Code of the Russian Federation and in other federal laws.

The dismissal of a pregnant woman on other grounds not related to the initiative of the employer, including due to circumstances beyond the control of the parties to the employment contract (Article 83 of the Labor Code of the Russian Federation) and in case of violation of the rules for hiring (Article 84 of the Labor Code of the Russian Federation), is carried out in general order.

In the event of the expiration of a fixed-term employment contract during the woman's pregnancy, the employer is obliged, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, to extend the validity of the employment contract until the end of pregnancy. A woman whose employment contract has been extended until the end of pregnancy is obliged, at the request of the employer, but not more than once every three months, to provide a medical certificate confirming the state of pregnancy. If at the same time the woman actually continues to work after the end of pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day when the employer found out or should have found out about the fact of the end of pregnancy.

An employment contract extended in this way, by virtue of a direct indication of the law, does not cease to be urgent. At the same time, a woman is provided with all the benefits to which she is entitled in connection with pregnancy, including the right to transfer to another job and to be released from work while maintaining average earnings if such a transfer is impossible.

It is allowed to dismiss a woman due to the expiration of the employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of the absent employee and it is impossible, with the written consent of the woman, to transfer her before the end of pregnancy to another job available to the employer (as a vacant position or job, corresponding to the woman's qualifications, as well as a vacant lower position or lower paid job) that a woman can perform, taking into account her state of health. At the same time, the employer is obliged to offer her all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

Termination of an employment contract with women with children under the age of three, single mothers raising a child under the age of fourteen (a disabled child under eighteen), other persons raising these children without a mother, at the initiative of the employer is not allowed (except dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of the first part of Article 81 or paragraph 2 of Article 336 of the Labor Code of the Russian Federation).";

An employment contract is subject to termination due to the following circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation):

1) conscription of an employee for military service or sending him to an alternative civilian service that replaces it;

2) reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court;

3) non-election to office;

This basis applies to those employees who were not elected to a position for the second time for their position, although they applied for it. If the employee did not submit documents for election to the position, then he is dismissed due to the expiration of the employment contract under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

4) condemnation of the employee to a punishment that precludes the continuation of the previous work, in accordance with a court verdict that has entered into force;

5) recognition of an employee as completely incapable of work in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation;

The recognition of an employee as completely incapable may take place in accordance with a medical certificate issued by an authority or institution that has the competence to issue such an opinion.

6) death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as dead or missing;

In accordance with Art. 45 of the Labor Code of the Russian Federation, a citizen may be declared dead by a court if there is no information about his place of residence in his place of residence for five years, and if he has gone missing under circumstances that threaten death or give reason to assume his death from a certain accident, - in within 6 months.

7) the onset of emergency circumstances that prevent the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a public authority of the relevant subject of the Russian Federation;

8) disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract;

Disqualification is the deprivation of an individual of the right to hold senior positions in the executive management body of a legal entity for a period of 6 months to 3 years. In addition to disqualification, there may also be expulsion from the territory of the Russian Federation of a foreign citizen (or stateless person) who was in an employment relationship with the employer.

9) expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, the right to carry weapons, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of the employee to fulfill the obligations under the employment contract;

10) termination of access to state secrets, if the work performed requires such access;

11) cancellation of a court decision or cancellation (recognition as illegal) of a decision of the state labor inspectorate on the reinstatement of an employee at work.

An employment contract is terminated due to a violation of the rules for its conclusion established by the Labor Code of the Russian Federation or other federal law, if the violation of these rules excludes the possibility of continuing work, in the following cases:

the conclusion of an employment contract in violation of a court verdict depriving a particular person of the right to hold certain positions or engage in certain activities;

conclusion of an employment contract for the performance of work that is contraindicated for this employee for health reasons in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation;

the absence of an appropriate document on education, if the performance of work requires special knowledge in accordance with a federal law or other regulatory legal act;

the conclusion of an employment contract in violation of the decision of a judge, body, official authorized to consider cases of administrative offenses, on disqualification or other administrative punishment that precludes the employee from fulfilling obligations under an employment contract, or the conclusion of an employment contract in violation of the restrictions, prohibitions and requirements established by federal laws concerning the involvement in labor activity of citizens dismissed from the state or municipal service;

in other cases stipulated by federal laws.

If the violation of the rules for concluding an employment contract established by this Code or other federal law is not due to the fault of the employee, then the employee is paid a severance pay in the amount of the average monthly salary. If the violation of these rules is due to the fault of the employee, then the employer is not obliged to offer him another job, and the employee is not paid severance pay.

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

The termination of the employment contract is formalized by the 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 the general rules, the day of termination of the employment contract is always the last day of the employee's work, except in cases where the employee did not actually work, but the place of work was retained for him.

On the day of termination of the employment contract, the employer must:

• issue a work book to the employee (if the employee is not at work on the day of dismissal, then a notification is sent to him about the need to pick up the work book or agree to send it by mail);
• make a calculation with him in accordance with;
• at the written request of the employee, issue certified copies of documents related to work.

An entry in the work book on the basis and reason for the 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 professionals as to which wording to use: “employee fired”, “employment contract terminated” or “employment contract terminated”? The Labor Code does not give an unambiguous answer to this question, so employers often choose the wording at their discretion.

Grounds for dismissal of an employee

1. Dismissal during probationary period

The establishment of a probationary period for employment is regulated by Art. 70 TK. It provides a list of employees who are not subject to a probationary period:

• persons elected on the basis of a competition for the relevant position held in accordance with the procedure 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 for the first time come to work in the acquired specialty within one year from the date of receiving professional education of the appropriate level;
• persons elected to an elective position for paid work;
• persons invited to work in the order of transfer from another employer as agreed between employers;
• persons concluding an employment contract for a period of up to two months;
• to other persons in cases stipulated by the Labor Code, other federal laws, a collective agreement.

The probation period may not 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, personnel officers must record any deviations in the work of a new employee using memoranda, acts. When the trial period ends and the employer evaluates the results of the newcomer unsatisfactorily, he must document the validity of his decision.

The employer can terminate the employment contract before the expiration of the test period with an unsatisfactory result, but he will need to notify the employee in writing (in the notification format) no later than three days, indicating the reasons that served as the basis for 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 the employee refuses to sign the notification, an appropriate act is drawn up, which records the fact that the employee has read the notification and refuses to sign it. Based on the notification, an order T-8 is issued to terminate the employment contract. If the employee refuses to sign the order, then at the bottom of the order the personnel officer makes an inscription by hand that the employee was familiarized with the order, but refused to sign, or an appropriate act is drawn up. In any case, it is important to record the fact that the employee is familiar with the order.

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

2. Voluntary dismissal

Which article of the TC to focus on:.

The employee has the right to terminate the employment contract at his own request, but he must notify the employer in writing no later than two weeks in advance, unless another 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 application for dismissal. By agreement of the parties, this period may be reduced.

In cases where the 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 grounds when such an option is possible: enrollment in an educational institution, retirement, established violation of labor legislation by the employer, etc. The practice of labor relations shows that there are many more reasons to reduce the notice period. For example, an illness that prevents the continuation of this work, if there is an appropriate medical certificate; moving to another area ().

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

Prior to the expiration of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out if another employee is not invited to his place in writing, who, in accordance with the Labor Code and other federal laws, cannot be refused to conclude an employment contract. For example, in Art. 64 of the Labor Code states that it is forbidden to refuse to conclude an employment contract for employees invited in writing to work in the order of transfer from another employer.

Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer must:

• issue a work book to the employee;
• issue other documents related to work, at the written request of the employee;
• make a settlement with him.

How to draw up documents?

When an employee has the right to reduce the notice period, he writes the date of dismissal, which is mandatory for the employer, that is, he cannot unilaterally change this date on his own. Sometimes an employee is not entitled to a benefit, but asks to be fired earlier. For example, he writes a statement on May 15, and asks to be fired on May 19. In this case, the employer may act under Art. 80 TK. If he agrees to dismiss earlier, he accepts the application and issues an order. If he does not agree, 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 a two-week notice and asks for a new application.

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

3. Dismissal by agreement of the parties

Which article of the TC to focus on:.

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: "The 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, it is necessary to proceed first of all from the fact that the word “agreement” itself indicates a peaceful basis for termination of employment relations.

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

4. Dismissal due to the expiration of the employment contract

Which article of the TC to focus on:.

The grounds on which a fixed-term employment contract is concluded are spelled out in. Most often - for the duration of the performance of the duties of an absent employee, for whom the place of work is retained.

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

Sometimes it is impossible to determine the expiration date of the employment contract in advance, in which case the contract does not indicate the expiration date, but the condition. In this case, it is not necessary to notify the termination of the employment contract, since the very fact that the main employee enters work means the termination of the employment contract of the employee who replaced him.

In Art. 193 of the Labor Code spells out how to issue a disciplinary sanction. The algorithm of actions of the employer 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 business days). The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction. In the presence or absence of an explanation, the employer makes a decision based on his assessment of the employee's actions.

The deadlines for applying the penalty must be taken into account - no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, he was on vacation, as well as the time required to take into account the opinion of the representative body of employees. A disciplinary sanction may not be applied later than six months from the day the offense was committed.

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

If misconduct is proven, disciplinary action will be taken. With “soft” variants of violations, the employee is first reprimanded. At the same time, the order on the application of 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 deal with 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 the fact of violation of labor legislation is established.

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

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

Letters are sent to the employee with a request to give an explanation of the reasons for the absence (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 recognize the missing employee as missing through the court. According to Art. 42 of the Civil Code of the Russian Federation, a citizen may, at the request of interested persons, 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, part 1, art. 83 of the Labor Code of the Russian Federation.

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It establishes 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, nor on the nature of the work function performed by the employee, nor on the legal status of the employer.

The 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 the employment contract before its expiration at the initiative of the employee is not related to the presence of good reasons for him. He is only obliged to notify the employer in writing no later than two weeks in advance.

The head of the organization is obliged to warn the employer (the owner of the property of the organization 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 concluded 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 periods begin on the next day after the employer receives the employee's application for dismissal. So, if the 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 (the day of dismissal) (see commentary to Article 84.1).

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

3. By agreement between the employee and the employer, the employment contract may be terminated even 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 consent of the employer to the dismissal has legal significance and without such consent the employment contract cannot be terminated (see commentary to Article 78).

If the employee himself expressed a desire to terminate the employment relationship and asks to dismiss him before the expiration of the established notice period, the consent of the employer to the very termination of the employment contract does not play a legal role. It only matters to determine 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 specified by the parties (clause 3, part 1, article 77 of the Labor Code).

At the same time, it is very important not only the presence of the will of the employee to dismiss on his own initiative, but also the form of expression of such a will. The agreement of the parties on early (before the expiration of the 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 applied for dismissal from an earlier date.

A verbal 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 declared unfounded the decision of the Railway Court, which refused c. L. in reinstatement at work under the following circumstances.

On February 15, 2006, L. applied to her employer with an application for dismissal of her own free will from February 16, 2006, but the application was not signed. According to the employer, she will be fired after another candidate for her position is found. L. continued to work, but on 20 February 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, refused to satisfy her claim, referring to the fact that the employment contract was terminated within the period specified by the parties.

Revoking the decision of the Zheleznodorozhny 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 term of notice of 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 of dismissal * (59) .

If the employer has not agreed to terminate the employment contract before the expiration of the warning period, the employee is obliged to work for the established period. Early termination of work in this case violates labor discipline. Termination of work without notice of dismissal will also be a violation of labor discipline. An employee who arbitrarily left work may be dismissed for absenteeism.

In turn, the employer does not have the right to dismiss the employee until two weeks have passed after the application for termination of the employment contract has been submitted. This rule also applies to cases where the employee does not indicate the specific date of dismissal in the application at all. In other words, if the employee did not indicate the date of termination of the labor right in the letter of resignation, then the general rule applies, i.e. dismissal is made two weeks after the application is submitted.

This is also the case for jurisprudence. Thus, the Nizhny Novgorod Regional Court, considering the case of voluntary dismissal of N., who filed an application without specifying a specific date of dismissal (that is, who had no intention of terminating the employment contract before the expiration of two weeks and did not raise the issue of reaching an appropriate agreement with the employer), pointed out that under such circumstances, the employment contract could be terminated by the employer only after the expiration of the notice period, i.e. after two weeks from the date of application * (60) .

A similar decision was taken by the Ryazan Regional Court, which found justified the decision of the court of first instance to reinstate A., who on 8 August 2006 filed a voluntary resignation, assuming that he would be dismissed after a two-week period. However, he was dismissed by order of August 9, 2006 * (61)

4. In cases where the employee's application for dismissal of his own free will 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 service), the employer is obliged to terminate the employment contract in the period specified in the employee's application. The same obligation arises in case of violation by the employer of labor legislation and other regulatory legal acts containing labor law norms, local regulations, terms of a collective agreement, agreement or employment contract.

At the same time, it must be borne in mind that these violations can be established, in particular, by bodies exercising state supervision and control over compliance with labor legislation, trade unions, commissions on labor disputes, the court (paragraph 22 of the decision of the Plenum of the Supreme Court of the Russian Federation of March 17 2004 N 2).

5. The employee can warn the employer about the 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, vacation, 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. Having warned the employer about the dismissal in advance, the employee provides him with such an opportunity. It does not matter if he is at work, on vacation or sick.

The employer has the right to start looking for a new employee from the moment of filing a letter of resignation. Therefore, all this time from the date of filing an application for dismissal of one's own free will is counted in the notice period for dismissal. If an employee on leave asks to be fired before the expiration of the notice period established by law, and the employer agrees, the dismissal is made within the period requested by the employee.

The employer has the right to terminate the employment contract with the employee at the end of the period of notice of dismissal and if during the period of notice the employee falls ill, since the period of illness does not suspend the period after which the employee is subject to dismissal. Dismissal of an employee of his own free will in accordance with his application is also possible during a period of temporary disability, since the initiative to dismiss comes from the employee, and not from the employer.

6. The decision of the employee to quit 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 its resolution of March 17, 2004 No. 2 specifically explained that termination of an employment contract at the initiative of an employee is permissible in the case when the filing of an application for dismissal was his voluntary expression of will. If the plaintiff claims that the employer forced him to file a letter of resignation of his own free will, then these circumstances are subject to verification and the obligation to prove them rests with the employee (paragraph "a", paragraph 22).

Any pressure on the part of the employer, including the threat to dismiss him on his own initiative, in cases where the employer had any reasons for this, can be considered as coercion to dismiss an employee of his own free will. Otherwise, it is impossible to talk about the termination of the employment contract at the initiative of the employee.

This conclusion was rightly made by the Laginsky District Court of Elista, satisfying the claim for the reinstatement of c. U., who filed a letter of resignation of her own free will under pressure from the manager, who threatened her to "spoil the work book", dismissing her "under the article" for losing the report and failing to submit it * (62) .

7. Part 4

The Labor Code provides for a number of grounds for terminating an employment contract, which are referred to in article 77. According to it, the employer and employee can terminate their employment relationship at the initiative of either party. In this article, we will look at exactly how the termination of an employment contract can occur.

General order

According to the Labor Code, when terminating an employment contract, an order or instruction from the employer must be issued, with which the employee must be familiarized by signature. If the employee refuses to sign the document, a corresponding entry is made on the order. A copy of the order or order, at the request of the employee, can be issued to him in his hands.

In any case, the day of termination of the employment contract is the last working day of the employee (with the exception of cases when the employee did not actually work, but his job was retained).

The employer is obliged to make an entry in the work book in full accordance with the Labor Code. This means that the wording must necessarily indicate the article, paragraph or part of the article.

On the last working day - the day of dismissal - the employer is obliged to give the employee a work book and full payment. If the employee did not appear for the documents, a notification should be sent to him about the need to receive a work book. If an employee who has not received a book on time requests that it be given to him, the employer is obliged to do this within three days from the date of the request (meaning three working days).

Agreement of the parties (Article 78 of the Labor Code of the Russian Federation)

If the employer and employee decide to terminate their employment relationship by agreement of the parties, then the employee must submit an application with a request to dismiss him in accordance with paragraph 1 of Art. 77 of the Labor Code of the Russian Federation. Such dismissal is significantly different from dismissal of one's own free will. For example, if an employee, after being fired, registers as unemployed, the allowance will be determined for him not on the basis of the minimum wage, as for the one who was dismissed of his own free will, but on the basis of the official salary at the last place of work.

The agreement on termination of the employment contract is concluded in writing and, in fact, is an additional agreement that is attached to the employment contract. It is concluded between the employee and the employer in the absence of mutual claims. On behalf of the employer, the agreement can be signed by a human resources inspector or other authorized person. Such an agreement, as a rule, satisfies the interests of the employee. For example, he may receive compensation for termination of the employment contract, or the administration of the enterprise will refuse to withhold the cost of training the employee (if training took place).

Termination of a fixed-term employment contract (Article 79 of the Labor Code of the Russian Federation)

If an employee works under a fixed-term employment contract, then three days before the deadline for its expiration - the actual dismissal - the employer must notify the employee in writing. This means that the employee must be given or mailed a notice of termination of the employment contract. A fixed term contract can be:

• to perform the duties of a temporarily absent employee (such an agreement must be terminated simultaneously with the release of this employee to his place of work);
• for the duration of a certain work (such an agreement is terminated upon completion of the work specified in it);
• contract for the performance of seasonal work (such an contract is terminated at the end of the season).

But there is one subtlety in the issue of terminating a fixed-term contract: if a pregnant woman works under it, then the term of such an agreement is extended until she has the right to maternity leave.

If an employee working under a fixed-term contract wants to quit of his own free will, then he must submit an application addressed to the manager (that is, notify him) three days before the date of dismissal.

Termination of the employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation)

Dismissal at the initiative of an employee is nothing more than a dismissal of one's own free will. The employee has the right to apply for resignation of his own free will at any time, at least two weeks before the date of dismissal, and the head of the organization - one month before. The reason for such dismissal may be any personal circumstances. But if the employee quits due to:

• with admission to an educational institution;
• retirement;
• moving to another area;
• due to violations of labor laws by the employer;
• he has the right to be fired without work.

During the working time, the employee has the right to change his mind and withdraw his application. In this case, he will continue to work in his place, unless, of course, a new employee has already been hired for him, who cannot be refused employment for some reason.

If the employee nevertheless quits, then on the last working day the employer is obliged to pay the employee in full, paying him the wages due, compensation, vacation pay, and also issue all the necessary documents and a work book.

An employee who has not withdrawn his application, but does not insist on dismissal, and the employer did not calculate it on time and did not issue documents, is considered to continue working, and his application for dismissal is recognized as invalid.

Termination of an employment contract at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation)

The employer, like the employee, has the right to terminate the employment contract on his own initiative. Grounds for termination may be general or additional. The general ones apply to all employment contracts, and the additional ones apply to employment contracts for certain categories of employees. Termination of an employment contract on general grounds can occur in several cases:

• upon liquidation of the enterprise;
• when reducing the staff or number of employees;
• due to the inconsistency of the employee with the position held (due to low qualification, which is confirmed by attestation documents, for health reasons - confirmed by a medical report);
• due to a gross single violation of labor duties by an employee (absenteeism, going to work in a state of alcohol, drug or toxic poisoning, disclosure of state or commercial secrets);
• due to repeated non-fulfillment of labor duties (if the employee already has disciplinary sanctions);
• committing theft, embezzlement, deliberate destruction and damage to property;
• violations of labor protection requirements that caused an accident, accident, catastrophe or created a real threat to them;
• for committing immoral acts (for teachers);
• in case of loss of trust (for financial workers);
• for making unreasonable decisions that led to the misuse of property (for managers, deputy heads, chief accountants);
• for providing false documents when concluding an employment contract.

It is worth noting that in order to terminate an employment contract with an employee on one of these grounds, the employer must have supporting documents. This means that the appearance at work in a state of intoxication must be recorded by an act confirming the presence of the employee at the workplace, and a medical report.

An employer cannot dismiss an employee who is on sick leave or vacation (an exception is the liquidation of an enterprise).

If the employer is an individual entrepreneur, then upon termination of his activity, he may terminate employment contracts with his employees. In this case, the basis for terminating the employment contract will be an extract from the USRIP.

Additional grounds for terminating an employment contract

Termination of the employment contract by the employer is also possible on additional grounds, which are stipulated in other regulations. For example, pedagogical workers can be fired for using inappropriate methods of education (these include physical or psychological violence) or violating the Charter of an educational institution (Federal Law “On Education”), and civil servants for disclosing information constituting state secrets or engaging in entrepreneurial activities (FZ "On Public Service").

With whom it is impossible to terminate the employment contract at the initiative of the employer?

• pregnant women;
• women who have children under three years of age;
• single mothers who have children under the age of 14 or have a disabled child under 18;
• other persons who are raising children without a mother.

Dismissal in the order of transfer

Such a dismissal can only be made if there is a corresponding application from the employee and confirmation from another employer of consent to hire him (this may be a letter of guarantee or a signed application for employment). If we are talking about election to any elective position, then the employee must provide a document confirming the election.

Dismissal of an employee due to refusal to continue work (Article 75 of the Labor Code of the Russian Federation)

Such a dismissal is possible if there has been a change in the ownership of the organization's property, a reorganization or a change in the jurisdiction of the institution. In this case, the employee simply submits a letter of resignation. This rule does not apply to the chief accountant, head and his deputy. An employment contract with them can be terminated at the initiative of the new owner of the organization's property within three months after the property rights arise for him.

Dismissal of an employee due to a change in essential working conditions

In practice, situations often arise when, when organizational or technological working conditions change, the terms of the employment contract also change, but without a fundamental change in the labor function. The employee must be notified of such changes in writing two months prior to their introduction. If the employee is not satisfied with the new conditions, the employer is obliged to offer him another job (the offer is also made in writing), which corresponds to his qualifications and state of health. If there is no such work, and the employee does not agree to work in the changed conditions, the employment contract is terminated (Article 73 of the Labor Code of the Russian Federation).

Sometimes changes in working conditions can lead to mass layoffs. In these cases, part-time work is possible, which can be introduced in agreement with the trade union for up to six months. If the employee refuses to work in the new conditions, then the termination of the contract occurs in accordance with Article 81 of the Labor Code of the Russian Federation.

Dismissal for health reasons

The employee has the right to apply for other work in accordance with his state of health, which must be confirmed by medical documents. But if the organization does not have a suitable job or the employee refuses to transfer, then the termination of the employment contract occurs in accordance with article 77, clause 8 of the Labor Code of the Russian Federation. The documents must include a medical report, an employee's statement about his transfer to another job and documents confirming the absence of a suitable job (or the employee's refusal to transfer to a specific job).

Termination of the employment contract in connection with the relocation of the employer to another locality

It happens that the owner of the enterprise transfers production to another area. In this case, the employer is obliged to notify the employees in writing about the transfer of production, and upon receipt of a refusal to transfer together with the organization, terminate the employment contract with those who refused.

Termination of an employment contract due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation)

The grounds for terminating an employment contract with the wording “due to circumstances beyond the control of the parties” can be very different, for example:

• conscription;
• reinstatement of the former employee (by court order or decision of the labor inspectorate);
• the inability to transfer to another job at the request of the employee;
• non-election to office;
• recognition of an employee as disabled according to medical documents;
• condemnation of an employee to punishment (by a court decision), disqualification, administrative punishment, excluding the possibility for the employee to perform his duties;
• the death of an employee or his unknown absence;
• emergency circumstances (natural disasters, catastrophes, wars, epidemics, accidents), which are recognized by the decision of the Government of the Russian Federation.

The procedure for terminating an employment contract in this case requires the provision of documentary evidence of the occurrence of circumstances, and then, on the basis of the documents submitted (summon from the military registration and enlistment office, death certificate, court decision, medical report, etc.), an order is issued to terminate the employment contract.

But in some cases, the employer may offer the employee a transfer to another position. For example, when a former employee is reinstated by a court decision, the employer has the right to offer the employee who worked in his place another job.

Termination of an employment contract due to violations during its conclusion (Article 84 of the Labor Code of the Russian Federation)

Sometimes the labor inspectorate reveals violations that were made when concluding an employment contract. Such contracts must be terminated by law. The reasons can be very different, for example:

• the contract was concluded with an employee who, by a court decision, is prohibited from holding this position or performing specific work (in this case, the employee must first be offered another job in writing, and if he refuses, terminate the employment contract with him);
• the contract was concluded for the performance of work that is contraindicated for the employee for health reasons (there must be a medical certificate);
• the contract was concluded with an employee without specialized education (if, in accordance with regulatory enactments, the position or type of work performed by the employee requires special education of a certain level).

In any of these cases, the employer who allowed the conclusion of an unauthorized contract is obliged to pay the employee a severance pay in the amount of average earnings. The exception is the situation when the employee misled the employer. In this case, the contract with the employee is terminated at the initiative of the employer (provision of false documents).

Peculiarities of termination of an employment contract with foreign citizens

If the employer cooperated with a foreign citizen, then within three working days after the termination of the employment contract with him, he must report this to the territorial body of the FMS, the employment center and the territorial tax authority.