Sometimes citizens are interested in what article is they dismissed at their own request? Some still confuse the procedure for the termination of the contract (Art. 80 of the Labor Code of the Russian Federation) and the basis for dismissal (paragraph 3 of Part 3 of Article 77), and sometimes even remember Kzot, which is not valid from 01.02.02, will answer this question.
Options and ways to stop working relationships are considered in detail in Art. 80 TC RF. At the same time, the most common foundation for dismissal is the cessation of working relationships on the initiative of the employee (paragraph 3 of Part 1 of Article 77 of the Labor Code of the Russian Federation). According to this basis, will be recorded in the form. This is told in.
What provisions on their own request contains the Labor Code?
Let's talk about the standards that contains Labor Code 2016. The dismissal of one's own request has to make out quite often. According to Part 1 of Art. 80 of the Labor Code of the Russian Federation, the employee has the right to terminate any contract for its initiative - urgent, or concluded indefinitely. The decision on its termination is made to them at its own discretion. Any rejunction to the employer of a citizen to take advantage of this right is unacceptable.
If the employee decided to leave the company, he must warn the employer about this, submitting a written statement. According to Part 1 of Art. 80 of the Labor Code of the Russian Federation, this must be done no later than 2 weeks, unless otherwise provided. After receiving a statement, the employer cannot refuse to satisfy the request of the worker. The termination of the contract will be produced in the deadlines. The employer is not entitled to change the date of the last day of the work indicated in the statement. The day after receiving the statement by the head of the statement, the expiration date of the dismissal prevention begins (part 1 of Article 80 of the Labor Code of the Russian Federation). At this time, the so-called "working out" begins, in which the employee must fulfill all his working responsibilities.
The employer and employee can agree on the cessation of working relationships without working out. The employer's consent to this can be expressed in the document on the document: "Missify (date) in accordance with the statement."
Express your opinion on the article or ask the question to experts to get the answer
The list includes:
- employee disease;
- retirement;
- urgently need to care for a disabled child;
- the deputy for the care was submitted by a specialist who has already reached retirement age;
- the employee's family decided to move to another city;
- a person must begin to care for a seriously ill relative;
- the employee entered the university.
It is not necessary to personally submit a statement by the main official of the enterprise. A specialist can give paper by a personnel staff. It should be remembered that the current legislation does not enshrine the above reasons in the regulatory and legal acts. However, if the employer refuses an employee at the request of the Earlier, if there is an indicated circumstance, a person has the right to apply to the court. The state authority will make a positive decision on the case in favor of a specialist.
How to quit on your own accord without work
Employer this time separates the search for another employee to change the dismissal, thereby minimizing the possible damage associated with the departure of the employee. When dismissal without working, be sure to work out the required period is not necessary if:
- The employee falls into a situation that impede the continuation of the workflow and the execution of labor functions;
- Violations of the company's requirements of the Labor Code of the Russian Federation, the conditions of employment contract or internal documentation, for example, a collective agreement (late payment of wages, refusal to provide guarantees under the TK RF - vacation, hospital).
In these paragraphs, the employee forms a statement providing for the desired dismissal date, which this procedure will be carried out. The application must present the appropriate basis for the lack of working, confirmed documented.
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The employee must check the information for reality and current legislation. The record should contain a reference to Article 80 of the Labor Code of the Russian Federation. If a person notices that the inscription does not meet the established standard, it can sue.
Attention
If a person leaves his own desire, the day is the day next after the day of dismissal. If an enterprise does not have time to list the balance of funds, which must be accrued as wages at the prescribed period, this is a reason for appealing to the appropriate instance. For the period of delay, the employee has the right to recover Penny.
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If the employee is going to quit on his own desire, do not expect that he will definitely work out for 2 weeks. The rules of labor legislation in 2018 fully admit the absence of working out. For example, he can use his vacation so as not to work until dismissal.
Who has the right to dismissal without working out an employee must warn you about dismissal at your own desire for at least 2 weeks before the termination of the employment contract and work them. You can negotiate and reduce this period (Article 80 of the Labor Code of the Russian Federation), but there are circumstances, liberating employees from working out. The employer does not have the right to be able to work over two weeks from a pensioner or a student.
The employer does not have the right to be able to work over two weeks from a pensioner or a student.
Is the employee dismissal without work
The text turns on:
- Request about dismissal;
- The reason for this (for example, his own desire due to retirement);
- The date that the dismissal should pass;
- The reference to the clause of the Legislative Document, which gives the right to the employee to demand the dismissal of the specified date (3 hours 80 of Art. Tk of the Russian Federation).
The above information is confirmed by the employee through the signature and its decryption. The document should be dated the day of writing. Application for dismissal at your own accord without work out - Example Download An example of an application for the dismissal of an employee for your own request. Download an example of an application for dismissal at your own request without working out the mutual consent of the Parties to the Labor Code of the Russian Federation allows you to stop relations until the end of the term of working out if both parties agree with this.
Mutual consent must be confirmed documented.
Dismissal at your own desire without work
This wording can be applied to a disabled person if its disability does not make it possible to fulfill the duties prescribed by the position and prevents the workflow to continue. At the same time, the invalid should lead a documentary confirmation of what is valid, due to its disabilities, he cannot continue to work, and therefore it should be dismissed in the day. Such a document may be a certificate received from the attending physician.
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In determining the possibility of abolishing ahead of the deadline for the end of the development, the nature of the work performed should be taken into account. After all, the reason for which the disability is established is in one job may prevent the performance of functions, and on the other not to create any restrictions. For example, the lack of foot will not allow the workload to work, but does not prevent work on seating works, for example, as an accountant.
How to quit without working two weeks?
When dismissing an employee at his own request, the law seeks to protect the employer. He obliges a person who wants to leave the previous place of work, notify an official speaking in the role of the employer, 2 weeks before the planned period of termination. During this period, the owner of the company must find the replacement of the employee and make a calculation. However, in practice, the employee can not always stay at the enterprise throughout the established period. For this reason, a person who wants to finish labor activities, the question arises: how to quit 2 weeks to quit on your own accord without working out 2 weeks? We will try to most fully consider it in this article.
How to quit on your own desire without work
If the dismissal does not fall into any of these categories and does not have good reasons for leaving the company on the day of filing the appropriate statement, then for him the only option remains dismissal by agreement of the parties. In this case, it is enough just to negotiate with the employer, write a statement and get your documents. For those who do not know whether it is necessary to work out 2 weeks at dismissal, or it is possible to restrict ourselves to one day, this information is important, because if there is grounds for cancellation, they should be used. This will allow you to reach another job or begin other matters that caused for such quick care from the old place.
Instruction: How to quit without working out two weeks?
Partially other cases are deciphered in acts, some of which were taken during the USSR, however, which else act. In the example, such cases include: if the employer does not consider these reasons for respectful, you are entitled to apply to the court or the ostrududine.
- Moving to another region or city;
- The spouse (spouse) of the employee is transferred to work in another region or abroad;
- The impossibility of living in this area, confirmed by the conclusion of the Medical Commission;
- The inability to continue to work at the enterprise due to the disease (also confirmed by medical documents);
- The need to care for a child-disabled child or other familiar family member;
- Pregnancy.
- The fired employee is entitled not to appear at work during the development, if it is on the hospital.
Dismissal without working ─ Myth or reality?
For example, to the number of state supervision and control over compliance with labor legislation include the State Labor Inspectorate and the Prosecutor's Office. The procedure for inspections of the State Labor Inspection is still somehow settled. The inspector issues an act of verification and from the date of its preparation, the violation can be considered established.
And if the inspector was wrong and this will further establish a court or a higher inspector? What to do in this case? The order of the prosecutor's check is settled only by the Law on the Prosecutor's Office. According to the results of the prosecutor's audit, it is not provided for drawing up any act of verification or other document that would record all the identified disorders.
Dismissal at your own request is the least conflict procedure for dismissal, due to the will of the employee ("own desire") in the form of a statement and provided for by the Labor Code of the Russian Federation. Dismissal at your own desire without work is possible only in some cases that we will consider below.
Essentially, this procedure for the cessation of labor relations is the most acceptable for both parties to the employment contract.
The procedure in the TK RF is also called dismissal on the initiative of the employee.
First, we analyze the legislative framework of the regulation and the main problem situations arising in connection with the procedure.
Application blank for dismissal at your own request
Dismissal at your own request: Article 80 TC RF
The basic legal regulation of dismissal is made by Article 80 and 77 of the Labor Code of the Russian Federation.
Article 80 of the Labor Code of the Russian Federation sounds as follows (in the article underlined the most "Dangerous" momentscausing disputes between the employee and the employer):
What if you are forced to quit yourself at your own accord?
If you are forced to quit on your own accord, first of all it is necessary to collect a sufficient evidentiary base that your will was not on the cessation of labor relations.
- Read more in the article on the argument to dismissal under Article 80 of the Labor Code of the Russian Federation.
Is it necessary to work out when dismissal under Article 80 of the Labor Code of the Russian Federation?
You can read more about the dismissal at your own desire without working on the link.
Termination of the employment contract when dismissal at their own request can be made:
- after two weeks after the warning of the employer employee in writing;
- at any time agreed by the parties to the employment contract (accordingly, if the employer also agrees to stop labor relations early);
- on the period established by the employee itself in the statement - under the following circumstances:
1) the employer violated labor legislation, local regulations;
2) The employee does not have the ability to perform a labor function in connection with study and other cases.
Simplified such dismissal is divided into:
- dismissal with "working out";
- dismissal "without work out."
Record in the employment book when dismissing under paragraph 3 of Article 77
The procedure for the dismissal of the employee at their own request
In this way, the order of dismissal at their own request as follows:
- writing an employee of a dismissal statement at his own request;
- working by a worker of a term defined by law, agreement of the parties or an employee designated in a statement;
- termination of the employment contract after the expiry of the term "testing";
- issuance of workbook and all final calculations with an employee.
With all this it is necessary to remember the following rules relating to the procedure:
1. An employer warning is made in writing. Failure to comply with writing in this case is one of the most frequent causes of abuse by the employer rights. A written form means usually submitting an application.
It is very important: the application must be submitted, having appropriate confirmation of delivery. To do this, you need to make a copy of the original statement and ask the authorized person of the employer (director, officers of the office, personnel department or other authorized persons) to make a copy of the application for the adoption ("Statement taken" with the date, signature, decoding and position).
If the employer and its authorized personnel relations refuse to accept applications, send it a valuable letter with the description of the investment on the actual and legal address of the employer. In this case, we recommend additionally sending telegrams with notification and receiving their text.
2. The employee is obliged to work two weeks after writing a declaration of dismissal at his own request..
It must be remembered that the current of a two-week period begins the day after writing a statement. That is, in this case, 14 full days are meant. This term includes workers and non-working days.
Example: a statement about the dismissal on your own accord is written by an employee on Wednesday 8th of the month. So, the term of testing expires on Thursday 23 of the same month.
3. The agreement on reducing the term of working out from the employer (less than two weeks) should be in writing (at least a properly certified by the inscription of the employer at an instance of the employee's statement: "For the term of working 5 days after writing a statement, I agree" or the like).
Possible situation: the employee does not have confirmation that the employer agreed to reduce the period to 5 days (although oral agreement was given). After 5 days of working out, the employee does not go to work, and later finds out that he was fired for the program.
4. The inability to continue the employee of the work, and, as a result, the establishment of the term by the employee themselves should be due to a valid reason. The list of reasons in the article is not closed, but examples are given: studies and retirement. The disrespectful reason can not serve as a basis for establishing an employee of the term independently.
Thus, the dismissal of the pensioner at its own will occurs its own characteristics of the warning.
5. An established violation by the employer of labor laws by the employer means the availability of relevant administrative materials - the Labor Inspection Protocols or the availability of an appropriate court decision, in which the employer was attracted to justice, and in a dispute with a specific employee who expresses the desire to quit on his own request.
Situation: The worker subjectively appreciates that the employer violated his rights and decides to quit on his own request, setting a period of 3 days to work out. Subsequently, he learns about the dismissal for the rushing, as it was obliged to work for another 11 days.
6. The worker has the right to withdraw his statement about dismissal. If the employer ignores it, it is possible to restore through the court at work.
7. The employee has no right to withdraw a statement if The employer invited to this position:
- another employee, to whom he is not entitled to refuse to conclude an employment contract;
- invitation was carried out in writing.
An example of the category of persons who cannot be denied in the conclusion of an employment contract are disabled (certain quotas are established for work), as well as persons invited in order of translation from another employer (Article 64 of the Labor Code of the Russian Federation).
The "written form" of invitations can also cause a lot of questions. The controversial is such a question in the event that an employee who cannot be refused to enter into an employment contract, entered into actual labor relations (there was no written design).
8. Termination of work after the expiration of the warning is the right of an employee, not his duty!
Situation: The worker worked during the warning period, but at the oral agreement with the employer worked another three days excess, and then the job stopped. Subsequently, the employee learned about the dismissal in connection with the bunch.
9. Obtaining an employment record and all calculations (for salaries and other payments) are produced on the last day of work..
Sample application for dismissal at your own request:
According to Article 80 of the Labor Code, the dismissal at their own will occurs at the initiative of the employee due to various reasons: the new supply, moving or other circumstances. This procedure for termination of the contract today is considered one of the most conflict. The reason is that for him, in contrast to the case at the initiative of the employer due to absenteeism or abbreviation, no arguments are required, conducting a special procedure and payment compensation for increased size. Although the order of dismissal is simple, he still has its own rules.
What article is dismissed by your own accord
In Article 80 of the Labor Code of the Russian Federation (TK RF), entitled "Termination of the employment contract on the initiative of the employee (at wish)" details the procedure and rules of this procedure are considered in detail. They concern the reasons for the deadlines for submission and cases of termination of work before the expiration of the prevention period. In addition, the article contains information about the recall of the application.
The order of dismissal at their own request
Any employee, including a pregnant woman, according to paragraph 3 of Article 77 of the Labor Code of the Russian Federation "General reasons for termination of an employment contract," has the right to quit on its initiative due to different circumstances. To make it right, it is important to know the specifics and rules of termination of the employment contract. This will not arise conflicts with the employer and other problems that the process is delayed for a long time.
Duration of dismissal
According to the general rule of Article 80 of the Labor Code of Russia, the employee must warn in writing the employer about the dismissal, submitting an application for 2 weeks to the alleged care. This time starts to be counted the day after the registration of petitions. It is important that the application of the application is registered, otherwise the period of working out can be moved away. Other rules for the dismissal of the employee at their own request:
- a two-week period may be canceled by the written agreement of the employee and the employer;
- the law does not oblige the employee to be in the workplace throughout these 2 weeks (you can go on vacation, at sick leave);
- the general rule of two-week testing has exceptions (at the test period - 3 days, and for a senior position - 1 month).
The head does not have the right to refuse an employee. If this happens, then the employee should know that this is a violation by the employer of the law. Then the application is drawn up in a standard form and sent by mail with a notice of delivery. So you will know about the employer of documents. After 2 weeks you can stop working in the organization. After this period, the employee must issue an employment record and calculation. Otherwise, he has the right to apply to the inspection engaged in such illegal situations and employment disputes.
Application for dismissal
The first thing to make an employee is 2 weeks before the departure to submit an application for dismissal on his own initiative. The next day the countdown of this term will begin. The law does not define accurate requirements, but it should contain several important points:
- Last name, first name, patronymic and position of the head, organization name.
- Surname, name, patronymic of the applicant, i.e. Employee itself.
- The text of the application itself. Includes a request to fire from the position of a certain number (better to write, for example, "August 1, and not" from August 1 "). If necessary, the reason for the termination of the contract is indicated.
- At the end, the date of submission of the application, signature and decoding is set.
Labor legislation allows you to withdraw your petition. This is done in the same form as the application for dismissal on the initiative of the employee. The head has the right to refuse:
- if another person who, according to the law, cannot be deepened to work in the place of the dismissal officer,
- if the employee went on vacation (he had to withdraw the statement before the start of rest).
Causes of dismissal
According to the Labor Code of the Russian Federation, respectful reasons allowing to preserve the experience of the employee, the following cases are considered:
- achieve retirement age;
- need to move;
- some diseases;
- start of study in the highest or secondary special institution;
- care for a sick family member;
- violation of the employment contract by the employer.
It is not necessary to specify the cause if it is not the basis for any compensatory cash payments or the cancellation of the permanent periods. In general, it is worth just write "Please dismiss me at your own request." Additionally, you can specify the reason - "in connection with the retirement". The same formulation of other circumstances is made.
Order of dismissal
If the application for dismissal at your own request does not have a clear sample, then the order for it is compiled according to the T-8 form established by law. It is published in 2 copies, one of which remains in accounting to accrual material payments. The order is made to dismiss on his own request with certain details, such as:
- code on the All-Russian Classifier of Management Activities (OKUD) - 0301006;
- code on the All-Russian Classifier of Enterprises and Organizations (OKPO) is its own for each company;
- name of company;
- the text of the order itself;
- date of preparation.
Development time
The standard term of working out is 2 weeks. It begins the day after applying. But this period is not always saved. Do not work 2 weeks in the case of:
- the employer does not see the need for this;
- the employee has good reasons - entry for full-time student, urgent relocation, becoming a pensioner);
- the employer was broken by the employment contract;
- the worker is on the hospital.
Vacation before dismissal
The employee has the right to quit on his own initiative even during the holidays or before him. The statement in this case is written in the same form. More often in it indicates the phrase "I ask you to give a vacation with subsequent dismissal at your request." In accordance with Article 127 of the Labor Code of the Russian Federation, the last working day is considered the last day of vacation. In this case, it is not required to work 2 weeks.
List of documents when dismissal at their own request
An employee needs to submit only a letter of dismissal. In response, official documents from the following list will be issued:
- labor book with a record made to the foundation of the dismissal issued by the personnel department;
- help 2-NDFL confirming the amount of income received and retained personal income tax;
- certificate of salary for the last 2 calendar years;
- information about payments and other remuneration, about the insurance experience of the Insured employee.
Rights when dismissal at their own accord
Each party has their own rights. For an employee, this is the ability to withdraw the application at any time. The employment contract remains in force if the employee was not fired on the last day. The employer has the right to demand a full-fledged duties from him until dismissal. If you violate the head of the employment contract, an employee may not work out 2 weeks, but only if he was able to prove it in court.
Calculation when dismissal at their own accord
It must be produced on the day of dismissal, i.e. The last worker at the expiration of 2-week workouts. The final calculation includes the payment of all the amounts of the employee. Their number includes:
- wage;
- compensation for unused output leave;
- payments on a labor or collective agreement.
Dismissal on sick leave
An employee may apply, even if the date of dismissal falls for a period of temporary disability. Its employer cannot be changed. After a 2-week period, the management makes a calculation, makes an order with a note of the absence of an employee. For documents and amount due, you can come at any time. The only condition for dismissal procedure - temporary disability allowance is appointed within 10 days after the provision of hospital. It will be paid on the coming day of salary.
On holiday
All calculations at the same time and the issuance of the employment record in this case are produced on the last business day before the holidays. The employee writes a statement about dismissal at his own request under the same conditions. In addition to wages, the employee must be issued by holidays. Compensated payment for unused vacation is already excluded. An employee can get it if he refuses to give him a rest.
After vacation
If an employee has already used his vacation and decided to quit after him, he will have to work out 2 weeks on the general grounds after writing a statement. Payments in this case are the same as leaving work at any other time. They include salary and payments on a labor or collective agreement. If the application was filed before leave with a note of dismissal after it, then the calculation is made on the last working day. Then they give out the workbook. If the vacation was granted an advance, then the amount of excessive released leaves in the amount of 20% is held from the dismissed.
After hospital
If an employee cannot continue to work after the end of the disability period, then in the statement it refers to this reason and confirms it documented. In this case, he can be dismissed on the same day with the work of the calculation and the issuance of the employment record. A person receives compensation for unused vacation, salary and payroll on the hospital leaf.
Dismissal
If an employee is impossible to continue to work, the organization is obliged to terminate the contract with it to the period specified in the application. To do this, it is necessary to provide confirmation documents, for example, a certificate from medical institution about the disease, from the Institute for Admission, etc. Writing the application, registration of the order and familiarization with it during early dismissal occurs in one day. Calculation can be made no later than the next day, including salary and compensatory vacation payments.
How to quit on your own accord
An employee is important to know that he has the right to dismissal at his own request, and the employer cannot refuse to receive applications. It is important to do everything according to the instructions so that there is no disagreement. The procedure, how to quit, includes several stages:
- Writing a statement. An employee who decided to such a step must submit an application for the name of the director within a certain period of time, indicating the reason for his care.
- The publication of the order. After registering the application (for this, it is necessary to trace, and it is better to make a copy for yourself) an order will be formed. It is compiled in standard unified form. The employee must familiarize himself with the order, put his painting in it.
- Dismissal. The employer makes the appropriate entry in the employment record, the employee signs it in a personal card. At the same stage, a full calculation is made on the basis of Article 140 of the Labor Code of the Russian Federation.
How to dismiss the employee on your own accord
The employer needs to sign a dismissal application. Next, you need to arrange an order in the form of the T-8, with which to familiarize the employee. After that, the personnel and accounting department clarifies the information about the period spent in the current month, the provision of leave, the period of hospital and other information necessary for calculating compensation. On the day of dismissal, it is issued by labor, indicating the reason for the dismissal and the payment of due funds.
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New edition of Art. 80 TC RF
The worker has the right to terminate the employment contract, warning about this employer in writing no later than two weeks, unless otherwise established by this Code or other federal law. The course of the specified period begins the day after receiving the employer of the employee's application for dismissal.
By agreement between the employee and the employer, the employment contract may be terminated before the expiration of the prevention of dismissal.
In cases where the statement of the employee on dismissal on his initiative (at wish) is due to the inability to continue their work (enrollment in the educational organization, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts, containing labor law norms, local regulations, conditions 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 statement.
Before the expiration of the warning about the dismissal, the employee has the right to withdraw his statement 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 this Code and other federal laws, cannot be denied the conclusion of an employment contract.
After the expiration of the warning about the dismissal, the employee has the right to stop work. On the last day of work, the employer is obliged to issue an employee a labor book, other documents related to the work, on the written statement of the employee and to make a final calculation with it.
If, after the expiration of the warning about the dismissal, the employment contract was not terminated and the employee does not insist on dismissal, the work of the employment contract continues.
Commentary on Article 80 TK RF
The procedure for termination of the employment contract on the initiative of the employee is defined by Article 80 of the Labor Code of the Russian Federation. This article provides an employee the right to the early termination of the employment contract at his own request, without putting this desire to dependence on the motives that the employee is guided in this case, they can be in principle any.
The early termination of the employment contract on the initiative of the employee is preceded, as already noted, a written warning about this employer, which should be directed last no later than 2 weeks before the expected date of dismissal of the employee. It is noteworthy that such a statement should be filed by an employee, regardless of whether it is "when executed" or, for example, on a hospital.
Accordingly, when submitting an application with access to work (for example, after vacation), the employee must proceed from the fact that in general the employment contract with it will be terminated on the 15th day after applying. After the expiration of the warning about the dismissal, the employee has the right to stop work.
However, it is also a respected readers to pay special attention - by agreement between the employee and the employer, the employment contract may be terminated and before the expiration of the warning period about the dismissal, i.e. earlier than 14 days later. For this, the employee should be specified in a written statement the desired date of dismissal.
For its part, the employer can satisfy this request of the employee, and may and refuse it in this. Nevertheless, in cases where the submission of a written statement on the early termination of the employment contract on the initiative of the employee is due to the impossibility of continuing to work on working, for example, in connection with the enrollment in an educational institution, retirement and other similar reasons, as well as in cases of established violation by the employer of laws and other regulatory acts containing the norms of labor law, the conditions of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract in the period specified by the employee in the application.
On the other hand, Article 80 of the Labor Code of the Russian Federation provides an employee right before the expiration of the warning of the dismissal at any time to withdraw the written statement submitted earlier. The emergence of a similar situation, which in practice, by the way, is by no means rare, therefore implies two options for its permission:
1. At the time of the recruitment by the employee of a written statement on the early termination of the employment contract for the position liberated by him (workplace), another worker was invited in writing.
In this case, the employer is not entitled to refuse the "thoughtful" employee in the continuation of work under the conditions provided for by "a little bit of a non-brave labor contract. Thus, if, after the expiration of the warning about the dismissal, the employment contract was not terminated and the employee does not insist more than dismissal, continuing to fulfill the work entrusted to him in accordance with the employment contract (labor function), then the employment contract continues until the occurrence of circumstances make it possible Termination on legal grounds.
2. At the time of the recall by the employee of a written statement on the early termination of the employment contract for the employer liberated by him (workplace), the employer was invited in writing, another worker who - emphasize this - in accordance with the Labor Code of the Russian Federation and other federal laws cannot be denied Conclusion of the employment contract. Let us explain this in the following example:
To the position of employee Lukina L.L., who submitted a written statement with a request for dismissal at his own request, a few days after that, an employee of Novikov NN was invited in writing. At the same time for Lukina L.L. The work performed by him was the main, and Novikov N.N. Invited to work as a partner.
Three days before the expiration of the warning term Lukin L.L. Same as an employer writing a written statement with a request to continue the work in the same quality. In this situation, the employer has the right:
b) Suggest Novikov N.N. Performance of work as the main and in the case of the consent of the latter, expressed in the form of a written statement, notify Lukina L.L. The worker is invited to his place in writing in writing, for whom this work will also be the main one. However, in case of refusal Novikova N.N. From fulfilling work as a basic to him, in turn, can be denied the provision of this work, since Lukin L.L. still ready to perform it precisely as the main (as it was provided for the employment contract with him);
c) in case of consent Novikova N.N. To perform the work previously spent Lukin L.L., as the main employer may (but not obliged) to offer Lukin L.L. Another work available at the enterprise and, with the consent of Lukina L.L., take it to the enterprise in a new capacity, having previously terminated with him a labor contract on the basis of Article 80 of the Labor Code of the Russian Federation, and then concluding a new employment contract with the employee.
On the dismissal of the employee on the basis of Article 80 of the Labor Code of the Russian Federation, the employer is published by an appropriate order. Based on the order of the dismissal of the employee, the issuance of other necessary documents is issued.
Another comment to Art. 80 Labor Code of the Russian Federation
1. Article 80 of the Labor Code of the Russian Federation regulates the procedure for termination at the initiative of the employee as an urgent employment contract before the expiration of its term and the contract concluded for an indefinite period. Previously, the legislation has established restrictions on the possibility of an employee ahead of time to stop the urgent employment contract (Art. 32 of KZOT), reasonably based on the fact that the term of the term is one of the many conditions that make up the content of the employment contract, which is due to the unifunted unilateral violation of this condition contradicts the universal The principle of contractual law - "contracts must be executed."
2. By virtue of Part 1 of Art. In the 80th Tk of the Russian Federation, the voltage of the employee on the termination of the employment contract must be expressed in writing. All other forms of such a voltage have no legal significance. The employee's initiative aimed at one-sided termination of the employment contract is usually expressed in the form of an appropriate written statement.
In practice, there are often cases when the employer detains the production of calculation with the employee and issuing a workbook to him, motivating this by the fact that the employee did not fill the so-called bypass leaflet, did not pass on material values, etc. This kind of practice is not provided for by the current legislation on labor, and therefore is illegal. Moreover, after the expiration of the warning about the dismissal, the employee is entitled to stop working, and the employer is obliged to give him on the day of dismissal (the last day of work) the workbook and on the written statement of the employee a copy of documents related to work, as well as to pay all the amounts due to it from the employer (see Art. Art. 62, 140 Tk of the Russian Federation and comment on them).
3. Termination of an employment contract on the initiative of the employee is possible at any time and without specifying grounds for dismissal. At the same time, without limiting the right of an employee to be easily abolished by his own request, the legislator binds the offensive of a different kind of legal consequences with the presence of certain reasons for such dismissal. So, in accordance with paragraph 1 of Art. 29 and art. 30 of the Law of the Russian Federation of April 19, 1991 N 1032-1 "On employment of the population in the Russian Federation" The causes of dismissal, the list of which is given in this law, affects the size of the scholarships paid to citizens during the training, retraining and advanced training in the direction of bodies Employment services, as well as unemployment benefits. The reasons for dismissal at their own request listed in paragraph 1 of Art. 29, confirmed by records in the employment record. Consequently, the reason for dismissal should be indicated not only in the statement of the employee, the order to terminate the employment contract, but also in the employment record.
4. The decision on the dismissal at his own willing should be an act of the free will of the employee, otherwise it is impossible to talk about the termination of the employment contract on his initiative. In this regard, the Supreme Court of the Russian Federation draws the attention of the courts to the need to proceed from the fact that the termination of the employment contract on the initiative of the employee is permissible in the case when the application for the dismissal was voluntary by its will. If the plaintiff claims that the employer forced him to apply on the dismissal at his own desire, then this circumstance is subject to verification and the obligation to prove it is assigned to the employee (sub. "A" P. 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 ). However, it cannot be considered as an employee's coercion to dismiss the employer's threat to terminate with him on its own initiative, provided that the employer had for this basis stipulated by law (see Art. 81 of the Labor Code of the Russian Federation and the comment on it).
5. If before the expiration of the warning of the termination of the employment contract, the employee refused to dismiss on his own desire, it is considered not submitted and cannot be dismissed under the foundation under consideration. An exception is the case when another employee is invited to the place of the dismissal worker in writing, who, for the law, cannot be denied the conclusion of an employment contract. The wording of Art. 80 TK RF is completely unequivocal: only those cases may be invited to the place of the employee who dismissed at their own request, and in writing, another worker, i.e. The person engaged in another employer, dismissed in the order of translation to this employer (see Art. 72, paragraph 5 of Art. 77 of the Labor Code of the Russian Federation and comment on them). Accordingly, all other guarantees established by the Law of the Conclusion of the Labor Treaty (see Art. 64 of the Labor Code of the Russian Federation and comment on it) on the situation provided for by the commented article do not apply. For example, it cannot be denied the annulment of a declaration of dismissal at your own request to the employee on the grounds that his position is supposed to be rendered by a woman in a state of pregnancy, which this work is promised.
When granting a vacation with the subsequent dismissal in the event of termination of the employment contract on the initiative of the employee, this worker has the right to withdraw his application for dismissal before the day of the beginning of the vacation, if another worker is invited in his place (see Art. 127 of the Labor Code of the Russian Federation and comment on her). In the event that during the period of staying on vacation, there was a temporary disability of the employee, as well as in the presence of other valid reasons, leave to be extended to the appropriate number of days (see Art. 124 of the Labor Code of the Russian Federation and comment on it), while the day of the vacation is considered . At the same time, if the employee insists on the termination of an employment contract with an initially defined date, its requirement is subject to satisfaction.
Since the law provides for the mandatory written form of submission of a declaration of dismissal at one's own request, it should be assumed that the will of the employee should be expressed in the same form to cancel the annulment of this statement.
6. In accordance with Part 6 of Art. 80 TC, if, after the expiration of the warning about the dismissal, the employment contract was not terminated and the employee does not insist on dismissal, then the contract continues. Thus, the fact of the expiration of the term of working as an employee excludes the possibility for the employer to terminate the employment contract for the foundation under consideration if "the employee does not insist on the dismissal." Last wording wide and uncertain. It should be assumed that the case falls under it when, after the expiration of the warning about the dismissal, the employee went to work and was allowed to be allowed (that is, continued the fulfillment of responsibilities for the employment contract). At the same time, Part 6 of Art. 80 should act and then when the employee expressed the desire to continue the work, was not allowed to be allowed, but the employer detained the issuance of the employment record, other documents required by the employee related to work, as well as the production of calculation with it.
Forms in which the employee can "insist on dismissal", are not defined by law. The most obvious is the cessation of work after the expiration of the prevention of dismissal; However, the voltage of the employee in other forms is not excluded when working. In the latter case, dismissal should be carried out in other terms agreed by the parties.
It should be borne in mind that the consideration of the employee's requirement has a legal significance only at the time of the expiration of the test. If the employment contract was not terminated after the expiration of the testing, the employee continued to work, and later demanded the termination of the employment contract with him with reference to Part 6 of Art. 80, such a requirement cannot be recognized as legitimate: the employment contract must be terminated according to the rules established by Art. 80, including the development of the established period of preventing dismissal.
7. The warning period by the employer employee about the upcoming dismissal is determined by the legislation on labor. In accordance with Art. 80 TC RF employee, terminating the employment contract, must warn about this employer in writing no later than two weeks. Consequently, the prevention of dismissal on his own will can be done and earlier than in two weeks. A temporary or seasonal employee must warn about this employer in three days (see Art. Art. 292, 296 of the Labor Code of the Russian Federation and comment on them). The same period is envisaged at the dismissal of the employee at his own request during the period of testing (see Art. 71 of the Labor Code of the Russian Federation and comment on it). The head of the Organization has the right to terminate the employment contract ahead of time, warning about this employer (owner) of the property of the organization no later than one month (see Art. 280 of the Labor Code of the Russian Federation and comment on it). The expiration begins the next day after the calendar date, which defines the application of the application (see Art. 14 of the Labor Code of the Russian Federation and comment on it).
The absence of an employee at work for valid reasons (for example, in connection with the coming temporary disability) is not a reason for extending the term of working out when dismissal at their own request. At the same time, the rejection of the employee from dismissal may be declared by the employee and during its absence at work for the specified reasons.
As a general rule, the reduction in the period of work is unilaterally not allowed. So, if the employee left a job, without spending the deadline established by law, then this fact is regarded as a program, which gives the basis to dismiss the employee at the initiative of the employer (sub. "A" 6 Art. 81 of the Labor Code of the Russian Federation). At the same time, judicial practice comes from the fact that an arbitrary, without coordination with the employee, reducing the term of working out or dismissal without working out, gives an employee to the basis of demanding recovery at work with the payment of the time of forced absenteeism.
From this rule, one exception is envisaged when the reduction in the term is due to respectful reasons, the list of which is given in part 3 of Art. 80 TC RF. These cases include the admission of an employee for military service under the contract (see paragraph 2 of the comments to Art. 83 of the Labor Code of the Russian Federation).
The fact of violation by the employer of laws and other regulatory legal acts containing the rules of labor law, the conditions of a collective agreement, an agreement or an employment contract, as a circumstance obliging the employer to terminate the employment contract in the period specified in the employee's statement, can be established, in particular, by the authorities State supervision and control over compliance with labor legislation, professional unions, labor dispute commissions, court (part 2 of the sub. "B" of paragraph 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).
In these cases, the employer is obliged to terminate the employment contract within which the employee asks.
In all other cases regarding the termination of the employment contract at the initiative of an employee without working out the statute of the period or a reduction in this period, the consent of the parties should be reached (sub. "B" of paragraph 22 of the specified decision of the Plenum of the Supreme Court of the Russian Federation). It can be expressed in the form of a written statement of the employee about the dismissal on his own request, indicating the conditions for dismissal without working out or with a shorter period of testing or a corresponding order of the employer comprising a signature of a dismissal employee. Strictly speaking, since the law (part 2 of Art. 80 of the Labor Code of the Russian Federation) does not provide for the form of an agreement of the employee and the employer regarding the term of working out when dismissal at their own request, such an agreement can be achieved in oral form. However, the difficulties of proving the presence of this Agreement should be taken into account.
8. It should be proceed from the fact that under the general rule, if there is another reason to terminate the employment contract, for example, the change of the owner of the organization (see Art. 75 of the Labor Code of the Russian Federation and the comment on it), go to work towards another employer or an elected position ( See paragraph 5 of Art. 77 of the Labor Code of the Russian Federation and the comment on it), the refusal of the employee from the continuation of work in connection with the change in the significant conditions of the employment contract (see Art. 74 of the Labor Code of the Russian Federation and comment on it), refusal to transfer another work in According to the medical conclusion, the rejection of translation in connection with the movement of the employer to another locality (see Art. 72.1 of the Labor Code of the Russian Federation and the comment on it) - the priority should be given to a pronounced employee will be the will of the dismissal on his own request.
In addition, according to the employee's statement, the dismissal of which is recognized illegal, the court may limit oneself to the decision on the recovery of the average earnings during the forced absenteeism and the change in the formulation of the foundation of the dismissal of dismissal at his own request (see. 3, 4 . 394 TK RF and comment on them). The submission of a written statement on the dismissal for his own will cannot be considered a circumstance that excludes the possibility of termination of an employment contract with him on the initiative of the employer - if there are grounds established by the law.
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