Leaving work on one's own is the most common reason for dismissal. There are two interesting points here:
- Very often there are situations when an employee is simply forced to write a statement of his own free will, so as not to have any legal proceedings in the future.
- Cases of “wrong dismissal” are common.
We will analyze the first item in more detail later. As for the second, the main reason lies in the incorrect application of certain norms of the Labor Code.
"Correct" article
Despite the basic basic principles of regulatory legal acts, namely, “absolute clarity in the wording,” very often misunderstanding arises. Under what article to make dismissal? P. 3 Art. 77 or Art. 80 of the Labor Code of the Russian Federation?
But in fact, there is no problem understanding. One is considered procedural (how to legally change work), and paragraph 3 of Art. 77 of the Labor Code of the Russian Federation - regulatory, i.e. indicates the fact itself.
Almost everyone knows that you need to work out 2 weeks before leaving the organization. Immediately explain one very important nuance.
Dismissal (paragraph 3 of article 77 of the Labor Code of the Russian Federation) does not provide for any work-offs.
It is only necessary to warn the employer no later than this period. Of course, during this period it will be necessary to fulfill its functions in the enterprise. Hence the erroneous opinion. But let’s explain that the obligatory work of half a month is optional.
You can go on sick leave or leave, warning about the future dismissal of the employer. In this case, there can be no development.
Clause 3, Article 77 of the Labor Code of the Russian Federation: entry in the work book
The most common mistake is an incorrect entry. Very often, clerks incorrectly indicate an article in the work book. After that, many former employees face a problem during a new job placement or when applying for a pension. Clerks put a mark “dismissed on the basis of Art. 80 of the Labor Code of the Russian Federation. ”
But the law does not provide for the termination of duties on the basis of this article. It is important to see an order to terminate the contract. If it is based on the same article, then the employee is not legally dismissed, because legal procedure not followed.
Hence the problem for the former employee: they may not be taken to a new position. Be sure to contact the former organization for correction. The document should have a record: paragraph 3 of Part 1 of Art. 77 of the Labor Code of the Russian Federation (termination of the employment contract at the initiative of the employee).
But let's move on to another common mistake.
P. 3 Art. 77 of the Labor Code of the Russian Federation: entry into the labor. Writing pattern
Often, clerks and directors face a similar problem. The article seems to be indicated exactly, but the record is still invalid. The fact is that the wording is as follows: “P. 3 tbsp. 77, voluntary dismissal. ”
But according to the filling rules, the record must fully comply with the norms of the Labor Code of the Russian Federation.
Consequently, the writing sample will look like this: “Dismissed under paragraph 3 of Art. 77 of the Labor Code of the Russian Federation - termination of the employment contract at the initiative of the employee. "
The record is fundamentally modified, despite the fact that the main reason remains the same.
Consent of the parties: what is the difference?
There are situations when an employee is forced to write a letter of resignation of his own free will. The reasons, of course, are purely individual. The new director selects staff, the employee ceases to arrange, reorganization, often forced pregnant women to do this, etc. The labor code contains two paragraphs of article 77, which to ordinary citizens seem equivalent:
- By agreement.
- Of my own free will.
Many professional lawyers involved in labor disputes know that termination of the contract in the second case can be challenged in court. It is enough to give arguments and prove that the employee was subjected to psychological influence from the administration of the enterprise. Consequently, in court, the termination order will be canceled, and the employee reinstated with all rights.
A.1 Art. 77 of the Labor Code of the Russian Federation does not provide such a loophole. It just follows from the fact that the employee and the employer have any conflicts and disagreements.
As a rule, any “compensation” funds are paid to the former employee in order to peacefully and without consequences for both parties to terminate the employment relationship. In court, all arguments will be useless. Recovering in labor rights is almost impossible.
How to quit
To do this, you must warn the employer for 2 weeks. If the relationship is trusting, then this can be done orally. But in the event of a conflict, proving this later in court will be difficult. Therefore, in order to avoid misunderstanding, you should write statements.
Writing pattern
Special requirements and special legal education does not require. You can write the following in the name of the head: “In accordance with Art. 80 of the Labor Code of the Russian Federation, please dismiss me from my position. ”
Below is a number, a signature. From the day the head or other authorized official receives this application, a two-week period will begin.
Everyone should know this.
It is important to know two very important things:
- Normative acts are not necessary to indicate when writing such a statement.
- No one has the right to prohibit quitting voluntarily.
Do not sign the statement. What to do?
The practice is quite common when a person wants to change his company for one reason or another, and they start putting sticks in the wheels: “there is no director in place,” “come on, I will sign it later,” etc. And after some time they refuse with the wording “no one to work”, “I do not give consent to your dismissal”. Some are so dishonorable that you can hear the answer “I have not seen your statement” and so on.
To avoid these or other problems, it is enough to do one of two scenarios:
- Write a written application and register it with the secretary or other authorized person.
- Send registered mail.
The first option will be faster, because a two-week period will begin the day after registration. The employer will not be able to declare then that "he did not see and did not know." It is the duty of the secretary or other authorized person to notify the authorities as soon as possible.
With the option of sending via the Russian Post service, everything will be a little longer. The two-week period will start from the next day when the employer received the letter, and not from the moment of sending. When the application has reached the addressee, it will be indicated in the notification, which means that the employee will know the exact date of receipt.
After that, the director will have to release the employee. Clause 3, Article 77 of the Labor Code of the Russian Federation obliges this to be done.
If you change your mind - what to do?
Such cases are also not uncommon. The reasons are different: they did not agree on a new job, the director realized that the employee really wants to leave, and improved working conditions and much more.
To cancel an application that has already been submitted, you must write and also officially register a new one according to all the rules. No matter how good, as it seemed to the employee, the relations between him and employers would be, it is important to know the main rule: a letter of resignation must be submitted officially, i.e. in writing via secretary or mail.
What is it for?
There are frequent cases when the employer is not against such dismissal. But he had no reason to do it himself. And then the employee himself brings such a letter of resignation under paragraph 3 of Art. 77 of the Labor Code of the Russian Federation.
Then, after some time, the employee claims to have changed his mind. The director, knowing the legislation, happily says on his face that "I understand everything, work on."
Upon the expiration of a two-week period from the moment of writing the application, a dismissal order is issued in accordance with Clause 3 of Article 77 of the Labor Code of the Russian Federation - at will.
Going to court is useless. Legally, the director did everything right. Here one of the principles of law worked: “Most moral principles become legal norms, but not all.”
If you refuse the application of your own free will, there is one very important nuance. If a letter of invitation was sent to another person from the moment of the employee’s dismissal until his refusal, he will no longer be able to cancel it.
Here the law will be on the side of the future employee, i.e. someone who has already been invited. Because now no one has the right to refuse him employment.
Therefore, it is necessary to weigh everything well before writing a letter of resignation. There are times when there is no longer a motorway.
Where to assert labor rights
If your rights were violated during the dismissal procedure or in any other case arising during the employment relationship, then you must defend them in one of the following ways:
- Appeal to the Inspectorate for the Protection of Labor Rights.
- The statement of claim in court.
- Appeal to the prosecutor.
A citizen of the Russian Federation whose rights are violated may apply simultaneously to all competent authorities. Administrative punishment is provided for the guilty person. But the citizen himself does not have the right to initiate such a case through a court. This can only be done by the prosecutor's office or the labor inspectorate. To do this, you must send a complaint to these structures.
At the same time, the employee has the right to file a lawsuit in order to receive compensation for non-pecuniary damage or any other payment from the employer, if this is prescribed by law, because administrative sanctions do not provide for this. All fines issued by the prosecutor’s office will go to the state’s benefit. Therefore, it is better to contact the regulatory authorities in order to bring the violator to justice and to court for moral or other other payments.
Exemption Cases
The Labor Code has reasons that allow an employee to leave earlier than the deadline of 14 calendar days. We will say right away that the report starts the day after the notification is submitted.
These include:
- Employee training.
- Mutual agreement.
- Violation of labor rights.
- Other
The first two are more or less clear. As for the violation of labor rights, this does not mean the subjective opinion of the employee. This refers to the official prosecution of the employer. And it must necessarily relate to the employee who decided to leave earlier than it should.
When will the calculation be?
After an official order, all payments for the hours worked must be made on the day of dismissal. And this is not a "gift" from the company, it is an obligation according to the Labor Code. Violation of this norm is an occasion to assert your rights and apply to regulatory authorities. In addition to the salary, the employee is entitled to payment for unused vacation. You can calculate it yourself if you know the average monthly income and the exact number of days worked. Payments must also be made on the day of the dismissal order.
The only exception to this rule is sick pay. From the moment a medical certificate is submitted, the accounting department recalculates and pays it on the day of salary at the enterprises within 10 days.
If the employee on the day of calculation is not in place (business trip, vacation, sick leave), then all payments must be made no later than one day after his appeal.