An employer may dismiss an employee only in cases specified by law. But for the work of art. 80 of the Labor Code of the Russian Federation permits dismissal of their own free will at any time, even despite the terms of the contract. Let us consider in more detail what is the procedure for dismissal at the initiative of an employee, as well as all the nuances stipulated by law.
The concept of an employment contract
An employment contract is a written agreement between the manager and subordinate, establishing their mutual obligations, as well as rights. In accordance with the agreement, the employee must perform certain work that is commensurate with his qualifications, and the employer must provide this work, as well as provide conditions and labor remuneration.
In the Russian Federation, a labor agreement obliges an employee to assume responsibility for the performance of work and to comply with the internal routine of the company. This factor is decisive in the preparation of the contract and distinguishes it from other agreements of a civil law nature.
Legal grounds
Dismissal at will on legal grounds provides for Art. 80 of the Labor Code of the Russian Federation. The current reaction of the employer may be ambiguous, but nevertheless, this reason is the most common among others, even in the case when the dismissal does not occur because of the desire of the employee.
Unlike the previously stated requirements, modern legislation does not require any special grounds for the employee to terminate the agreement. Now this can be for almost any reason.
The most common reasons why an employee can leave the workplace include:
- retirement;
- admission to any educational institution;
- violation of the Labor Code of the Russian Federation by the employer;
- changing of the living place;
- inability to continue work due to poor health;
- lack of any perspective;
- the presence of a new job, etc.
Art. 80 of the Labor Code of the Russian Federation does not prohibit employees to early terminate the agreement for any reason, regardless of whether a fixed-term contract or a permanent one.
The employee has the right to draw up a letter of resignation when it is convenient for him, even while on sick leave or on vacation. Indication of the reason is a purely personal matter of each citizen, it can be indicated, or you can be silent about it. But if there is a desire to quit as soon as possible, the reason still needs to be identified. Otherwise, you will have to work out on a common basis.
Writing a statement and terminating the agreement is the employee’s legal right, which the employer has no right to neglect. The application is of a notification nature, not permissive. In other words, the employee tells the manager that he is quitting, and does not ask permission. Therefore, the head cannot refuse to accept the application, as the Labor Code says. Art. 80 of the Labor Code of the Russian Federation, in turn, states that the document must be submitted in writing and in advance, otherwise the employee will violate the law.
Conditions
The most important condition for terminating the agreement is an early warning of this to the employer. In this case, the following conditions must be met:
- an application is submitted only in writing;
- adherence to established deadlines for warning.
For general cases, the period should be at least two weeks, although it can be warned earlier. Why you need to warn in advance:
- To enable the employer to find a new employee.
- To give time to a person to think and, possibly, change his mind, making up a review on dismissal. In this case, the subordinate may, up to the dismissal, withdraw the application and continue to work in the organization. An exception is the situation when a new employee has already been invited to the position and it is not possible to refuse him due to the requirements of the law.
According to Art. 80 of the Labor Code of the Russian Federation, a two-week period for notification of dismissal may be changed for certain categories of employees.
The term may be:
- Three days if the nature of the work is seasonal or the employee is on probation. By the way, the same applies to the labor agreement concluded for two months.
- The month if an employee in a managerial position quits.
Special conditions for dismissal are defined for those categories of citizens who work with an individual entrepreneur or in a religious organization. Here, the notification periods are not defined by law, but are prescribed individually when concluding an employment agreement with an employee. Under certain circumstances, which are prescribed in the Labor Code of the Russian Federation, the notice period can be shortened, and the employee himself determines the time for writing the application, indicating the reason for leaving.
Art. 80 of the Labor Code of the Russian Federation with comments allows termination of the employment contract earlier than the established time, if both parties have come to this decision on a voluntary basis.
The employer has no right to dismiss the employee ahead of time, while the employee cannot violate labor discipline and leave the workplace earlier than indicated in the application. In this case, he can be fired under another article.
Employer Notice
As mentioned above, the dismissal is preceded by the writing of a statement, in accordance with Art. 80 of the Labor Code of the Russian Federation. The reaction of the leader can be mixed, therefore, the statement must be drawn up and filed according to the rules of the law.
There is no established form for writing a statement, but it always starts with the words "I ask you to fire me ...". The reason can be indicated or not. But if you want not to work out for two weeks, it is better to indicate it. The date in the application is set if the wording of the dismissal within two weeks is not indicated.
A letter of resignation can be sent in person or sent by mail. In the first case, it is better to make a copy of the document and certify it with a note from an authorized person. In the second case - send by registered letter with an inventory. Such measures, according to Art. 80 of the Labor Code of the Russian Federation will help the employee to avoid unpleasant situations in the future if, for example, the manager refuses to dismiss him due to the fact that no application has been written.
Preparation of documents
After the application is written and submitted to the personnel department, the remaining documents should be prepared, taking into account the provisions of the Labor Code of the Russian Federation and in particular Art. 80 of the Labor Code of the Russian Federation. Dismissal of their own free will involves the preparation of such documents as:
- dismissal order;
- employment form with a corresponding note of resignation;
- certificate of insurance premiums;
- certificate of salary;
- certificate of working hours in this company.
The order of dismissal must be executed in the personnel department according to the established model (Resolution of the State Statistics Committee No. 1 of 05.01.04). The order must contain a link to the article of dismissal, namely, paragraph 3 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, and information has been entered from the statement of the employee. This document must contain the signature of the resigning and authorized person.
Further, it is necessary to do, according to Art. 80 of the Labor Code of the Russian Federation, an entry in the form of the labor book. All information from the order already signed by the employee is taken into account here.
Employment record
Information about the dismissal is entered in the work book on the last day of the employee’s stay at work.
Given the provisions of Article 80 of the Labor Code of the Russian Federation, an entry in the labor should be made in accordance with the Decree of the Ministry of Labor No. 69 dated 10.10.03 and the Instructions for the maintenance of forms.
The first column is followed by the previous record number, in the second - the date of dismissal, which must correspond to the date of termination of the agreement, in the third column, based on Art. 80 h. 3 of the Labor Code of the Russian Federation, the reason for the dismissal and information about the authorized person is indicated, the fourth column should contain information about the document, based on which the employee was dismissed.
After the employee has received his labor, he must sign in the register of forms of labor. This is a guarantee of the company that in future the citizen will not make any claims.
Payment
According to Art. 80 p. 3 of the Labor Code of the Russian Federation, the termination of work on the initiative of an employee is possible at any time and without indicating reasons. Accordingly, the employee must be calculated on a common basis. Upon termination of activity, the employee is entitled to all the payments that he deserves at the place of work. This includes:
- salary for the entire period before dismissal;
- compensation for unused vacation;
- other payments stipulated by the labor agreement.
If during the work vacation was used in advance, the accounting department must recalculate the issued amount, in other words, withhold money from the salary. Settlement, like the work book, are issued on the last day the employee is at the workplace. In some cases, all payments and compensations may be issued the day after dismissal, but not later.
Do I need to practice
Firing at dismissal is a rather sensitive issue. Everything will depend on the specific situation. In most cases, the employee fulfills two weeks when the employer needs to find a new person for the position. But even in this case, mining is not a strict criterion. First, both parties can reach a common consensus and terminate the employment relationship on the day the application is submitted. Secondly, if an employee has already found a new job, and he is forced to work, he can simply go on sick leave or take a vacation. This time will be counted as working off, and after leaving the employee can pick up all the documents and payments.
So, given the provisions of Article 80 h. 3 of the Labor Code of the Russian Federation, a citizen is not obliged to work for two weeks, although the same article establishes the right for the employer to require the employee to work out. How to get around mining? Relying on the same legislation, in the application for dismissal, you can indicate the reason for the dismissal (new job, enrollment in an educational institution, conscription, retirement, illness, etc.).
Another reason to quit at will without working out may be a violation by the head of labor law of the requirements of regulatory acts and local documents in force in the company. This allows the employee to quit within a few days or even on the day the application is submitted.
The employee changed his mind
Given the provisions of h. 4 Article. 80 of the Labor Code of the Russian Federation, the dismissal is the initiative of the employee, if the employer does not take any measures for this, then he eats, does not force him to quit. And just as a subordinate has the right to quit at any time, he may want to and remain in his place. The employer has no right to prevent this fact.
You can withdraw the letter of resignation both during working hours and on the last day. The manager can refuse an employee only if a person has already been officially invited to his place. In other cases, there are no obstacles for the employee to remain.
To withdraw a letter of resignation, you need to write another statement refuting the first. Or in the personnel department make an appropriate mark on the document.
If an employee goes on vacation with subsequent departure from work, then he can change his decision only if he has not yet begun official leave.
The employer does not let go
What to do if a letter of resignation is already written at will, waiting for a new job, and the boss does not want to dismiss? Are his actions legitimate?
The first thing to do is to fix the moment of delivery of the application. To do this, it is written in several copies, one of which remains with the personnel officer, and on the second an authorized person must put in a visa stating that the document was accepted, who accepted it and when. If the employee refuses to register the application, you should send it by registered letter with a list to the address of the organization. In this case, if the employer refuses to dismiss, the employee will have two documents in his hands: a receipt for the payment of the letter and a notification of receipt. But here, testing will begin from the moment the organization receives the letter.
If on the last day the authorized person does not issue the work book and settlement funds, the employee has the right to apply to the labor inspectorate or to the court. In the first case, an application is written to the authority, which is considered within a month. After this time, the labor inspectorate must issue an order eliminating the violation. In most cases, an employee should only threaten to contact the inspection so that all issues are resolved immediately. No employer will contact these bodies. In the second case, the application can be submitted on the basis that the employee is deprived of the opportunity to start a new job, and also request compensation for the delay in documents.