Labor Code, N 197-FZ | Art. 80 of the Labor Code of the Russian Federation

Article 80 of the Labor Code of the Russian Federation. Termination employment contract at the initiative of the employee own will) (current edition)

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 this Code 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 educational organization, retirement and other cases), as well as in cases of established violation by the employer labor law and other regulatory legal acts containing labor law norms, local regulations, conditions 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 in his place in writing, who, in accordance with this Code and other federal laws cannot refuse to conclude an employment contract.

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 issue a work book to the employee or provide information about labor activity(Article 66.1 of this Code) from this employer, issue other documents related to the 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 termination notice and the employee does not insist on dismissal, then the employment contract continues.

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Commentary on Art. 80 of the Labor Code of the Russian Federation

1. Article 80 establishes the general (uniform) procedure and conditions for terminating, on the initiative of the employee, both a fixed-term employment contract and an employment contract concluded for an indefinite period. Thus, the possibility of terminating an employment contract before its expiration at the initiative of the employee is not related to the fact that he has good reasons. The employee has the right to terminate at his own request any employment contract at any time. 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 organization's property or his representative) in writing about the early termination of the employment contract no later than one month in advance (see comments to Article 280). An employee who has entered into an employment contract for a period of up to two months, as well as an employee employed on seasonal work, are obliged to notify the employer in writing of the early termination of the employment contract three calendar days in advance (see comments to Articles 292, 296).

2. The written form of the application for dismissal is obligatory. An oral statement by an employee about the termination of an employment contract cannot be the basis for the employer to issue an appropriate dismissal order. The obligation of the employee stipulated by the Labor Code to notify the employer of the termination of the employment contract of his own free will no later than two weeks (the head of the organization - one month) means that he can do this for a longer period. Two weeks (month) is the minimum period for which the employee is obliged to notify the employer of the desire to terminate the employment relationship. The notice period begins the 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 comments to Article 84.1).

3. In accordance with part 2 of the commented article, by agreement between the employee and the employer, the employment contract may be terminated even before the expiration of the established notice period. At the same time, it should be borne in mind that 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 dismissal has legal significance and without such consent the employment contract cannot be terminated (see comments to Article 78). In the case when 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 termination of the employment contract itself has no legal significance. It matters only for determining the specific date of dismissal, because. the employee asks to be dismissed before the expiration of the period established for the notice of dismissal at his own request. If the parties have agreed to terminate the employment contract before the expiration of the established warning period, the employment contract is terminated on the basis of paragraph 3 of Art. 77 Labor Code on the day determined by the parties.

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 a specific date. A verbal agreement between the parties cannot be evidence of such an agreement. This is also evidenced by arbitrage practice. Thus, the Supreme Court of the Republic of Buryatia rightfully declared unfounded the decision of the Railway Court, which refused c. L. in reinstatement, pointing 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 notice of dismissal. Therefore, on the basis of this statement, it cannot be concluded that there was a bilateral agreement on termination of the employment contract before the expiration of the notice of dismissal (Review of the cassation practice in civil cases of the Supreme Court of the Republic of Buryatia for 12 months 2006 of 10/19/2007).

If the employer has not agreed to terminate the employment contract before the expiration of the warning period, the employee is obliged to work set time. Early termination of work in this case is a violation 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 before the expiration of two weeks after the filing of an application for termination of the employment contract, if the application does not indicate the date of dismissal, or before the expiration of the period specified in the application. During the entire period of notice, the employee retains his workplace(position).

4. If the employee's application for dismissal of his own free will is due to the impossibility of continuing his work (enrollment in educational institution, retirement, sending a husband (wife) to work abroad, to a new place of service, and other cases), the employer is obliged to terminate the employment contract within the period specified in the employee's application.

The same obligation arises for the employer also in cases of established 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 (clause 22 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

Judicial practice under article 80 of the Labor Code of the Russian Federation:

• Decision of the Supreme Court: Definition N 20-KG17-7, Judicial Collegium for Civil Cases, cassation

  Part 4 of Article 80 of the Labor Code Russian Federation it is stipulated that before the expiration of the term of the notice of dismissal, the employee has the right to withdraw his application at any time ...

• Decision of the Supreme Court: Determination N 78-KG14-12, Judicial Collegium for Civil Cases, cassation

  Meanwhile, the Judicial Board finds the plaintiff's arguments erroneous, based on the incorrect application of substantive law, and the court's conclusions are relevant to the circumstances of the case and the provisions of paragraph 3 of the first part of Article 77, Article 80 of the Labor Code of the Russian Federation. According to paragraph 3 of part one of Article 77 of the Labor Code of the Russian Federation, the basis for terminating an employment contract is the termination of an employment contract at the initiative of an employee ...

• Decision of the Supreme Court: Determination N 5-KG13-155, Judicial Collegium for Civil Cases, cassation

  Termination of an employment contract at one's own will (Article 80 of the Labor Code of the Russian Federation) is the realization of the right guaranteed to the employee to free choice of labor and does not depend on the will of the employer ...

An employment contract is a document that describes the working relationship between a manager and a subordinate, and it specifies the rights as well as obligations of the parties. is between the two parties by mutual agreement.

You can terminate the contract. These actions will depend on the reasons and the content of the document itself. What is the procedure for terminating the employment contract at the initiative of the employee will be discussed in this article.

Dear readers! Our articles talk about typical solutions legal issues but each case is unique.

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Legislative regulation

Grounds for termination

An employment contract is terminated in the same way as another legal action is performed, i.e. needed to stop it specific reasons. Given the law, the grounds for termination of an employment contract by an employee are the following circumstances:

1. Existence of valid reasons for dismissal. These include health issues, moving, family reasons for leaving, etc.
2. If the internal documents have been changed and the new work rules do not suit the employee, then he has the right to terminate the agreement by.
3. If the employer violated the rules contained in internal documents enterprises.
4. If the employee found or was offered a new job with more favorable working conditions.
5. If the employer and the subordinate drew up a work act and the term of this agreement has expired.

Do I need to write a notice?

If the document is torn at the request of the subordinate, then he needs to in writing notify the supervisor.

In any case, the manager must not interfere with the desire of the employee.

The employee must draw up a document within a certain time frame and it must contain the following information:

• The name of the enterprise, as well as the data of the head.
• You must specify personal data, as well as the position occupied by the employee. The document must express a desire to terminate the working relationship.
• If serious reasons are present, they must be identified.
• If there is a desire, then the employee can indicate a link to the desired article of the Labor Code of the Russian Federation.
• The document must be numbered and signed.

You can download a sample notice of termination of the contract.

Instead of a notice, you can write a letter of resignation of your own free will addressed to the director. It needs to be written For two weeks until the termination of the employment contract.

The procedure for dismissal at the initiative of the employee

Completion labor relations between a leader and a subordinate must be carried out in the proper manner, in accordance with the law. This is necessary so that the person is not called to account for the illegality of actions.

The whole process will depend on who the initiative comes from. The subordinate has the right to draw up a letter of resignation and give it to the employer. The reasons for dismissal mentioned in the application must be in accordance with the law.

When the application is completed in full, it must be submitted directly to the head of the enterprise, or to an employee of the personnel department. After the application is given, during this period of time both parties other duties and rights.

Within two weeks, the resigning person is obliged to go to work and continue to perform their job duties.

At the same time, for the entire given period of time, the employee the same salary That and up until the moment he filed his resignation. When the working period ends, the employee must issue other documents.

What should an employee do if he changes his mind about leaving?

Life often makes its own adjustments to people's plans and it happens that employee changed his mind about leaving.

If two weeks have not yet elapsed from the date of application, the employee has the right to withdraw his application.

At the same time, the manager must meet the employee halfway and has no right to interfere with him. The employee will not be able to stay at the workplace if the employer found a replacement within two weeks. Only here there is a condition - an employment contract must be concluded with a new employee.

In addition, certain citizens are allowed to change their mind about resigning even after two weeks. This applies, for example, to officers of the armed forces. If an officer has drawn up a letter of resignation and retires, then he has the opportunity reinstate his position within three months.

A lawyer will tell us about the nuances of terminating an employment contract at the initiative of an employee:

Labor Code of the Russian Federation:

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

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 this Code 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 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 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 unless another employee is invited in his place in writing, who, in accordance with this Code and other federal laws, cannot be refused to conclude an employment contract.

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 issue a work book to the employee or provide information about labor activity (of this Code) with this employer, issue 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 termination notice and the employee does not insist on dismissal, then the employment contract continues.

Return to document table of contents: Labor Code of the Russian Federation in the current edition

Comments on Article 80 of the Labor Code of the Russian Federation, judicial practice of application

Article 80 of the Labor Code of the Russian Federation establishes a general (uniform) procedure and conditions for terminating, on the initiative of an employee, both a fixed-term employment contract and an employment contract concluded for an indefinite period. The right of the employee to terminate the employment contract before its expiration on his own initiative is not connected with the presence of valid reasons. The employee has the right to terminate at his own request any employment contract at any time. He is only obliged to notify the employer in writing no later than For two weeks.

Other deadlines for warning the employer of dismissal

The employee has the right to terminate the employment contract by notifying the employer in writing no later than two weeks in advance. The following norms of the Labor Code of the Russian Federation establish other terms for the notice of dismissal:

• . The result of the test for employment. If during the trial period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, notifying the employer in writing about this. three days.
• . Early termination of the employment contract at the initiative of the head of the organization. The head of the organization has the right to terminate the employment contract ahead of schedule by notifying the employer (owner of the organization's property, his representative) in writing no later than one month.
• . Termination of the employment contract. An employee who has concluded an employment contract for a period of up to two months is obliged to notify the employer in writing of three calendar days on early termination of the employment contract.
• . Termination of an employment contract with employees engaged in seasonal work. An employee engaged in seasonal work is obliged to notify the employer in writing about the early termination of the employment contract for three calendar days.
• . Termination of an employment contract (with an employee working for an employer - individual) . The terms of the notice of dismissal, as well as the cases and amounts of severance pay and other payable upon termination of the employment contract compensation payments determined employment contract.
• . Features of termination of an employment contract with an athlete, with a coach. An athlete, a coach have the right to terminate the employment contract on their own initiative (at their own request), notifying the employer in writing no later than one month, except in cases where the employment contract is concluded for a period of less than four months.

Written notice of resignation is required. An oral statement by an employee about the termination of an employment contract cannot be the basis for the employer to issue an appropriate dismissal order.

By agreement between the employee and the employer, the employment contract may be terminated even before the expiration of the established notice period. At the same time, it should be borne in mind that 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 part 1 of Art. 77 of the Labor Code of the Russian Federation.

Clarifications of the Supreme Court of the Russian Federation

Clause 22 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" contains the following explanations:

Termination of the employment contract at the initiative of the employee

When considering disputes on termination at the initiative of an employee of an employment contract concluded for an indefinite period, as well as a fixed-term employment contract (paragraph 3 of the first part of Article 77, Article 80 of the Labor Code of the Russian Federation), the courts must 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.
• c) based on the content of part four of article 80 and part four of article 127 of the Labor Code of the Russian Federation, an employee who warned the employer about termination of the employment contract has the right to withdraw his application before the expiration of the warning period (and if leave is granted with subsequent dismissal - before the day the leave begins) to withdraw his application, and dismissal in this case, it is not carried out, provided that another employee is not invited in writing to take his place ... (for more details, see clause 22 of the Resolution).

Positions of the Constitutional Court of the Russian Federation

Part 1 Art. 80 of the Labor Code of the Russian Federation on the possibility of an employee to quit at any time does not contradict the Constitution

Having provided in part one of Article 80 of the Labor Code of the Russian Federation the opportunity for an employee to freely quit at any time on his own initiative and at the same time establishing the only requirement - to notify the employer about this no later than two weeks in advance, the federal legislator created a legal mechanism that ensures the realization of the right of citizens to free management of one's ability to work. In addition, in order to maximize the interests of employees, part four of the same article gives the employee the right to withdraw his application before the expiration of the notice of dismissal (unless another employee is invited in writing to take his place, who cannot be refused to conclude an employment contract).

At the same time, the Supreme Court of the Russian Federation in Resolution of the Plenum dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" indicates the need for the courts to check, when considering disputes on termination of an employment contract at the initiative of an employee, the assertion that there is no voluntary expression of the employee's will to dismiss (subparagraph "a" of paragraph 22).

Thus, the indicated legal regulation aimed at protecting labor rights employees and cannot be considered as violating the constitutional rights of the applicant (determination of the Constitutional Court of the Russian Federation of November 20, 2014 N 2577-O)

Part 3 Art. 80 of the Labor Code of the Russian Federation on the possibility of an employee to quit at any time in case of violation of the law by the employer does not contradict the Constitution

Part three of Article 80 of the Labor Code of the Russian Federation provides the employee with the opportunity to terminate the employment relationship at the time chosen by him in the event that the employer violates the requirements of labor legislation, regulations and other regulatory legal acts containing labor law norms, local regulations, the terms of the collective agreement, agreement or employment contract; this norm is of a guarantee nature and in itself cannot be regarded as violating any constitutional rights of citizens (determination of the Constitutional Court of the Russian Federation of June 23, 2015 N 1242-O)

Part 3 Art. 80 of the Labor Code of the Russian Federation on the possibility of an employee to quit at any time in the event of retirement does not contradict the Constitution

The Labor Code of the Russian Federation provides for the right of an employee to terminate an employment contract with an employer by notifying him of this in advance in writing. At the same time, as the Constitutional Court of the Russian Federation noted earlier, the requirement addressed to the employee to warn the employer about his dismissal, according to general rule, no later than two weeks in advance (part one of Article 80 of the Labor Code of the Russian Federation) is due to the need to provide the employer with the opportunity to timely select a new employee for the vacant position, and the right of the employee, enshrined in part four of the same article, to withdraw his application before the expiration of the dismissal notice (if his place is not invited in writing by another employee who cannot be refused to conclude an employment contract) is aimed at protecting the labor rights of the employee (determinations of January 25, 2007 N 131-О-О and of March 22, 2011 N 297-О- ABOUT).

As an exception to the general rule on the need to work for two weeks from the date of filing a letter of resignation of one's own free will, part three of Article 80 of the Labor Code of the Russian Federation obliges the employer to terminate the employment contract within the period specified in the employee's application, if the dismissal is due to the impossibility of continuing work ( enrollment in an educational organization, retirement and other cases).

Thus, the challenged legal provision, allowing to determine the date of dismissal in the application for dismissal of one's own free will, acts as an additional guarantee for persons wishing to leave work due to retirement, is aimed at maximum consideration of their interests in a situation where it is impossible for them to continue working, and does not violate the constitutional rights of the applicant (determination of the Constitutional Court of the Russian Federation of 03.07.2014 N 1487-O)

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 performed by the employee. labor function, neither from legal status 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 of his own free will no later than two weeks (the head of the organization - one month) 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 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 the application of L. there is no resolution of the employer 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 general rule, 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, being on vacation, on a 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 at his own request 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 N 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 lies 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

Leaving work "on your own" is the most common reason for dismissal. There are two interesting points here:

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

The first point will be discussed 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 legal acts, namely, “absolute clarity in the wording”, misunderstandings often occur. Under what article is the dismissal to be made? P. 3 Art. 77 or art. 80 of the Labor Code of the Russian Federation?

But actually there is no problem in understanding. One is considered procedural (how to legally change jobs), and clause 3 of Art. 77 of the Labor Code of the Russian Federation - regulatory, i.e. points to the fact.

Almost everyone knows that you need to work 2 weeks before leaving the organization. We will immediately explain one very important nuance.

Dismissal (clause 3, article 77 of the Labor Code of the Russian Federation) does not provide for any working off.

It is only necessary to notify the employer no later than this period. Of course, during this period you will have to perform your functions at the enterprise. Hence the misconception. But let us explain that compulsory work half a month is optional.

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

P.3 Art. 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 work book. After that, many former employees face a problem during a new employment 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 legislation does not provide for the termination of obligations on the basis of this article. It is important to see the order to terminate the contract. If it is based on the same article, then the employee is not legally fired, because. legal procedure was not followed.

Hence the problem for the former employee: he may not be hired for a new position. It is imperative to contact the former organization for correction. The document must contain an entry: clause 3, part 1, 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 in the labor. Sample spelling

Often clerks and directors face a similar problem. The article seems to be accurate, but the record is still invalid. The fact is that the wording is as follows: “P. 3 art. 77, voluntary dismissal.

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

Therefore, a sample spelling 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 changes radically, even though the underlying cause remains the same.

Consent of the Parties: What's the Difference?

There are situations when an employee is forced to write at his own request. The reasons are, of course, purely individual. New director selects personnel, the employee ceased to arrange, reorganization, pregnant women are often forced to do this, etc. There are two paragraphs of article 77 in the labor code, which seem to ordinary citizens to be equivalent:

• By agreement.
• By my own will.

Many professional lawyers dealing with labor disputes know that the 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 by the administration of the enterprise. Consequently, in court, the termination order will be canceled, and the employee will be reinstated with all rights.

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

Usually, former employee any “compensation” funds are paid in order to terminate the employment relationship peacefully and without consequences for both parties. In court, all arguments will be useless. Recovery is almost impossible.

How to resign

To do this, you must notify the employer 2 weeks in advance. If so, it can be done orally. But in the event of a conflict, it will be difficult to prove it later in court. Therefore, in order to avoid misunderstandings, statements should be written.

Sample spelling

It does not require special requirements and special legal education. You can write the following in the name of the head: “In accordance with Art. 80 of the Labor Code of the Russian Federation, I ask you to dismiss me from my position.

Below - number, signature. From the date of receipt by the head or other authorized official This application will be counted two weeks.

Everyone should know this

It is important to know two very important things:

• When writing such a statement, it is not necessary to specify normative acts.
• No one has the right to forbid quitting of their own free will.

Do not sign the application. What to do?

It is a fairly common practice when a person wants to change the company for one reason or another, and they begin to put spokes in his wheels: “there is no director in place”, “come on, I will sign it later”, etc. And after a while they refuse with the wording "there is no one to work", "I do not give consent to your dismissal." Some are so dishonest that you can hear the answer "I did not see your statement" and so on.

To avoid these or other problems, it is enough to do one of two scenarios:

1. Write a written application and register it with the secretary or other authorized person.
2. Send registered mail.

The first option will be faster, because. The two-week period will begin the day after registration. The employer will not be able to later say that he "did not see and did not know." The duty of the secretary or other authorized person to notify the authorities as soon as possible.

With the option of sending through the Russian Post service, everything will take a little longer. The two-week period will start from the next day the employer received the letter, not from the time it was sent. 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. P.3 Art. 77 of the Labor Code of the Russian Federation obliges to do this.

If you change your mind, what should you 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 already submitted application, it is necessary to write and also officially register a new one in accordance with all the rules. No matter how good the employee seems to be, or the relationship between him and employers, it is important to know the main rule: the application for refusal to dismiss must be submitted officially, i.e. in writing through the secretary or by mail.

What is it for?

There are 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 states that he has changed his mind. The director, knowing the law, says with joy on his face that "I understand everything, work on."

After a two-week period from the moment the application was written, it is issued in accordance with paragraph 3 of Article 77 of the Labor Code of the Russian Federation - at its own request.

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.

When refusing, there is one very important nuance. If, from the moment of submission to his refusal, a written invitation for acceptance to this position was sent to another person, then it will no longer be possible to cancel it.

Here the law will be on the side of the future worker; 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 way back.

Where to defend labor rights

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

• Contacting the Labor Inspectorate.
• Statement of claim in court.
• Appeal to the prosecutor's office.

A citizen of the Russian Federation whose rights have been 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 the court. This can only be done by the prosecutor's office, or Labour Inspectorate. To do this, you need to send a complaint to these structures.

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

Cases exempting from working off

IN Labor Code there are reasons that allow an employee to leave earlier than the due date of 14 calendar days. Let's say right away that the report begins the next day after the submission of the corresponding notification.

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 bringing of the employer to responsibility. And it must necessarily concern the employee who decided to leave earlier than expected.

When will the calculation be?

After an official order, all payments for hours worked must be made on the day of dismissal. And this is not a "gift" from the company, it is a duty according to the Labor Code. Violation of this rule is a reason to defend your rights and contact the 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 earnings and the exact number of days worked. Payments on it must also be made on the day of the dismissal order.

The only exception to this rule is paid sick leave. From the moment the medical certificate is provided, the accounting department makes a recalculation within 10 days and pays it on the day of salary at enterprises.

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