Every able-bodied citizen is guaranteed the right to work. Similarly, the law ensures the rights of workers to safe working conditions, to rest and wages and, paradoxically, the right to be fired. Dismissal at the initiative of the employee is the right that no employer can challenge. Even if unfinished work remains, even if the employee has not handed over his affairs to his successor, or a shortage is found in his work area. Can't be fired.

Another question is how to dismiss correctly, so that neither the employee himself, nor the employment service, or the labor inspectorate have any claims. As you know, sometimes a valuable specialist is left without a job, because he resigned, allegedly "on his own" from a previous enterprise, but has not yet found a job at another. Due to such special cases, Lately Inspectorate more closely checks cases of dismissal own will disabled, pregnant women, and other unprotected categories of employees on the subject of "forcedness" or voluntariness of such care.

How to fire an employee on his initiative

With this wording of dismissal, both for the employee and for the employer, the law establishes some requirements. So, the employee must declare the desire to leave in writing. And at the same time, he does not ask for permission to quit, but confronts the organization with the fact that he does not intend to continue the existing labor Relations under an earlier agreement. And this means that he can leave work after fourteen days, in any case.

If the employer still has unresolved issues with him, or conflicts, then all disputes can be referred to the court for resolution. This refers to disputes of a property nature, and not a refusal to fulfill an order, etc. All personal and controversial issues must be resolved while the employee is working at the enterprise, including by drawing up acts and documents on violation of labor discipline by him. After that, such a specialist can be brought to disciplinary responsibility. But only while he is on the staff of the company.

The procedure for dismissal at the initiative of the employee is quite simple:

• First, the employee submits an application for his resignation, and the person who accepted this application from him must stamp and sign that the document has been received;
• After submitting the application, if there are no good reasons to dismiss him earlier, you must work for another two weeks in this position until the employee is found a replacement;
• After a two-week period, the employer is obliged to issue a dismissal order;
• The specialist gets acquainted with the order of his dismissal, which he signs;
• Information about the dismissal is also entered in work book, with the wording of dismissal, exactly as specified in the Labor Code;
• After the employee has read the entry in his labor book and received it in his hands, he must also sign in the journal of movement and accounting of work books at the enterprise;
• The company issues certificates of income and deductions;
• A settlement is carried out with the employee - he is paid a salary and compensation for unused vacation.

When can an employee be fired at will?

There is a statutory prohibition on terminating an employment contract with an employee during his absence from the place of work for a good reason, for example, on sick leave or on vacation. But such a requirement does not apply to cases of dismissal of an employee at the initiative of the employee. He has the right to leave his position both during the holidays and during the period of illness. Only the procedure for submitting an application, and the procedure for obtaining documents, is changing.

Depending on how long the vacation lasts, it may happen that the employee does not have to work out the required two weeks at all. Because the terms established by law are not interrupted on vacation, or when the person concerned is on sick leave. The employer does not have the right to keep him at work for the reason that he did not work the actual time. But the Code does not indicate anything about the actual work. The deadline for the notice of dismissal was established, and not the accepted term for the so-called "working off" for the benefit of the enterprise.

But there is a nuance that is worth paying attention to both the employee and his employer. If, after leaving the vacation, or from the sick leave, the order was not issued to terminate the employment contract, and the employee himself began to perform his labor duties, it is no longer possible to dismiss him. That is, the contract continues to operate. And, if the specialist still wants to quit, he will again have to submit an appropriate application, and then wait fourteen days before terminating the employment relationship.

The procedure for processing the termination of employment relations

An order to dismiss an employee at the initiative of the employee is drawn up in accordance with the approved T-8 form. All settlements must be made on the last working day of such employee. The exception is all the same cases of illness, or the employee goes on vacation. And, what is noteworthy, if the company allowed the employee to go on vacation with subsequent dismissal, the last day of work is considered not the last day of vacation, but the day before leaving for a legal paid annual vacation.

Documents related to work are handed over to the employee personally, and he must mark the fact of their receipt in the journals and documentation of the enterprise. Accounting statements must also contain information on the issuance Money on the specified last business day.

Termination of labor relations is possible only on the grounds provided for in the Labor Code of the Russian Federation. Their list is quite exhaustive. In most cases, the termination of the employment contract is made at the personal request of the employee.

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Labor law provides the opportunity to terminate on this basis both an employment contract concluded for an indefinite period and a fixed-term contract.

General information

Constitutionally, forced labor is prohibited in Russia, so the employee has the right to terminate labor contract on their own initiative.

The only caveat is that about your intention to leave workplace it is necessary to notify the authorities no later than 2 weeks before the proposed dismissal.

This time period is left so that the management of the company has time to find and invite a new employee to the vacancy.

In the event that the employee spontaneously leaves the workplace before the expiration of the two-week period, disciplinary measures may be applied to him.

Within two weeks, the employee retains his workplace and his position. During this period, the employee also has the right to withdraw a previously submitted application.

If 2 weeks have expired, and the employee has not been fired and does not insist on dismissal, then officially the employment contract continues to be valid.

You can also ask your employer to provide unused vacation instead of working out. But the authorities may not approve such a move.

If an employee changes their mind about leaving

There are times when, after submitting an application, the employee decides to change his mind and stay in his place. In this case, he must indicate his desire no later than the end of the two-week period from the date of application.

When the application is withdrawn, the employee may remain at his workplace, or may still be fired.

One of the frequently applicable types of termination of employment is considered to be dismissal at the initiative of the employee, which is regulated by paragraph 3 of part 1 of Art. 77 and Art. 80 of the Labor Code of the Russian Federation. Many nuances that arise in the dismissal procedure require a more detailed consideration of this method of terminating an employment contract.

What regulates the dismissal at the initiative of the employee

Termination of an employment contract- this is a recorded event indicating the end of the relationship between the employee and the employer in the field of work. An employee completely stops working, in contrast, for example, to a temporary termination of duties due to going on vacation without pay. That is, termination labor contract means the dismissal of an employee.

An employment contract can be terminated when there are sufficient grounds provided for in existing laws. exhaustive list such grounds, as well as a regulated procedure for dismissal, are the most important guarantee of the right of any person to work.

Best Article of the Month

If you do everything yourself, employees will not learn how to work. Subordinates will not immediately cope with the tasks that you delegate, but without delegation, you are doomed to time pressure.

We published in the article a delegation algorithm that will help you get rid of the routine and stop working around the clock. You will learn who can and cannot be entrusted with work, how to give the task correctly so that it is completed, and how to control staff.

The most common general grounds for terminating an employment contract dismissal at the initiative of the employee is considered. This basis is enshrined in paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

Consider next few important points legal regulation voluntary dismissal of an employee:

1. It is not so important what kind of contract is concluded with the employee: fixed-term or permanent basis in any case, he has the right to terminate it.

Earlier in the Labor Code of the Russian Federation, Article 31 provided for some prohibitions on terminating fixed-term contracts, in the modern Labor Code of the Russian Federation there are no restrictions on dismissal at the initiative of an employee. If suddenly your organization has labor fixed-term contracts, which were concluded before February 2002, and they still contain prohibitions on termination of labor relations at the will of the employee, they urgently need to be amended. Also, all local regulations of the company containing the above restrictions are subject to changes.

The employer should not forget about the rules of Article 8 of the Labor Code of the Russian Federation, which clearly states that if local regulations worsen the position of employees, then such acts should not be applied by the company. Important are the norms of Part 2 of Article 9 of the Labor Code of the Russian Federation, which states that the requirements of an employment contract cannot restrict the rights of employees or lower the level of their guarantees compared to the current labor legislation.

1. Didn't calm down for a long time controversial issue among personnel officers, which article of the Labor Code of the Russian Federation to refer to when dismissing at the initiative of an employee in orders, as well as in work books. There were two options: p. 3, part 1, art. 77 and Art. 80. All doubts were resolved by the Government of the Russian Federation in favor of the first option.

On April 30, 2004, the “Rules for maintaining work books” came into force, in paragraph 15 of which it is clearly stated that, for the reasons provided for by Article 77 of the Labor Code of the Russian Federation, a mark on the termination of the employment contract is entered in the work book with a footnote to the appropriate paragraph of the first part of Article 77 But dismissal at the initiative of the employer (clause 4, part 1, article 77 of the Labor Code of the Russian Federation) and dismissal due to circumstances that do not depend on the will of the parties to labor relations (clause 10, part 1, article 77 of the Labor Code of the Russian Federation) have become exceptions to this regulations. That is, in addition to the Labor Code of the Russian Federation, it is necessary to study a lot of regulations that will help you see the picture of labor legislation as a whole.

• Dismissal of one's own free will: rules and "pitfalls"

Rules and procedure for dismissal at the initiative of the employee

If the employee has finally decided to leave the company, then only by submitting a written application that clearly and clearly expresses his will to quit, the employer will be able to terminate the employment contract with him. Such a statement is written in any form, in the form of a simple letter of request, and in the form of a telegram filed from the place of vacation. That is, the employee must be sure that his application has been sent and received by the employer. To do this, he can independently register an application with the company secretary or send it by registered mail with notice. There are no other ways, except to express your will in a written statement, proving the employee’s desire to quit.

Resignation letter

Where does the employee need to start if he independently decided to quit? The dismissal procedure at the initiative of the employee always begins with a written application, the mandatory attributes of which are:

• position and surname, name, patronymic of the employee;
• indication of the date of the last working day, that is, dismissal;
• prescribing the grounds for dismissal - "at the initiative of the employee";
• indication of the date of writing the application.

There is no specific fixed unified application form; it is written in free form in the name of the general director of the enterprise and signed by the resigning employee with his own hand.

Strive to ensure that employees formulate the statement accurately. If a personnel officer believes that the application is written incorrectly, then, on his strong recommendation, it is better for the employee to rewrite the application. After reading the text of the application, an unambiguous conclusion must be made - the employee expresses his will to terminate the employment relationship, otherwise the dismissal may be declared illegal through the courts. Recognition of the dismissal as illegal may entail the reinstatement of the employee in his former workplace.

Term and date of dismissal

The legislation of the Russian Federation regulates the terms of dismissal in the Labor Code. It is the Labor Code of the Russian Federation that regulates the specific deadlines for submitting an application by an employee, so he must notify the employer of the planned dismissal no later than 14 days before the date of termination of the employment contract. These two weeks begin to flow the next day after the day of registration of the letter of resignation at the initiative of the employee. But there are a number of exceptions to this rule.

For example, for the head of the enterprise, a period of 1 (one) month is set, and for employees who are on probationary period, as well as employees hired for a certain season or up to 2 (two) months - no later than 3 (three) days.

The employee may not comply with the two-week deadline and independently write in the application the expected date of dismissal, in case of:

• if the dismissal of an employee is directly related to the violation of labor laws by him. Such an offense must be recorded by the commission on labor disputes, judicial authorities, labor inspectorate or trade union bodies;
• if the dismissal is due to the inability to continue to perform labor obligations in connection with retirement or admission to educational institution etc.

Increasingly, there are cases when the employer and employee do not oppose an earlier number of dismissals. Having agreed on the day of dismissal, you can terminate the employment contract without working out the prescribed 14 days.

An employee can submit a personal application, both while on vacation and on sick leave, but one must not forget to respect the 14-day period for notifying his employer.

Often, when forming a letter of resignation at the initiative of an employee, the resigning employee does not prescribe the number of termination of the contract. In this case, the employer affixes a visa indicating the dismissal of the employee after two weeks from the date of registration of his application. We strongly suggest that you ask the employee to express his will in a statement indicating the specific date of his dismissal. An accurately written date of dismissal will eliminate misunderstandings between the employer and the resigning employee.

The personnel service does not have the right to dismiss an employee earlier than the date written in the application.

1. The order on personnel must be issued in the form T-8. In the line of the grounds for dismissal, you should indicate “of your own free will” and at the same time be sure to add a reference to paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation. It is important to familiarize the employee with the dismissal order at the initiative of the employee against signature. If he does not want to get acquainted with the order, a special note is made about this.
2. The specialist of the personnel department is obliged to enter a record of dismissal in the work book of the resigning employee. It is extremely important to provide a work book to an employee on his last working day. But if it is not possible to return the book, then notify the employee by letter of the need to appear for it or get permission to send it by mail. By following these simple recommendations, you will relieve yourself of responsibility for non-compliance with the legal deadlines for issuing a work book.
3. Calculate the salary with the employee by making a note-calculation (form T-61).
4. An entry is made in the employee’s personal card, drawn up by the personnel department in the T-2 form, about the termination of the employment relationship, indicating the grounds for dismissal at the initiative of the employee. In the personal card, the employee also affixes his introductory signature.
5. In addition to the work book, the employee must be given: copies of orders for hiring, transfers, dismissal; a salary certificate, a 2-NDFL certificate and other documents necessary for a retiring employee on his personal application submitted to the employer in advance.

Employee Debt

The head of the enterprise should not use any debts of the employee as an obstacle to dismissal. Any debts former employee can be recovered through the courts. More likely to win a lawsuit with an employer who has been assigned the status of a financially responsible person.

Transfer of cases before dismissal to another employee

Make sure that the local regulations of the company and employment contracts with employees contain a rule for the mandatory transfer of cases of a leaving employee. Failure to comply with the requirement for the transfer of cases, the resigning employee may receive a disciplinary sanction, which, in turn, cannot become an obstacle to dismissal at the initiative of the employee.

If an employee changes their mind

During the 14 days worked out, the employee can write a withdrawal of the application, but at the same time it must be registered and provided to the employer. When an employee expresses a desire to first go on vacation and then be fired, he can withdraw this application only before the start of the vacation period.

What should an employer do if an employee suddenly changes his mind about quitting? The dismissal will be carried out when another specialist has already been invited to the place of the employee who changed his mind about resigning, to whom the company cannot refuse to hire (for example, if he was invited by transfer from another employer). If the date of dismissal has come up, and the employer has not terminated the employment contract and the employee continues to fulfill his official duties, then the actual employment relationship continues. In this case, additional documents will not be required.

• Dismissal under the article: how to apply tough measures to the guilty

Expert opinion

It's not always about money

Vadim Galtsov,

General Director of Gicom, Krasnodar

Often, employees who want to quit of their own free will subjectively perceive the current situation in the company. Someone does not like the team, someone does not like the assessment of his work, someone does not like the level of wages.

It is necessary to talk with your employees, ask what does not suit them, listen to suggestions for correcting this or that situation. Be interested in each employee, show your desire to help and understand their problems. Try to offer the employee options for getting out of the current circumstances, help him fulfill himself in the company. A conversation with management is sometimes so effective that the employee changes his mind to leave the company, and the employer gains invaluable experience in communicating with his subordinate. Let's look at an example. A couple of years ago, a senior manager at our company expressed his desire to quit. I did not want to lose a valuable employee, changed the plans of the working day and called him for a conversation. At the very beginning of the conversation, I found out that the main reason for dismissal at the initiative of the employee is the salary that does not satisfy him. But upon closer examination of the problem, it turned out that the specialist was primarily dissatisfied with the company's document flow, namely, that the delay in documents hinders the provision of quality services to customers and, accordingly, increases the profitability of the enterprise. During the discussion, we found several acceptable options for a way out of this situation. As a result, as a manager, I was able to see the current situation with the document flow, helped return a valuable employee, and also considered the possibilities for developing the career of this employee in the company.

Dismissal at the initiative of the employee: own desire in a properly executed application

We will consider the requirements for filling out an application for dismissal at the initiative of the employee (sample is attached), despite the fact that the legislation does not provide for a unified form of such an application.

As a general rule, the application must be written on A4 sheets and addressed to the head of the company.

Regarding the date, then it is not necessary to comply with the minimum period for submitting an application given by law, you can submit it both in a month and in two months.

The day an employee leaves is their last day. labor activity. Therefore, when writing the date of the last working day in the application for dismissal at the initiative of the employee, it is important not to use the preposition “from”, that is, you cannot write “please fire me from February 15, 2017”, but you need to write “please fire me on February 15, 2017” . If in the application the preposition “from” is in front of the desired date of dismissal, then the date of dismissal can be disputed by the parties to the employment relationship. By submitting a well-formed application to the employer, the employee will be able to avoid misunderstandings related to the interpretation of the date of dismissal.

• Grounds for dismissal of an employee: what to look for

Compensation and payments upon dismissal at the initiative of the employee

Whatever the reason for the dismissal, the employer is obliged to the resigning employee to pay all payments due to him. The Labor Code of the Russian Federation fixes the conditions and procedure for paying all types of compensation that must be paid to an employee upon dismissal. Let us dwell in more detail on the payments due to the resigning employee.

When an employee terminates an employment relationship must be paid:

1. salary for actual hours worked;
2. severance pay(cases determined by labor laws);
3. monetary compensation for unused days holidays.

Payment of wages

Employees who decide to quit must be paid on time, in accordance with Article 140 of the Labor Code of the Russian Federation, that is, no later than the date of dismissal. If the dismissed employee did not work on his last working day, then all payments must be transferred no later than the day following the submission of the final settlement request to them. If there is a dispute between the parties to the employment relationship over the amount due to the employee upon dismissal, then the employer is obliged to pay at least that part of the money that he does not dispute.

The salary must be paid to the employee for the time actually worked in the month of dismissal, namely: salary, additional payments, allowances, bonuses.

Compensation for unused vacations

According to the Labor Code of the Russian Federation, dismissal at the initiative of the employee entails the obligation of the employer to pay monetary compensation for all vacation days (holidays) not used by the employee. Instead of monetary compensation upon dismissal, the employee has the right to indicate in the application his desire to go on vacation with subsequent dismissal. The last day of vacation will be the day of dismissal. The issuance of a work book and the payment of all amounts due to the employee must be carried out immediately before he goes on vacation. If an employee falls ill during a vacation, he is paid temporary disability benefits, but the vacation is not extended by the number of days of sick leave.

Leave before dismissal is not granted if the termination of the employment contract is associated with the implementation of guilty actions on the part of the employee.

The employer must remember and comply with the rules of Article 124 of the Labor Code of the Russian Federation, which contains a direct ban on not providing employees with annual leave for two consecutive years. If an employee of your company has not been on vacation for more than two years in a row, you will have to make strong arguments in your defense before the inspection authorities. Such a good reason will be recognized as the postponement of the leave at the written request of the employee to another working year.

The calculation of the number of days to be paid by the employer depends on the number of months worked during the working year. The period from which the employee's vacation is calculated will begin from the day and month in which he actually started work, and not from January 1 of the calendar year.

If an employee who expressed a desire to quit did not work out the period that gives him the right to compensation for vacation in full, then monetary compensation must be paid in proportion to the days of vacation only for the months worked. If the month worked by an employee is less than half, then it should not be taken into account when calculating compensation. A month in which an employee has worked more than half of it is counted as a whole month.

There are cases when, on the date of dismissal, it turns out that the employee took leave in advance for an incompletely worked year, then sum of money, overpaid for unworked vacation days, are withheld from the employee's salary (Article 137 of the Labor Code of the Russian Federation).

No retention when an employee leaves due to:

• clause 1 of article 81 of the Labor Code of the Russian Federation - liquidation of a company or termination of business by an employer who is individual;
• clause 2 of article 81 of the Labor Code of the Russian Federation - reduction in the staff or number of employees of the company;
• sub. "a" paragraph 3 of Article 81 of the Labor Code of the Russian Federation - the employee does not correspond to his position or the activities he performs due to his state of health on the basis of a medical report;
• Clause 4 of Article 81 of the Labor Code of the Russian Federation - change of ownership of the company's property. On this basis, the director, deputy directors, Chief Accountant;
• Clause 1 of Article 83 of the Labor Code of the Russian Federation - conscription of a company employee into the army or alternative civilian service;
• clause 2 of article 83 of the Labor Code of the Russian Federation - reinstatement of an employee in accordance with a court decision or state inspection by labor;
• clause 5 of article 83 of the Labor Code of the Russian Federation - according to a medical report, which recognized the employee as completely incompetent;
• clause 6 of article 83 of the Labor Code of the Russian Federation - as a result of the death of an employee or employer who is an individual, as well as when these persons are recognized by the court as missing or dead;
• Clause 7 of Article 83 of the Labor Code of the Russian Federation - the onset of such emergency circumstances as: catastrophes, major accidents, natural disasters, hostilities, epidemics, etc., which prevent the further operation of the employment contract. In this case, a circumstance is recognized as an emergency only by a decision of the Government of the Russian Federation or government agency subject of the Russian Federation.

Article 139 of the Labor Code of the Russian Federation regulates the calculation of the average daily wage.

On the day of dismissal, the employee must pay severance pay. Article 178 of the Labor Code of the Russian Federation provides that the provisions of an employment contract or collective agreement may provide for other cases of payment of severance pay and even establish their increased amounts.

Based on Article 139 of the Labor Code of the Russian Federation, the calculation of the average salary of an employee should be made according to the actually accrued earnings and the hours actually worked for the twelve months that preceded the day of payment. The collective agreement may also provide for other periods for calculating the average salary, but only if this does not worsen the position of the employee.

The amount of severance pay can be calculated as follows: the average daily wage is multiplied by the number of working days of a five-day or six-day working week, which fall on the first calendar month from the moment of dismissal, while holidays are not taken into account.

What you need to know about early dismissal by agreement of the parties at the initiative of the employee

If the parties to the employment relationship were able to agree, then the dismissal at the initiative of the employee can be made before the end of the period established by law.

Agreement of the parties as the basis for termination of the employment contract used when the parties mutually decided to terminate the employment relationship with each other. If an agreement is reached between the employer and his employee to terminate the employment contract, then neither party will be able to revoke it unilaterally.

An agreement can be canceled only with the mutual consent of the parties to the employment relationship (clause 20 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004).

If the employee himself expressed a desire to terminate the employment relationship and wants to resign at will in law deadlines the consent of the employer is not required.

The opinion of the employer is necessary when agreeing on a certain number of dismissals. In the event that the head of the company takes the principled position of refusing to agree on the date of dismissal before the expiration of the legal period, the employee will be required to work for the company for the prescribed two weeks.

Early termination of work in the example above would be considered a disciplinary offence.

There are certain restrictions for the employer, subject to the procedure for dismissing an employee at the initiative of the employee. So, the employer is not entitled to dismiss the employee without his knowledge before the end of the two-week working period.

How is the dismissal on probation at the initiative of the employee

Labor legislation provides for the possibility of dismissal at the initiative of an employee (Article 71 of the Labor Code of the Russian Federation) while he is on probation. For example, a specialist was hired, but very soon he realizes that he cannot perform his job duties for certain reasons.

It is not difficult to quit on probation, you just need to notify the employer three days before the date of dismissal by writing a statement on this fact.

IN without failmust be specified in the employment contract both the presence of a probationary period and its period.

If the terms of the employment contract do not indicate a probationary period, this means that the employee has been hired for a position without a probationary period.

A probationary period, the maximum duration of which is three months, is assigned to the employee only with his consent. For the head and his deputies, for the chief accountant and his deputy, the maximum probationary period is six months. If an employment contract is concluded with an employee for a period of two to six months, the probationary period may not exceed two weeks. When the term of the employment contract with the employee is less than two months, the head of the company may not establish a probationary period at all.

The employer cannot prolong the period of probation due to the norms of labor legislation, which establishes deadlines for the appointment of an audit for an employee. But the employer has the right to extend the probationary period for the number of days that the employee was away from work for good reasons (illness, unpaid leave, etc.). In this case, the test of an employee can last even a couple of months.

Dismissal during probation

By notifying the employer three days before the expected date of dismissal, the employee can initiate the termination of the employment relationship with him.

The employer is not entitled to obstruct the dismissal at the initiative of the employee. An entry in the work book is made on the last working day of the employee, which is also the day of dismissal. On the day of dismissal, give the employee a completed work book and full payment.

To the departing employee must be paid:

• salary;
• compensation for all days of unused vacation;
• severance pay (if it is provided for by the labor or collective agreement, local regulations of the company).

All this must be paid by the employer no later than the date of dismissal. That is, during the probationary period, the procedure for dismissal at the initiative of the employee is the same as for dismissal outside the probationary period.

An employee who decides to leave the company is not required to inform the employer of the reasons for the dismissal. It is enough to notify the employer in writing, but here you need to take into account certain nuances:

1. If an employee who is a financially responsible person is dismissed, then he must without fail transfer all affairs to a successor. Since this rule is not spelled out in the Labor Code of the Russian Federation, it is better to register it in the local regulations of the company. Nevertheless, the Labor Code of the Russian Federation provides that if a financially responsible person fails to hand over the property of the company entrusted to him, he begins to bear personal liability.
2. An employee, according to general rules, is required to work for two weeks, but if he leaves during the test, then the working period is reduced to three days.

Reasons for dismissal at the initiative of the employee

The most common reason for making a decision to dismiss at the initiative of an employee is dissatisfaction with pay or lack of career opportunities. Agree that the second reason is more important than the first. An employee who assumes the prospect of his development in the company understands that growth career ladder also leads to higher wages.

good reasons

There are certain valid reasons for dismissal at the initiative of the employee, which make it possible to maintain his seniority:

• an illness that has become an obstacle to continuing work or living in the area;
• employee achievement retirement age or retirement of a working pensioner;
• the need to move;
• caring for a child under 15 years old, a sick family member or a disabled person (if provided from medical institution medical report);
• distribution of a spouse (wife) for foreign work or service;
• non-compliance with the terms of the labor or collective agreement by the employer;
• enrollment in an educational institution.

Reasons that are indicated in the resume

According to statistics, applicants in the resume indicate the following reasons for dismissal at the initiative of the employee:

• dissatisfaction salary;
• there is no opportunity to develop and grow in the company. The lack of motivation and career prospects leads to the fact that employees think about changing jobs, but at present, applicants use this reason as a cliché, perhaps a completely different reason is hiding behind it;
• dream to find your destination;
• due to personal and family problems;
• remoteness of the workplace from home.

• Reduction of employees as a way out in difficult times

Dismissal of an employee on his own initiative, when the employee is the general director

What reasons can push a top manager to think about changing jobs?

• the general director is not satisfied with the salary level;
• there is no opportunity for growth and development;
• no rapport with the owner of the business.

Maybe you are exhausted and think that you have stopped developing in the company? Maybe you would like to do more for the company than the business owner requires? This is how a conflict of interest is born. The business owner is interested in your candidacy for the post of CEO, but you have "outgrown" the company and do not see further prospects for yourself in it. Every person sooner or later feels the need personal growth, and during this period he begins to actively look for a way to change his work activity.

Negotiations with the owner

Do not hide problematic situations from the business owner, voice the difficulties that the company is facing, and perhaps together you will find the most acceptable way to resolve them. From such a conversation with the business owner, you should understand whether he wants to help you and whether he can change something. What measures can the owner of the company take:

• find an approach to the CEO in order to improve relations with him;
• enable the growth of the CEO in professional direction, to allow him to act independently for the benefit of the company;
• change working conditions, including the salary level of the CEO.

Extremely important: the CEO must himself understand what he wants and what he can, he should not ask the owner of the business for some improvements to the company, but should demand specific actions.

If this or that difficult production situation can be resolved, and the business owner is happy to cooperate with you, then the change of work activity loses its relevance. And, on the contrary, if the owner of the company does not make contact, neglects your ideas for the development of the enterprise, does not allow you to develop and grow professionally, you will again want to apply for dismissal at the initiative of the employee.

Legal aspects

It is very important to observe all the subtleties of the dismissal of the CEO. If the CEO works under an employment contract, then all actions upon dismissal should be specified in it. In the event that the legal basis of the company is the charter, then it is necessary to rely on the term of office of the general director specified in this document, as well as on the timing of notifying the business owner about the upcoming departure of the head of the company.

For example, the company's charter states that the CEO is elected for a period of 5 years and, in case of early dismissal at the initiative of the employee, he is obliged to give notice of his resignation 12 months before the date of dismissal. This is a very difficult period for the CEO, as he is still required to fulfill his labor functions the head of the company, and the owner of the business knows about his intention to leave for another business.

The CEO of a company should not make wrong decisions. For example, he will not be able to conduct business activities worse for ethical reasons, and a sense of legal responsibility will not allow him to work “sloppy” due to the fact that the business owner has the right to sue the head of the company.

Teamwork

Let's assume that you made a decision in favor of dismissal at the initiative of the employee, notified the owner of the business and have to work for the company for another year. There is no need to tell employees about leaving the company, as they are used to you and see you as a leader and curator of business activities. Obviously, with the departure of the CEO, the staff of the company will undergo changes. Wait for a successor to take your place, he will independently make decisions: which of the employees to leave and who to fire, but, in any case, the team under your leadership can work for the benefit of the company for the next year.

Problems of the following nature may also arise: you have gathered people around you with whom you are comfortable working, but it may happen that, having learned about the dismissal of the head of the company, employees will start looking for a new job. You and your staff are at risk of not being a team, because the negative attitude due to the departure of the leader can significantly affect the quality of the work performed.

The task of the CEO is to gently prepare the team for the upcoming changes. There is no doubt that some of the staff will leave after you, but you must transfer the rest of the team to the future leader with a mindset for fruitful cooperation and the well-being of the company. The company is your brainchild, it contains part of your soul, so be interested in its development and future success.

Psychological self-control

It will be a difficult year for you: it is difficult to work and realize that the day of dismissal is inevitably approaching. You will constantly think about another job, how to find it, what requirements to present to the owner of the business, etc. Interest in current activities is falling. What to do if there is no visualization of personal development? When you have made the decision to quit, but there is almost a year before the day of dismissal, the bifurcation stage begins. You must behave ethically towards the company you work for and remain a professional top manager in the eyes of your subordinates. How to be?

1. Control that the profitability of the company and the mood in the team do not go down.
2. It is necessary to conduct business activities as efficiently as possible, while defining the primary goals and objectives.
3. Track the quality of the work you do, it should not go down just because you decided to quit.

Prepare yourself mentally: even if you cannot work with full dedication in the coming year, you will make every effort not to lose the respect of the team.

Search for a new job

Is it necessary to search new job while you work on the former? Would this be correct behavior on your part? By actively leaving in search of a new job, you run the risk of inciting rumors in the team and mistrust among partners. The company's reputation may be damaged. You, as the current head of the company, can set up the team for your departure, but at the same time present it as a strategy for the development of the enterprise. Before direct dismissal at the initiative of the employee, you have the right to send an official appeal to colleagues, partners, competitors, where you clarify the situation of your departure and highlight the potential future of the company.

It is extremely important that the position of both the owner of the business and the position of the resigning CEO are the same. Make an effort to ensure that the company prospers after you leave. This fact will increase you in the eyes of the future employer as a leader who has completed the assigned tasks and achieved the goals.

• Termination of an employment contract in accordance with the Labor Code of the Russian Federation: a cheat sheet for employers

Expert opinion

When a director is dismissed on his own initiative, the shareholders face the question: “What to do?”

Elena Malysheva,

Attorney at Law, Managing Partner of Law Office "Advokat-Alliance", Moscow

If we consider the dismissal at the initiative of the employee from the position that the dismissed employee is CEO company, the procedure for terminating an employment contract with a manager should be carried out strictly within the legal framework. If the procedure for dismissal of the manager at his request is prescribed in the charter or local regulations, but contradicts the current labor legislation, then such rules cannot be applied.

According to Article 280 of the Labor Code of the Russian Federation, “the head of the organization has the right to terminate the employment contract ahead of schedule by notifying the employer (the owner of the organization’s property, his representative) in writing no later than one month in advance.” That is, the Labor Code limits the head for a period of only one month.

It is extremely doubtful that a business owner can on their own initiative to set a time limit higher than that established by law. But it is necessary to take into account the difficulties that the business owner will face when the head of the company leaves. Suppose that the general director informs the employer about the dismissal at the initiative of the employee, while the general meeting of owners legal entity planned only in 8-9 months. Business owners have a lot of questions: “What to do next? Is it necessary to call an extraordinary meeting of shareholders? Who will be responsible for the CEO of the company? In many organizations, the CEO has one or more deputies, so there should usually be no problem as to which one should be given leadership duties prior to the meeting. general meeting owners. But difficulties may arise in recognizing the deputy general director as the legal representative of the company, if this situation is not provided for by the provisions of the charter.

I only once saw the charter of one company, which actually stated that during the absence of the general director, his deputy was appointed acting head of the company.

What difficulties may arise when there is a dismissal at the initiative of the employee

As a rule, all the difficulties with dismissal of one's own free will associated with employee claims.

We propose to consider them in more detail:

1. The employee forgets to indicate in the letter of resignation at the initiative of the employee that he wants to terminate the employment relationship at his own will. This is an infrequent mistake, but if the employee did not clearly indicate the reason for dismissal, then you must ask him to rewrite the application. The application must contain a request: “I ask you to terminate the employment contract on my initiative” or “I ask you to dismiss me of your own free will.” If it is not clear from the text of the application that the employee is resigning of his own free will, then after a while he can prove in court that he wanted to quit by agreement of the parties, and the employer unlawfully terminated the employment contract with him.
2. The employee put down in the application for dismissal at the initiative of the employee an earlier date than required by labor law. For example, an employee, in a statement dated February 10, 2017, asks to be dismissed of his own free will on February 16, 2017, but he does not indicate any reasons for such an early dismissal. If the employer needs the presence of this employee at the workplace in connection with the search for another employee and the transfer of all his affairs to him, then the task of the personnel department specialists is to explain to the employee the impossibility of satisfying his request. If the employee insists on the date of dismissal and does not want to properly rewrite the letter of resignation at the initiative of the employee, then personnel workers are required to transfer such a statement to the head of the company. Having considered the application, the manager either agrees with the date of dismissal, or refuses the employee's request, affixing his visa and ordering the personnel service to dismiss the employee within the time period stipulated by the norms of the Labor Code of the Russian Federation. We strongly recommend that you make a competent conversation with an employee at the stage of writing an application in the personnel department of the enterprise in order to convince him to rewrite the application.
3. The employee did not put down the date of dismissal in the application. In principle, the absence of a specific date of dismissal in the application for dismissal at the initiative of the employee is not any mistake or problem for the personnel department specialists. It is more important that the date of its writing is indicated in the application. Personnel workers count 14 days from the day following the day of writing the application, and carry out the dismissal on the last working day of the employee.

• Compensation upon dismissal: how to pay off an employee

In what cases can dismissal at the initiative of an employee be considered illegal?

1. No voluntary resignation letter

One of the reasons for recognizing the dismissal at the initiative of the employee as illegal may be the absence of a statement from the employee with a clear intention to terminate the employment contract of his own free will. This also includes situations where the application is not written by the employee himself.

How to protect the employer from complaints and lawsuits from laid-off employees who deny the fact of writing a letter of resignation of their own free will? Accept a handwritten application from employees, it is better if it is written with a specialist in the personnel department. If the employee defends his position that he did not write a letter of resignation, then the court will appoint a handwriting examination, the results of which will put an end to the authenticity of the document. If the employee brought a printed version of the application, then ask you to put the date, signature and transcript of the signature with you. In rare cases, an employee may write a statement in front of witnesses, but the courts do not always listen to their testimony.

1. Forced to write a letter of resignation of their own free will

There are situations when the administration of the company forces the employee to write a letter of resignation at the initiative of the employee. Such pressure from the employer on the employee is illegal.

According to sub. “a”, paragraph 22 of the Decree of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, termination of employment at the initiative of the employee is possible only when the employee shows his will to quit of his own free will without additional pressure and coercion from the employer. The employee must prove the fact of the absence of a personal will to dismiss and the fact of coercion by the employer's administration.

In practice, it is very difficult to prove the presence of pressure from the employer on the employee when writing a letter of resignation at the initiative of the employee. As a rule, even if the employee was really forced to write a letter of resignation of his own free will, the personnel department will not testify to the fact of compulsion and oppose the employer in court. Even if the representative of the employer says in court that the employee was offered to quit of his own free will, since he did not properly perform his labor duties, it is not possible to prove the fact of a specific compulsion to write an application.

1. Violation of the order of dismissal

A significant reason for the illegal dismissal of an employee can be a number of violations of the procedure for dismissal at the initiative of the employee.

For example, such a significant violation may be dismissal on a date that does not correspond to the will of the employee. If the date of dismissal is specified in the application, and it is outside the period established by law, then the employer does not have the right to dismiss the employee earlier than the declared date. That is, if an employee wrote a letter of resignation on February 10, 2017, and asks to be fired on February 28, 2017, then the employer is obliged to dismiss him on February 28, 2017.

Information about experts

Vadim Galtsov is the General Director of the Gicom company, Krasnodar. Gikom's field of activity: design of warehouses and their further construction, as well as supply and installation of warehouse equipment. Organizational form: OOO. Territory: head office - in the city of Krasnodar, branches - in Stavropol, Sochi, Rostov. Staff: 50 employees. Annual turnover: 190,000,000 rubles (for 2011).

Elena Malysheva, Attorney and Managing Partner of the Advokat-Alliance Law Office, Moscow. "Lawyer-alliance" successfully leads legal activity predominantly in labor services for more than two years.

Labor Code of the Russian Federation) Separate grounds for termination of an employment contract Usually, as additional grounds for dismissal, employment contracts with heads of organizations provide for: - non-compliance with the decision of the general meeting of shareholders; - causing losses to the managed enterprise, society; - admission by the manager due to inefficient work for more than three months of delay in payment of wages, allowances, benefits to employees, established by law; - formation of debts of the organization for the payment of taxes, fees and obligatory payments established by the legislation of the Russian Federation to the budget of the Russian Federation, the corresponding budgets of the constituent entities of the Russian Federation, municipalities And off-budget funds more than three months.

At their own request or at the initiative of the employee?

• • Voluntary dismissal
• Voluntary dismissal
  • How to quit on your own
  • Proper registration of dismissal of one's own free will
  • • Petition from all personnel officers in Russia
  • Cheat sheet for a personnel officer: wording of records when an employee is dismissed
    • How to legally terminate an employee?

Voluntary dismissal The most common reason for leaving work is voluntary dismissal - termination of the employment contract at the initiative of the employee.

Record in the work book: dismissal of one's own free will

Personnel officer. ru”, 2012, N 1 Question: I doubt how to make an entry in the work book. “Fired of his own free will, paragraph 3 of the first part of Article 77 Labor Code Russian Federation”or“ The employment contract was terminated at the initiative of the employee, paragraph 3 of the first part of Article 77 of the Labor Code of the Russian Federation ”? Answer: Based on Part 5 of Art. 84.1 of the Labor Code of the Russian Federation, the entry in the work book on the basis and reason for the termination of the employment contract must exactly comply with the wording of the Labor Code of the Russian Federation or another federal law and contain a link to the relevant article, part of the article, paragraph of the article of the specified regulatory legal acts. As a basis for terminating an employment contract in par.

3 hours 1 tbsp. 77 of the Labor Code of the Russian Federation states "termination of the employment contract at the initiative of the employee."

Cheat sheet for a personnel officer: wording of records when an employee is dismissed

Working time upon dismissal of an employee at his own request general rule the employee continues his labor activity at the enterprise within 2 weeks after submitting the application for dismissal. However, the law also provides for exceptions in certain situations.
So, it is permissible to terminate the employment contract ahead of schedule for the following reasons:

• due to non-compliance by the employer with the requirements of collective agreements, labor contracts and other local regulations;
• violations of legal norms by the company;
• the inability to continue working (for example, as a result of the employee entering educational institution, relocation, retirement and other documented situations).

In the event of a change in plans, a person can withdraw his application during the working period.

We formulate the basis for terminating the employment contract correctly

Also in the workbook are indicated:

• sequence number of the record;
• date of dismissal;
• the name of the document that became the basis for the dismissal of the employee.

The authenticity of the entry in the document is confirmed by the signatures of the management and the dismissed person, certified by the seal of the organization. Special cases of dismissal at the initiative of the employee Registration of the dismissal of an employee in some cases has its own specifics.

How to correctly dismissed at their own request or the initiative of the employee

For example, upon dismissal of one's own free will, the Instruction recommends making the following entry: "Fired of his own free will, paragraph 3 of Article 77 of the Labor Code of the Russian Federation." However, an entry in the work book on the basis and reason for the termination of the employment contract must be made in strict accordance with the wording of the Labor Code or other federal law.

Info

In this case, a reference is made to the relevant article, part of the article, paragraph of the article (Article 84.1 of the Labor Code of the Russian Federation). And paragraph 3 of Article 77 of the Labor Code reads as follows: "Termination of the employment contract at the initiative of the employee (Article 80 of this Code)".

Attention

Consequences of mistakes made during the dismissal procedure Incorrectly carried out procedure and inaccurate wording in documents can become a reason for reinstatement, recovery of funds from the company during forced absenteeism, compensation for moral damage, etc. For example, paragraph 22 of the decision of the Plenum of the Supreme Court RF "On the application by the courts ..." dated March 17, 2004 No. 2 makes it possible for a dismissed employee to prove the fact of coercion to write an application.

How to correctly dismissed at their own request or the initiative of the employee

If it is necessary to terminate the employment relationship with one employee, you can use form No. T-8 and indicate the following information in the order:

• Company name;
• date of dismissal;
• personnel number and personal data of the employee;
• title structural unit organizations;
• the name of the position of the dismissed person;
• grounds for termination labor relations;
• date of drawing up and signing of the order.

If there is a trade union, it is necessary to put a mark on the consideration of its reasoned opinion of the trade union. The completed form is certified by the signatures of the employer and employee, as well as the seal of the organization (if any). In case of dismissal of several employees at the same time, it is worth using unified form No. T-8a.

How to correctly dismissed of their own free will or at the initiative of the employee

The document is drawn up in the form of a table, in the corresponding columns of which are indicated:

• surnames and initials of employees;
• numbers of employees in the report card;
• the name of the structural unit of the company;
• data of employment contracts (numbers, dates of signing);
• date of termination of labor relations between the parties;
• grounds for dismissal;
• names, numbers and dates of documents on the basis of which employees were dismissed;
• marks on familiarization of employees with the document.

Before dismissing an employee of his own free will, it is necessary to familiarize him with the order of the head and certify the fact of familiarization with his signature. This is done on the day of dismissal. In this case, the employee has the right to demand a certified copy of the document.

How to correctly dismissed at the employee's own will or initiative + 200 samples of records «, in their opinion it is necessary to write » the contract is terminated according to. “The question is who is right? How to issue a dismissal of one's own free will Documenting a dismissal Situation: Is it possible to indicate the wording "fired of one's own free will" in the work book Thus, both entries are correct. Deputy Head Federal Service on Labor and Employment Petition from all personnel officers in Russia There are annoying gaps in the Labor Code that complicate the work of personnel officers, although it costs nothing to eliminate them. Cheat sheet for a personnel officer: wording of records when an employee is dismissed It does not matter.
In p.
Preparation of additional documents upon dismissal of one's own free will For the correct calculation of social payments and benefits due to the employee after dismissal, in addition to the dismissal order and the work book, additional documents can be drawn up. For example, a certificate of the amount of wages received 2 years before the dismissal from work may be required in the case of applying for unemployment benefits. However, the employee may require this certificate even after dismissal. Also, paragraph 4 of Art. 11 of the Law "On individual (personalized) accounting in the system of compulsory pension insurance" dated April 1, 1996 No. 27-FZ obliges the employer to issue to the employee on the day of dismissal a certificate of information sent to Pension Fund during the period of employment of the employee.
Such a certificate may be required by a dismissed person when applying for a pension.
The Labor Code of the Russian Federation, which discusses the procedure for terminating the contract on this basis. Moreover, the concepts of "employee's initiative" and "own desire" are presented here as synonymous, interchangeable. Therefore, when filling out the book of the person leaving on the grounds provided for in paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation, you can choose any wording. However, in par. 2 clause 5.2 of the Instruction, as an example, only one of the above formulations is indicated: “dismissed of his own free will”. Thus, when terminating an employment contract at the initiative of an employee, the following entry should be made in column 3 of his work book: “Dismissed of his own free will, paragraph 3 of part one of Article 77 of the Labor Code of the Russian Federation”. E.

Dismissal is a routine job for an experienced personnel officer. Some employees leave of their own accord, others at the "request" of the employer. In any case, each ground has its own procedure. Strict observance of it is aimed, on the one hand, at protecting the rights of hired personnel, on the other hand, at protecting organizations from unfounded claims. former employees. Consider how to dismiss an employee in compliance with all the necessary formalities.

Dismissal Options

Labor legislation provides for 3 options for dismissal:

• at the request of the employee;
• at the initiative of the employer;
• by agreement of the parties.

An employee's own desire is the most common reason for terminating a relationship with an employer:

1. The employee writes a letter of resignation indicating the date.
2. The employer is obliged to satisfy this application.

Difficulties with registration of dismissal at the initiative of the employee, as a rule, do not happen. An exception is issues related to mandatory “working off”. By default, this is 2 weeks that the employee continues to work from the moment the application is submitted.

Certain categories of personnel are entitled to a reduced notice period. This must always be borne in mind, since the “unexpected” departure of such an employee is no excuse for an organization that did not manage to calculate the resigning person in time and give him a work book in his hands.

The employer's initiative involves a more complex process of dismissal. If this is a reduction in staff or the liquidation of a company, the procedure is clearly described in the legislation and does not present problems from the point of view of documentary support. Here the main task is to notify all interested parties in advance in the manner and within the time limits established by the Labor Code of the Russian Federation.

When it comes to the dismissal of an employee unilaterally by the organization, here the "freedom" of the employer is clearly limited: one desire is not enough for this. There is a list of grounds for which an employee can be fired, and a special procedure for fixing violations for each of them. There are no documented misconducts of the employee - there is no reason for dismissal.

A “compromise” option for terminating an employment relationship is an agreement between the parties. In this case, the employer and the employee amicably agree on parting on certain conditions. Most often it looks like this: the organization is interested in dismissing the employee without the risk that he will change his mind and withdraw the application “on his own”. The employee is "bargaining" to receive monetary compensation for his departure.

Dismissal at the request of the employee

The employee has the right to terminate the employment relationship at any time. To do this, he needs:

• fill out an application for resignation of your own free will 2 weeks before leaving;
• work out the assigned days;
• complete the transfer of cases to another employee, if such an order is provided for in the organization.

It doesn’t matter what contract was concluded when applying for a job - fixed-term or indefinite. In any case, the desire of the employee is decisive, and the employer has no legitimate reason to interfere with him.

The application is written in the name of the head with the wording: “I ask you to dismiss me of your own free will “XX” month in words XXXXX of the year”, the current date and signature.

If an employee leaves without working off, he must include in the application the reason for dismissal:

• retirement;
• enrollment in studies;
• moving to another area;
• transfer of a spouse to another place of service / abroad;
• violation of the law, the terms of the employment contract by the employer.

In such cases, the dismissal occurs on the date indicated by the applicant. If required, a supporting document must be attached to the application (certificate from the institute, transfer order, etc.). An employee can leave “one day” without good reason if the employer goes to meet him and allows him not to work.

Without observing the two-week period, you can dismiss an employee on vacation if he submitted an application before it began or already during the vacation, but no later than 14 days before going to work. Then the first post-holiday working day will be considered the date of termination of the employment contract.

Employees on probation, issued under a fixed-term employment contract for up to 2 months and seasonal workers work out not the standard 14, but only 3 days.

On the part of the employer, the procedure for dismissal of one's own will looks like this:

• receipt of an application endorsed by the head of the company;
• creation of an order;
• making an entry in the work book;
• full settlement with the employee on remuneration;
• preparation of documents necessary for further employment (certificates 2-NDFL, certificate of earnings for 2 years and others, at the request of the employee).

Whatever the reason for leaving, personnel documents the same basis will be indicated on which article to dismiss an employee - Art. 77 of the Labor Code of the Russian Federation. On the day of dismissal, the employee gets acquainted with the order and receives a work book in his hands. Up to this point, a person can change his mind and withdraw the application if a replacement has not yet been invited to his place, which "can not be turned back."

Dismissal through agreement

The agreement of the parties implies a quick and simple dismissal procedure:

1. If the initiative comes from the employee, he submits a letter of resignation to the manager.
2. If the employer "asks" the employee to leave the firm, he sends him a written proposal.
3. The parties discuss the terms of termination of the employment contract.
4. The organization and the dismissed person sign a bilateral agreement.
5. The personnel department draws up an order, fills out a work book. The grounds for dismissal are paragraph 1 of article 77 of the Labor Code of the Russian Federation.

The agreement is the best option for both parties in terms of opportunities and compliance with legal rights. The employer may, having agreed with the employee, dismiss him on any day, even if he is on vacation or sick. The resigned person cannot “change his mind” and cancel the signed document unilaterally. The employee is also not offended - in the process of negotiations, he has the right to defend his material interests and claim compensation.

Dismissal at the initiative of the organization

The initiative to terminate the employment relationship may come from the employer for purely economic reasons - the need to reduce the number of employees or completely close the organization. In the second case, the entire staff goes to the “expenditure”, in the first case, the reduced units, positions, with the exception of those categories of employees who, according to the law, cannot be reduced.

If you need to get rid of a specific person, as they say, “under the article”, the employer is obliged to prove that the employee does not correspond to his position or he has had misconduct in labor discipline. Most often, dismissal occurs for absenteeism, appearing at work in a drunken state, systematic violations with the imposition of disciplinary punishment.

In order to avoid infringement of the rights of personnel, legislators did everything so that a person could not be fired without good reasons. It is quite difficult to “bring under the article” an employee to whom the authorities have a personal dislike, although it is impossible to completely exclude abuses by employers.

Downsizing and company liquidation

The reduction has a clearly regulated process for the dismissal of part of the staff:

1. The decision on reduction made at the enterprise is fixed by the order. For personnel service this is the basis for starting the notification procedure. The information that is important for employees in this case is the date of reduction and change in the staffing table.
2. 2 months prior to the cutoff date, all eligible employees are notified in writing against signature.
3. The employer is obliged to offer the employee another position, if possible. For people who agree to the proposed vacancies, a transfer is issued. The rest are getting ready to leave.
4. A notified employee has the right to leave early without waiting for the cutoff date. If a person who has learned about the impending dismissal has found a new job, the employer must let him go without hindrance. Compensation for the remaining days before the reduction early dismissal does not deprive the employee.
5. 2 months before the reduction, management must notify trade union body, if he is. In case of mass dismissal of workers - 3 months in advance, as well as submit lists to the employment service.
6. For each employee, a dismissal order (T-8 form) is prepared with reference to the basis document. The order is submitted for signature to the dismissed person.
7. An entry is made in the work book indicating the reason for dismissal - paragraph 2 of part 1 of Art. 81 TK.
8. The full calculation includes: wages, monetary compensation for accumulated vacation days, severance pay in the amount of the average salary.

The dismissal due to staff reduction does not apply to certain categories of employees:

• pregnant women and "maternity";
• single mothers with children under 14, with a disabled child under 18;
• trade union members and workers speaking in negotiations with the employer on behalf of the team.

When one of several equivalent positions is laid off, the choice of employees who leave and who stay lies with the employer. However, even here the authorities are deprived of complete freedom. Other things being equal, preference should be given to the most qualified specialists. If it is difficult to determine which of the workers is “more important”, the legislation gives some of them the priority right to keep their jobs. This:

• persons with 2 or more dependents;
• sole breadwinners in the family;
• who have received an injury or occupational disease from this employer;
• disabled people - participants in hostilities;
• improving qualifications on the job;
• other categories provided for in the collective agreement.

These workers are the last to be laid off. An employee cannot be fired if he is on sick leave or vacation. To reduce the temporarily disabled and vacationers, you will have to wait until they go to work.

All these exceptions do not apply to the complete liquidation of the organization. The liquidation procedure practically does not differ from the reduction, except for one thing: the entire staff of the organization is deprived of their jobs, regardless of position, qualifications and social status. Employees who in normal situations have “immunity” from dismissal (pregnant women, single mothers and others) do not have any benefits during liquidation. The employer does not offer anyone a transfer to another position, since it completely ceases to operate.

Dismissal of violators of labor discipline and unsuitable workers

An employee who systematically violates discipline causes the management to understandably want to get rid of him. Labor legislation allows you to dismiss an employee immediately only for a gross disciplinary "crime":

• absenteeism;
• presence at work in a state of intoxication (alcoholic, narcotic), confirmed by a medical examination;
• disclosure of information protected by law (state, trade secret), proven in court;
• theft, embezzlement, material damage to the employer or a third party, recognized by the court;
• violation of labor protection rules with serious consequences;
• loss of confidence for those working with money and commodity values;
• immoral behavior for teachers;
• submission of false documents upon admission to the position.

Dismissal for a single gross violation is a disciplinary sanction. The procedure for its execution includes:

1. Identification of the fact of violation.
2. Fixation of a misdemeanor (drawing up an act, protocol, examination, conducting medical examination etc.).
3. Obtaining written explanations from the offending employee.
4. Consideration of the facts of the case.
5. Drawing up a dismissal order in the T-8 form, references to supporting documents (acts, reports, explanatory, court decisions, etc.) are indicated as the basis.
6. Bringing the order to the employee under the signature.
7. Making an entry in the work book indicating the relevant article of the Labor Code of the Russian Federation.

For example, how to dismiss an employee for absenteeism: in the absence of a person at work for the whole day or 4 hours in a row, it is necessary to document this fact and prove that the employee was absent without a good reason.

Until an explanation is received from the "truant", the "presumption of innocence" is valid. The employee could be on time off, vacation, on sick leave, be subpoenaed, get into an accident on the way to work, etc.

If the employee did not receive any sensible explanations or supporting documents (disability certificate, subpoena, protocol of the traffic police, etc.), the misconduct is regarded as a gross violation labor discipline and qualifies under Art. 81 of the Labor Code of the Russian Federation, part 1, paragraph 6, subparagraph "a". This basis will be recorded in the dismissal order and in the work book.

The list of documents confirming the legality of such dismissal:

1. Notice of absence from work.
2. Explanatory employee or act of refusal to provide explanations.
3. Order about disciplinary action/ layoffs.

If the employer has violated this procedure, even if he has good reasons to dismiss the truant, the “offended” employee has every chance to recover through the courts.

It is also possible to dismiss a person for minor violations, but for this he must have several officially issued penalties (warning, reprimand, severe reprimand). Orders confirming "chronic" indiscipline, in the aggregate, can serve as a basis for severing an employment relationship.

Another “ticklish” issue for employers is how to properly dismiss an employee who, in the opinion of his superiors, does not correspond to his position. There is no other option than to arrange an attestation for an incompetent employee. It is necessary to issue an order, create attestation commission and to evaluate a person's aptitude based on well-defined criteria. Unsatisfactory certification results are a reason for transferring an employee to another position. Most likely, he will refuse, then you can draw up a dismissal with the wording "due to inconsistency with the position held." The deadline for terminating the employment contract is no later than two months after certification.

In cases of disputes related to wrongful dismissals, the courts are more likely to take the side of employees. The reason is simple: a rare organization can boast of an ideal order in internal regulations and personnel documents. The lack of charts job descriptions, regulations on attestation and work schedule, an illiterately drawn up employment contract, “missed” steps when initiating a dismissal - all this can serve as evidence that the dismissal was made in violation of the law.