Table. Dismissal at will: controversial issues

Application for voluntary resignation

The beginning of the dismissal procedure is initiated by the employee by submitting an appropriate application. It must be made in writing , as this is a requirement of the Labor Code of the Russian Federation. We recommend that you immediately write in two copies so that the employer’s mark can be placed on the second one. By this action, protect yourself from unscrupulous employers who, after working, indicate the absence of an application.

The application indicates the date of its preparation so that it is linked to the period of notice of termination of the employment relationship. The legislator set it at two weeks . The period begins on the next day after submission of the application. For example, an application was submitted on 03/01/2016, the last day of work will be 03/15/2016.

If there are difficulties in delivering the application, you can use postal services. It would also be useful to list the attachments in the letter. In this case, the working period will begin from the date of delivery of the postal item.

Consultation with a lawyer on dismissal in St. Petersburg. Tel.+7 (812) 989-47-47 Telephone consultation

Sample application for voluntary resignation

The law does not impose special requirements for an application for voluntary dismissal. However, the details of the parties, the basis for termination of the employment contract, the date and signature of the employee must be indicated.

(

sample application, download in Doc format)

https://youtu.be/SYvmVaSksk8

How to resign of your own free will

The first and most important requirement is compliance with the two-week work rule. That is, the employer must be warned about the employee’s departure two weeks before the expected date. According to the provisions of Article 80 of the Labor Code of the Russian Federation, an enterprise or entrepreneur for whom an employee performs labor functions must be dismissed at his request on the date indicated in the application, taking into account a two-week period. This period was established by the legislator in order to enable the employer to find a replacement for a vacant position so that there is no downtime in work, although this period is certainly short for searching for a highly qualified professional.

If the employee is not permanent, but performs work under a temporary employment contract, or works on seasonal work, then the two-week notice period for dismissal is reduced to three days. That is, the working time of a seasonal and temporary employee is three days.

Actions of an employee who wants to quit

In order for the fact of dismissal of an employee at his own request to take place, it is necessary, at the very beginning, to prepare a written statement of intent to resign. The employee must send it to the employer in any way convenient for him, by personally submitting it to the office of the enterprise or the secretary. Or, send it by registered and valuable mail with a list of the contents and notification of delivery. Any of these methods is considered legally correct if the employee receives confirmation that his application has been accepted.

When submitting an application in person through the office, the personnel department or the manager’s reception, you should definitely ask that on the second copy of this document, a person authorized by the employer stamps and marks the acceptance of the application. Once a mark appears on it, this document acquires the status of legally significant. Firstly, because it confirms the existence of the employee’s will to resign precisely at his own request, and not according to any other wording. And secondly, the second copy remains with the employee as proof of the fact of acceptance, and, after a two-week period, he has the right to pick up his documents and payment.

If an employee is unable to work for another fourteen days, after submitting a resignation letter, due to valid reasons, he must provide the employer, along with the application, with supporting documents that indicate the need for urgent dismissal of the specialist. When filing a resignation letter of his own free will, the employee must attach the necessary documents that will confirm his inability to work for the required period. This could be, for example, a copy of an order to transfer a spouse to another locality, a letter of admission to a higher educational institution, a copy of a medical report, etc.

There is only one important point - before you quit without working, you need to agree everything with the employer again. After all, absence from work without a good reason is absenteeism, and this is a completely different article of dismissal. Therefore, leaving work without permission is not acceptable.

Is it possible to resign from a position of your own free will while on vacation or sick leave?

There is such a situation that an employee, having written a statement about his desire to leave his position, suddenly falls ill during a two-week work period. It is important to know here that management’s demands to work another two weeks after recovery are illegal. And the employee has the right to write a complaint to the labor inspectorate and the court if he is not given documents, or they refuse to fire him, citing the fact that he did not complete the allotted time, or that he did not do the work assigned to him. And the formulations “no one to work” or “no replacement” are not appropriate here.

The same requirement applies to a situation where an employee, having gone on his annual paid leave, wishes to resign. About which I sent a registered letter to the employer. It is necessary to pay attention to an essential feature of calculating deadlines. If the application is sent by mail, then the two-week countdown begins from the next day on which the application was received by the enterprise. Vacation or other lawful absence from the workplace does not interrupt or stop the calculation of work periods.

After his recovery, the employee has the right to come to the enterprise for documents and payment. While on vacation, an employee has the right to come to work on his own to receive a paycheck and work report, or ask to send documents by mail, and the paycheck to bank details. In any case, there must be written consent to mail the employment and required documents upon dismissal.

Please note: if the employer did not dismiss the employee, did not issue an order, did not enter information into the employment contract, and the employee, for his part, did not leave the place of work or stop performing his labor functions, then the employment contract is considered continued. And, if a specialist still wants to quit, he needs to reapply and work for two weeks according to the law. That is why it is important to be careful about calculating deadlines and adhere to the legally established dismissal procedure.

https://youtu.be/TVn-nc9-qbA

Withdrawing a resignation letter at your own request

If, before the end of the working period, the employee changes his mind about terminating his employment relationship, then he can withdraw his application for dismissal at his own request at any time before the expiration of the notice period.

The current legislation does not provide a specific form for recording such a decision. The logical thing to do would be to submit a new application that includes the appropriate wording or notation on the original resignation letter, if possible.

The employer is obliged to accept such a statement and terminate the dismissal procedure. The exception is circumstances in which the latter has already invited another employee in writing, who cannot be refused to conclude an employment contract. Such persons are, for example, employees invited by transfer from another employer.

It should also be taken into account that when submitting an application for leave with subsequent dismissal, it is possible to withdraw such an application only before the day the leave begins.

Who has the right to quit without working?

However, even if the employer wanted it, two weeks of work is not always a mandatory step for an employee resigning at his own request.

We have already mentioned one of the cases when this is not necessary above. We are talking about a situation where an employee specially arranges leave so that it begins immediately after the day on which the application for resignation is submitted, and lasts the two weeks required by law. In this case, the time determined by law for working off will expire while the citizen is resting.

Unfortunately, in some cases, revocation of documentation seems impossible, and then, even if you realize the haste of the decision to leave, you will not be able to change it

In addition, the labor legislation of our country establishes a list of categories of workers who have the right to resign by expressing their personal desire, without working the required period. So, we are talking about the following citizens:

1. Persons enrolled for full-time study at universities or other educational institutions in the country have the right to such an unburdensome departure from the organization.
2. The same opportunity is given to pensioners who refused to continue working due to the onset of a certain age threshold, which today in Russia is:

• 60 years for the fair sex;
• 65 years for men respectively.

Video - Dismissal of one's own free will without work

https://youtu.be/e1ywN95lc4w

Dismissal of one's own free will without work

Under certain circumstances, an employment contract may be terminated within a period specified by the employee. Such grounds are listed in Part 3 of Article 80 of the Labor Code of the Russian Federation. There are two key reasons for the accelerated termination of a relationship: the impossibility of continuing work (entry to an educational institution, retirement, sending a spouse to work abroad, to a new place of duty, etc.) or violation of labor laws by the employer .

The impossibility of continuing work must be documented, because in the event of a dispute with the employer and dismissal on negative grounds, the court will require appropriate evidence to change the wording.

Violation of labor laws also requires written documentation. Authorized persons to record violations may be supervisory and control bodies (prosecutor's office, labor inspectorate, labor dispute commission, etc.).

The presence of special grounds for termination of employment at the initiative of the employee is not an obstacle to a shortened (agreed) period of work, unless the employer objects to this.

Labor lawyer in St. Petersburg. Tel.+7 (812) 989-47-47 Telephone consultation

Dismissal period

An employee has the right to resign at any time (Part 3 of Article 80 of the Labor Code of the Russian Federation

):

• if the dismissal is due to the inability to continue working (in the case of enrollment in an educational organization, retirement, etc.);

• dismissal is due to established violations of labor legislation on the part of the employer.

An employee has the right to resign three days after submitting an application:

• if he resigns during the probationary period (part 4 of article 71 of the Labor Code of the Russian Federation

);

• works under an employment contract concluded for a period of up to two months (Article 292 of the Labor Code of the Russian Federation

);

• engaged in seasonal work (Article 296 of the Labor Code of the Russian Federation

).

An employee has the right to resign one month after submitting an application:

• if he resigns from the position of head of the organization (Article 280 of the Labor Code of the Russian Federation

);

• is an athlete or coach and an employment contract has been concluded with him for a period of more than four months (Part 1 of Article 348.12 of the Labor Code of the Russian Federation

).

An application can also be submitted by an employee during his illness or vacation ( appeal ruling of the Moscow City Court dated May 16, 2019 in case No. 33-20623/2019

).

In all other cases, the employee is obliged to notify the employer of his dismissal at least two weeks in advance. The specified period begins the next day after the employer receives the employee’s resignation letter. This means that the day of filing the application does not count towards the period of notice of dismissal (Part 1 of Article 80 of the Labor Code of the Russian Federation

).

At the same time, by agreement between the employee and the employer, the employment contract can be terminated before the expiration of the notice period for dismissal (Part 2 of Article 80 of the Labor Code of the Russian Federation

).

Before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Such a recall is possible before the expiration of the calendar day defined by the parties as the end of the employment relationship, and when granting leave with subsequent dismissal - before the day the leave begins.

You can also withdraw your application after the dismissal order has been issued. In this case, the employee will not be fired unless another employee is invited to take his place in writing by way of transfer from another employer.

If, upon expiration of the notice period for dismissal, the employment contract was not terminated and the employee does not insist on dismissal, then the employment contract continues (part 4 of article 64, part 4, 6 of article 80 of the Labor Code of the Russian Federation

;
pp. “c” clause 22 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”
;
ruling of the Supreme Court of the Russian Federation dated April 29, 2019 No. 46-KG 19-8
).

Dismissal at your own request during a probationary period

At the beginning of his working life, an employee may decide to terminate the relationship at his own request. And it is not uncommon for an employment contract to include a condition for completing a probationary period.

The probationary period allows both the employee and the employer to take a closer look at each other and assess the need for further cooperation.

For these purposes, the legislator has provided for an accelerated process of termination of employment relations at the initiative of the employee. Part 4 of Article 71 of the Labor Code of the Russian Federation says that three days are enough to notify the employer in writing of the termination of the employment relationship.

Stages of dismissing an employee from his position

The dismissal procedure consists of a number of steps. In order for this process to take place in compliance with all labor legislation requirements, it is important to take each of them into account.

During the dismissal process, you must go through the following stages:

• acceptance and registration of applications;
• publication and registration of the relevant order;
• familiarization of the resigning person with this document;
• preparation of a note-calculation;
• making a full settlement with the person resigning;
• a record of the fact of dismissal in the company’s accounting documents;
• receipt by the employee of a work book with the appropriate mark (confirmed by the employee’s own signature);
• the employee receiving a salary certificate (sometimes this step is initiated by the employer, but more often the certificate is issued at the request of the resigned employee).

In the application, the employee indicates the full name of the manager, as well as his full name, in addition, the date, organization and reason are also indicated (at his own request). The signature of both the person leaving and the boss must be present. The application must be submitted two weeks from the date of dismissal.

If the initiative comes from the employer, then he himself prepares all the documents. In this case, the employee does not need to write a statement.

It can take place both in the secretariat and directly in the human resources department of the organization. The countdown to dismissal begins. Management may require the employee to work the required two weeks before dismissal if the employee has not taken sick leave or vacation, or to release the employee immediately if a replacement is found quickly.

This order is issued according to the unified government form No. T-8, it indicates the full name of the boss who is dismissing the employee, the name of the organization, the details of the dismissed employee, the reason for dismissal (termination of the employment contract at the initiative of the employee, according to the seventy-seventh article of the Labor Code of the Russian Federation), date, signatures and other data (if needed).

Such a document must be registered in the organization’s personnel department in a special journal. Typically, a copy is placed in the personnel file of the departing employee, so that if something happens, the document can be quickly found.

After the document has been drawn up, signed and properly registered, the employee is familiarized with the order of his dismissal under his signature. In addition to the signature, the date when the employee was familiarized with the document is also indicated.

If the employee refused to sign the order or it is impossible to find him, a special mark is placed in the document about the refusal or impossibility of finding the employee (according to the eighty-fourth article of the Labor Code of the Russian Federation). If a person refuses to sign, a special act is drawn up, which must be secured with four signatures (three witnesses and the person resigning).

At this stage of dismissal, an employee of the HR department draws up a special document, which indicates the days of vacation or sick leave unused by the employee or, on the contrary, days that need to be additionally worked. This note is drawn up for further calculation of all payments to the resigning employee that will be made in the future.

Otherwise, the company may have problems with the Labor Inspectorate. The calculation itself is made on the last day before the official dismissal or on the day when the employee comes for the payment if he was on vacation on the last day of work at the enterprise.

Employees of the personnel department fill out the necessary documents and formalize the dismissal of the employee in the accounting documentation of the enterprise (account book, personal card of the employee). The employee himself certifies this registration with his signature.

The resigning employee receives payments and his work book on the last day of work or, in case of absence, the next day when he appears. Delays in issuing this document to the employee are illegal on the part of the employer, so usually there are no delays.

If an employee does not show up for payment and work book on the last day of work, the employer must notify the resigning employee in writing that he must appear for payments and documents (by mail or in an accessible manner). In case of refusal, a special act of refusal to receive a work book is drawn up, which must be signed by three witnesses and the person resigning. If the latter refused, another act of refusal to sign is drawn up. Such acts will be needed when resolving legal disputes.

This happens in a special book for the movement of labor books (form of the Ministry of Labor of the Russian Federation No. 69) by leaving a signature.

Occurs in the personnel department or accounting department. Sometimes the employer himself initiates the issuance of this document, and sometimes the employee has to make an independent request to obtain a certificate.

Dismissal during vacation at your own request

The procedure for dismissal while an employee is on vacation is regulated by the general rules of the Labor Code of the Russian Federation on termination of an employment contract.

An initiative to terminate an employment contract by an employee at his own request can occur both before the start of vacation and during its use. The key is, again, to give the employer two weeks written notice of your decision. At the same time, the employer does not have the right to recall from vacation.

If the two-week period of work for an employee on vacation falls on working days, then the latter must return to work. Otherwise, it can be considered truancy. If the employee has completed his vacation, the last day of work will be the last day of vacation.

Sample document for dismissal

There is no unified form of the document that is mandatory for use. Each company develops a sample resignation letter independently, but there is a general drafting scheme and points that are worth paying attention to. How to write a resignation letter: by hand or in printed form?

A printed document is accepted, but it is initially necessary to write it manually, in clear handwriting reflecting the following information:

1. “Hat” containing the name of the organization, position and full name of the first person - the addressee and the name of the position held, structural unit and full name of the employee - the addressee.
2. Main part containing example text:

Application example:

“I ask you to dismiss me at your own request on March 25, 2019.” The date of dismissal in the application is stated taking into account the work done on the basis of the law or agreement, without the preposition “from”, which introduces ambiguity regarding the last working day. If the reason for termination exempts you from work, it is advisable to add the wording: “in connection with admission to the full-time department of the university, I am enclosing a call to study.”

Download the Application Form for termination of an employment contract at the initiative of the employee (28.0 KiB, 1,490 hits)

Order to terminate a contract with an employee. Form T-8 (41.5 KiB, 1,077 hits)

Agreement on termination of employment contract (sample) (44.5 KiB, 3,496 hits)

If an employee wishes to use vacation before leaving, the relevant information must be reflected. You can additionally indicate the number of the individual contract to be terminated.

1. Current date and signature of the employee. Taking into account the standard period intended for mining, it is advisable to date the document 03/11/2019.

In order to write the application correctly, it is necessary to take into account that the filing date must correspond to the date of preparation and maintain the legal interval with the date of actual termination desired by the employee and indicated in the document. Otherwise, the work period will begin from the moment the document is accepted by the personnel service, which will cause confusion regarding the timing.

Dismissal on sick leave at your own request

Dismissal of an employee on sick leave at his own request is not prohibited by law. Such a prohibition is provided only for dismissal at the initiative of the employer.

The employee can submit such an application either in person or through postal services.

There are cases when an employee who has submitted a resignation letter of his own free will becomes ill. In such circumstances, the working time is not interrupted, and the employer, in the absence of a withdrawal of the application by the employee, is obliged to issue an appropriate order within the period established by law. The employer remains obligated to pay for temporary disability.

Controversial situations

Even with such a peaceful dismissal as at his own request, the employee may face various problems.

Table 2. Controversial situations and their solutions when dismissing of one’s own free will

Don’t be afraid to resolve issues with your employer in court, because provided that he is really at fault, the law will be on your side. In addition, management will also be responsible for paying the legal costs you incur. Subsequently, you will also receive monetary compensation for the inconvenience caused by the management of the organization

Sample letter of resignation at own request

Payments upon dismissal at one's own request

On the last working day, the employer is obliged to make a final settlement with the employee. Such payments include arrears of wages, taking into account the days actually worked in the current month; payments for unused vacation; other payments provided for in the employment contract or local regulations. If the employee did not work on the day of dismissal, the employer must make payment the next day after submitting the request for payment.

If a dispute arises between the parties regarding the amount of payments made, then the employer is obliged to pay the amount not disputed by him .

A delay in statutory payments threatens the employer with unpleasant consequences in the form of a claim for the collection of arrears of wages, monetary compensation for delayed payments, moral damages, and legal expenses. Inspections by regulatory authorities may also be initiated.

Labor disputes are very common in the practice of our center’s lawyers. Almost every day people contact us whose labor rights have been violated. Many of our lawyers specialize in this area of ​​rights protection; accordingly, they have very impressive experience in both the pre-trial settlement of labor disputes and the successful management of cases of this category in courts of all instances.

By contacting us you will receive professional assistance, be it legal advice or comprehensive legal support.

Is it necessary to work for two weeks?

Yes.

But this is again a general rule. According to Part 2 of Article 80 of the Labor Code of the Russian Federation, it is possible to separate before the expiration of a two-week period by mutual agreement of the parties. If the manager does not mind, dismissal can be formalized even on the day the application is submitted.

The law also specifies cases when the employer is obliged to terminate the contract within the period specified in the application. For example:

• Enrolling an employee in an educational institution.
• Retirement.
• Violation of labor legislation by the employer (it must be officially recorded by the labor inspectorate, court or labor dispute commission).

Documents issued upon removal from office

In order to resign, an employee only needs to provide a letter of resignation. The employer, upon receiving an application for dismissal of an employee, is obliged to provide him with the following documents:

• citizen’s work book - it contains a record of dismissal, article number and date;
• a copy of the dismissal order;
• the employee's wages for the last days worked and monetary compensation for unused vacations.

An employee has the right to ask the employer to provide him with other documents and their photocopies, such as orders related to the employment of an employee, his transfer and dismissal, a certificate of wages, insurance contributions and other certificates related to the employee’s career in this organization.

After terminating the employment agreement with his employee, the employer is obliged to provide him with the following:

Dismissal at the initiative of the employee

Release from the workplace on this basis is not carried out immediately. First, a document is drawn up stating that the employee did not show up at work, and search activities begin. Calls are made to relatives and friends, notifications are sent to the addresses indicated in the personal file.

If the above actions were unsuccessful, another person is appointed to the position of the missing employee. The employer draws up an employment agreement with the replacement employee. Such an agreement terminates when the main employee appears at the workplace.

Only a court can declare a person missing. Only in this case the agreement with him is terminated. An entry into the labor record or the corresponding order can be issued several months or even years after the date of disappearance.

The relatives of the missing person receive the payslip and wages. To do this, they just need to provide documents that confirm their relationship with this person.

If an employee has expressed an independent desire to resign, and you do not see any obstacles to this, then your course of action is as follows.

Step 1.

You must receive a statement from the employee indicating their desire to resign. It must indicate the reasons for dismissal, usually expressed in the phrase “at one's own request” and the date of the desired dismissal.

Having received the application, you register it as an incoming document, review it and put down your resolution with the decision. Your decision may be to satisfy the employee’s desire to dismiss on the date indicated in the application - this is the first option. If for some reason you do not agree with the specified date, then you have the right to dismiss him with two weeks of work, which allows you to do the provisions of Article 80 of the Labor Code of the Russian Federation.

Step 2.

An order is issued to dismiss the employee, with which you must familiarize him with signature and he must indicate the date of familiarization. In the order, you must refer to the fact that the basis for dismissal is paragraph 3 of Article 77 of the Labor Code of the Russian Federation - the employee’s own desire.

Step 3.

The next stage is making an entry in the work book about the dismissal. For the reason under consideration, the entry will be as follows: dismissed at his own request on the basis of clause 3 of Art. 77 Labor Code of the Russian Federation. Next, enter the position of the person who made the entry in the work record, put his signature and a transcript of the signature. The labor record entered is confirmed by the seal of the organization or individual entrepreneur (if he has one).

Step 4.

You must give the employee his work permit. In this case, you absolutely need him to sign in the book of movement of work books and inserts to them that he received the work record.

IMPORTANT: If an employee deliberately avoids receiving a work permit, you must send a written notice to him at his registration or actual residence address. In this case, in accordance with Article 62 of the Labor Code of the Russian Federation, you will relieve yourself of liability. And responsibility for the untimely issuance of a work permit can be expressed in the former employee going to court, with claims for not issuing a work permit to him.

Step 5.

On the day of dismissal of an employee, final payment must be made to him. He is entitled to receive the amounts of earnings accrued on the day of dismissal, compensation for unused vacation (if any). A full calculation of remuneration upon dismissal is drawn up in free form.

Step 6.

If the dismissed employee requests, you must provide him with other documents, or copies of them, directly related to the work. Most often, a request is received for the issuance of a certificate of form 2-NDFL, indicating the income received and tax withholdings made from them.