Dismissal on your own if. We formalize the dismissal of an employee during vacation in accordance with all the rules. Dismissal based on probationary period

Issues discussed in the material:

What are the dismissal options?
Why is dismissal by agreement - best option for both sides
What the law says about dismissal of employees of pre-retirement age

Firing someone from the staff is a natural part of the work of HR employees. Sometimes specialists leave the company of their own free will, and sometimes the initiative comes from the manager. The procedure has its own characteristics depending on what exactly caused the dismissal. It must be carried out according to legislatively established rules that protect both the rights of employees and the rights of organizations. In this article, you will learn how to properly fire an employee so that there are no claims against the company later.

Options for dismissing an employee

According to Labor Code, dismissal can occur for three reasons:

at the request of the employee;
at the initiative of the employer;
by mutual agreement.

Most often, termination of an employment contract occurs at the request of the employee himself. Under such circumstances, it is usually not difficult to fire him. The only difficulty that may arise during the procedure is issues related to mandatory “working out”.

The situation is somewhat more complicated when it is necessary to dismiss an employee at the initiative of the employer. Separate rules exist if an organization is downsizing or is being liquidated. In this situation, it is important that all interested parties are properly notified of the upcoming changes within the legally established period.

But according to the Labor Code of the Russian Federation, the manager’s desire alone cannot be a reason to terminate labor relations. That is, the employer does not have the right to fire a person without a good reason. There is a strictly limited list of circumstances related to violation of labor discipline in which dismissal can occur at the initiative of the organization. And these violations, among other things, must be correctly recorded.

It is also possible to dismiss an employee by agreement of the parties. This is a kind of compromise in which the employer and employee agree to terminate cooperation under certain conditions. This version of the procedure allows you to dismiss an employee without additional risks and difficulties, offering him monetary compensation for leaving.

How to properly fire an employee at your own request

The easiest way for both parties is this: the employee writes a resignation letter at will, and the manager signs it. The text of the document looks something like this: “I ask you to dismiss me from the position of accountant at your own request on such and such a date.” At the end you must put a date and signature.

issue a dismissal order, indicating the reason and date of termination of the employment contract;
put a mark in the work book indicating the order number;
settle accounts with the dismissed person: pay wages, bonuses, etc.;
issue work book on hands;
prepare the documents that a person will need for further employment (certificate 2-NDFL, certificate of income and a number of others upon request);
inform the funds that receive contributions from the organization about the termination of the employment relationship.

The company may not release the employee on the same day, but assign him time off. Its maximum duration is two weeks from the date of application. During this period, the employee will continue to perform his usual duties, while the organization is looking for a replacement. At the same time, in his application, the dismissed person must note that he does not mind working for the specified period.

Before signing the application, do not forget to give the employee a bypass sheet. This document contains a list of equipment that was issued to him for work. The dismissed person must return all property of the organization, and pay compensation for lost or damaged valuables.

If an employee asks to be fired, the employer is obliged to do so. It does not matter what contract was concluded between them - fixed-term or indefinite. In any case, the application for resignation must be considered within the legally defined period.

There are several cases when an employee can leave his position without working:

retirement;
enrollment in an educational institution;
changing of the living place;
transfer of wife/husband to work in another region or country;
violation of the employment contract committed by the employer.

The circumstances listed above make it possible to leave the organization on the same day when the application is written. However, for this it is necessary to provide a supporting document: a certificate from the university, an order for the transfer of a spouse, etc. If there are no valid reasons for immediate dismissal, work can be avoided only with the consent of the employer.

It is possible to dismiss an employee without two weeks of service even if he wrote a letter of resignation while on vacation, when there were more than 14 days left before returning to work. Then, on the first day after the end of the vacation, the employment contract will be terminated.

There are three categories of workers who, instead of the usual 14, must work only 3 days. These are specialists on a probationary period, with a fixed-term employment contract for 2 months or less, as well as seasonal workers.

Regardless of the reason for the employee’s departure, personnel documents will always indicate Art. 77 Labor Code. On the day of dismissal, the employee must read the order and receive his work book. Until this point, the person has the opportunity to withdraw the application. However, it will not be possible to reverse the process if another specialist has already been invited to the position.

How to properly fire an employee when reducing staff or liquidating a company

Many managers one day wonder how to properly fire an employee when reducing the number of employees or staff. First you need to decide what kind of procedure you plan to carry out. Although the Labor Code does not provide a detailed explanation of these concepts, the difference between them can be expressed as follows: when you fire some employees occupying the same position, this is a reduction in numbers. If, along with the dismissal of personnel, the position itself is abolished, then we can talk about staff reduction.

The legislation does not indicate specific reasons when a manager has the right to reduce staff. This is usually explained by the occurrence of special economic conditions. But if the dismissed employee goes to court, experts will check whether the reduction was really justified.

The following reasons can be considered quite compelling:

inability to pay in full wages with the current number of personnel;

the presence in the structure of the enterprise of positions that are no longer necessary;

a change in the general principles of the organization’s functioning, as a result of which there is no longer a need to have certain specialists on staff.

There are also several conditions that the employer must comply with if he wants to dismiss employees due to reduction:

It is necessary to act correctly at all stages of the reduction procedure. The slightest violation of legal norms can lead to it being declared illegal.

Changing the number of employees or the list of positions must be economically justified.

It is important to promptly inform the employment service about your dismissal. If this is not done, in the future the court may oblige the organization to pay laid-off employees for forced absences.

Dismissal of personnel is possible only after you remove the position being eliminated from the staffing table. You can either change the current schedule or develop a new one. The updated version comes into force upon issuance of the relevant order. It must explain the reason for the reduction and the expected time frame for completing the procedure. All employees of the organization should familiarize themselves with this document.

The procedure for reducing numbers or staff is no different. It looks like this:

To begin with, a reduction order is issued. The document is written in any form. Its content is a list of positions subject to reduction and a listing of persons responsible for the dismissal of employees.
Then updated staffing table. This document reflects the number of personnel in the organization, a list of positions, rates and salaries.
After this, an order is issued according to which the new schedule is put into effect. This is necessary mainly to inform all employees of the enterprise about the changes taking place.
Preparations for dismissal begin. It is necessary to collect the personal files of the candidates and convene a special commission that will determine whether any of them have a preferential right to retain their job. Following the meeting, a protocol is filled out in which it is necessary to indicate which of the employees cannot be fired for one reason or another.
A notification is issued about which of the staff is being laid off. Everyone mentioned in this document must read it and sign it.
If someone decides to leave their position before the deadline for dismissal, they must write a consent for early termination of the employment contract and give it to the employer.
After this, it is necessary to notify the employment service and the trade union about layoffs.
Provided that the company has this moment There is vacancies, laid-off employees may be offered transfer to other positions.
When all disputes are resolved, an order is issued in form No. T-8 to terminate the employment relationship.
Before issuing work books to the dismissed persons, a note is made in them with reference to paragraph 2 of part 1 of Art. 81 Labor Code of the Russian Federation.
Employees are paid all the money due to them.

Salary for the last month worked and compensation for unused vacation. These payments must be made before the employee is terminated.
Severance pay. For the first time, it is paid along with the main payment upon dismissal. A person also has the right to receive this benefit for three months after leaving the organization if he remains unemployed.
Retrenchment benefits. If three months after the layoff the employee is not employed, then from the fourth month he will receive these payments. Only those who are registered with the Employment Service are entitled to them.

The reduction order must be issued at least two months before the new staffing table comes into effect. It must indicate all persons who are proposed to be dismissed. If there is a seasonal worker among those being laid off, he must be notified a week before the appointed date. As for employees working under a contract with a duration of less than two months, they are required by law to be informed of dismissal three days in advance.

Not everyone can be fired due to redundancy. There are several groups of citizens who, in any case, retain their workplace:

pregnant women;
mothers of minor children with disabilities;
mothers of children under three years of age;
parents raising children under 14 years of age alone;
minor employees;
specialists on vacation;
temporarily disabled citizens.

Downsizing and related layoffs are an unpleasant situation, but they can happen in any organization. Sometimes the difficult economic situation in the country and problems within the company force managers to take extreme measures. In such cases, the employer must strictly comply with the norms of the Labor Code so that his actions are not considered illegal. Employees, in turn, need to know own rights and protect them if any violations occur.

In order to properly dismiss employees when closing an LLC or any other organization, you must act according to the same principle. The only difference is that in this case, all employees of the company lose their jobs, regardless of their position, skill level and social status. Pregnant women, single mothers and all those who have benefits during layoffs also become unemployed when the enterprise is liquidated. It is also not possible to transfer any of them to another position, since the company ceases to exist.

Types of employees in a company

Mikhail Dashkiev, co-founder of Business Youth:

“To understand what is happening in a company, you need to determine the types of employees. What kind of things do they generally exist in nature and according to what criteria are they divided? All employees can be divided into 4 types:

Zombie. They perform a lot of actions, ask a lot of questions, create a lot of buzz and movement around themselves. Such people usually endear themselves to their colleagues. But the result from such activity is zero. It is difficult and a pity to fire such people. The team will speak for him. And he himself will resist. Drinks a lot of company's blood. And if such an employee is fired incorrectly, the entire team will rear up.

Bad performer. These are saboteurs. It is not enough for a bad performer to be given a task - he needs to be constantly monitored, motivated, checked on and completed. It’s easier to do the task yourself: faster, easier and cheaper. Which, alas, is what you are used to doing.

Good performer. Active employees who quickly and accurately carry out assignments. They can safely delegate tasks of varying complexity. But if you are distracted from handing out instructions, such an employee cannot sit still. He will tease you and ask for tasks. If he is not given a job, he will quit and go where there is work.

Winner. Winners not only perform their tasks well. They also find problem areas themselves, prepare an action plan and go to improve them. You just need to give the go-ahead. Or remain silent - the winner himself is able to adequately assess what he can do without approval and what not.

To understand who is who in your organization, make a sign and classify each employee according to these 4 types. You can even type by feeling, just by looking closely at who works how. A bad performer must be forced. He constantly makes excuses. He will find 100 reasons not to complete the task.

A good performer quickly takes on tasks and gets them done. And the winner himself improves something and comes with specific proposals. Then he does everything himself. Highlight winners in green, good performers in yellow, bad performers and zombies in red. "Reds" need to be replaced as planned."

How to properly fire an employee under an article

Almost every organization has employees who from time to time violate labor discipline: they are late, deliver projects after the deadline, etc. Trying to deal with such behavior, the manager can make comments and reprimands over and over again. But if it is not possible to come to an “amicable” agreement, the question arises of dismissing the negligent employee and hiring someone more serious and responsible in his place.

Dismissal under this article is possible if an employee commits actions prohibited by an employment contract, job description, order of the manager and other regulations of the enterprise or the labor legislation of the country. You can also fire an employee if he does not perform the tasks assigned to him according to these documents.

According to paragraph 35 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation" the following is recognized as a violation of labor discipline:

Absence of a person from the workplace (without a good reason).
Refusal to perform one's professional duties, including when labor standards change (in the absence of a valid reason). By signing an agreement with the employer, the employee undertakes to perform the functions required by his position, as well as to comply with the work rules and daily routine adopted by the organization.
Refusal to undergo a medical examination or vocational training, as well as from passing exams on labor protection, safety precautions and rules for using various devices and mechanisms. Such behavior is considered a violation if, without taking these measures, one cannot be allowed to work and if at that time the employee did not have a valid reason for refusal.

Of course, this list includes only the main types of violations. Also, the reason for dismissal may be, for example, alcohol abuse, theft or damage to the organization’s property, improper performance of professional duties and inconsistency with the level of qualifications for the position held. If such a situation occurs, the employer has the right to dismiss the employee, but he must collect irrefutable evidence of his accusations. This is important because the responsibility to ensure the legality of this procedure lies solely on the shoulders of the head of the organization. So, what does it take to properly fire an employee for absenteeism, theft, or other violation?

Grounds

You can proceed with dismissal only when you have documented grounds. In addition, it is necessary to strictly follow legislative norms, which regulate the actions of the manager at each stage of the procedure. If at any stage the employer violates the established rules, the employee can subsequently appeal his decision, which will lead to serious problems for the entire company.

Documented facts

If the reason for dismissal is the employee’s misconduct, confirmation of this fact cannot be avoided. For example, in order to fire a person for drunkenness, it is necessary to certify alcohol intoxication V work time, and not just the fact of drinking alcohol. In order to properly dismiss an employee for theft, you need to document the offense and obtain a court order or verdict. Only then does it become possible to relieve the specialist from his position.

This condition must be taken into account if it is intended to dismiss a person for inadequacy of the position held or unsatisfactory performance of professional duties. When any violation on the part of an employee is recorded, such as absenteeism or tardiness, the manager must receive a written explanation from him. If the reasons for the misconduct are considered unjustified, within a month the employer may apply to the employee disciplinary action. However, you can only be punished once for one violation. That is, if an employee has received a reprimand for violating the rules, then it is no longer possible to fire him for this.

Introducing the employee to the solution

The essence of this stage is to inform the employee about the manager’s decision and give him the opportunity to familiarize himself with the order. The document must indicate the following information: reason for dismissal, grounds and date. The order will be considered valid only if it bears the signature of the person being dismissed. If a person refuses to sign, you need to invite witnesses and draw up an appropriate act.

Explanatory note from an employee

The employer must give the employee an opportunity to justify his inappropriate behavior. Of course, the employee can refuse and simply not write an explanatory note. But if within two days the employer does not receive information about the reasons for the misconduct, then he has the right to apply disciplinary action.

Signed order

According to the law, it is necessary to issue two acts: the first confirms that a penalty in the form of dismissal has been imposed on the employee, and the second serves as the basis for severing the employment relationship. In most cases, the second type is sufficient.

Several regulatory documents must be attached to the order, including:

details of acts and reports;
explanatory (if any);
other papers confirming the fact of serious misconduct that served as grounds for dismissal.

Further employment of a specialist dismissed under the article may be associated with some difficulties. The degree of these difficulties depends mainly on which particular article is indicated in the work book.

Dismissal of an employee through an agreement

The procedure for dismissal by agreement of the parties is very simple:

If the initiative comes from an employee, he must write a letter of resignation.
If the employer is interested in dismissal, he sends a written proposal to the employee.

Next, you need to discuss the terms of termination of the contract and sign a bilateral agreement. After this, the personnel department issues a corresponding order and makes a note in the work book, indicating clause 1 of Art. as the basis for dismissal. 77 Labor Code of the Russian Federation.

This option is optimal for both parties in any situation. It is important for the employer that, with the consent of the employee, he can be fired on any day, even during vacation or sick leave. In addition, if the document has already been signed, it will no longer be possible to change your mind and refuse dismissal unilaterally. As for the employee, in this situation he has the right to demand material compensation for unjustified dismissal.

How to properly fire an employee during a probationary period

To ensure the employee’s ability to perform the tasks assigned to him, a probationary period clause is sometimes included in the employment contract. If it ends and the employer is satisfied with everything, then the person simply continues to work in his position. However, if the newcomer’s competencies do not meet the organization’s requirements, he may be dismissed under the appropriate article.

How to properly fire an employee who has not completed the probationary period? According to Part 2 of Art. 71 of the Labor Code of the Russian Federation, in this case the employer is not obliged to inform the trade union or pay severance pay. But there are a number of other statutory requirements that must be met.

First, the employment relationship must be terminated before the probationary period ends. Secondly, at least three days before dismissal, the employee must be given a written warning that the contract will be terminated. This document must indicate the reasons why the specialist is denied employment on a permanent basis.

When a manager decides to fire an employee who has failed the test, he issues a dismissal order. After reviewing this decision, the employee puts his signature. On his last working day, he receives a work book and other necessary documents, as well as wages and compensation for unused vacation.

There is also a popular question about how to correctly indicate the reason for dismissal in the work book if the specialist has not completed the probationary period. In this case, the mark provides a reference to Part 1 of Art. 71 Labor Code of the Russian Federation. However, it is also necessary to clarify that the person was employed by the company on a probationary period, but did not pass the test. That is, the entry in the work book should look like this: “The employment contract was terminated due to unsatisfactory test results, part one of Article 71 of the Labor Code of the Russian Federation.”

By the way, dismissal due to the identification of a shortage professional competencies during the probationary period, it can also be appealed through the court.

Remember that you cannot dismiss a person undergoing testing while he is on sick leave or on vacation.

How to properly fire an employee under a fixed-term employment contract

When hiring a new employee, the company enters into an employment contract with him. It states what rights and responsibilities both parties have, under what conditions their cooperation will take place and how long it will last. Some contracts do not have a specific duration, while others are signed for a limited period of time - up to five years. If a longer period is specified, the contract is considered unlimited.

You can fire a person regardless of the type of contract concluded, but the procedures in these cases are slightly different.

One of the grounds for terminating a fixed-term contract may be the end of its validity period. But it is possible to fire an employee for this reason only if the established deadlines are met. Entry in the work book in in this case will contain a link to clause 2 of Art. 77 Labor Code of the Russian Federation.

Three days before dismissal, the manager must send the employee a written warning. It is also important to record the fact that the employee was familiar with the employer’s decision. This does not need to be done only in the case where the conditions for termination of cooperation were discussed earlier, since the dismissed person performed the duties of a temporarily absent specialist.

If a warning was not issued, then it will no longer be possible to fire a person due to the expiration of the contract. But in this case, other conditions provided by law may be grounds for dismissal.

A notice of management’s decision to relieve a fixed-term employee from his position is written in any form, indicating the date and reason for dismissal. If the employee refuses to confirm the fact of familiarization with the document, a special report is drawn up about this.

You can terminate the employment relationship with an employee hired for a certain period of time in the following cases:

If the purpose of cooperation was to fulfill specific task. The fact of completion of the work is confirmed by the relevant act, and the very next day after its issuance is considered the day of expiration of the contract.
If a person is hired for this position temporarily while the main specialist is absent. Then the contract ends on the day the former employee leaves.
If the employee was employed to perform seasonal work. In this case, the contract specifies a certain period after which the cooperation is considered completed. However, the employer cannot establish the lists and terms of work that are considered seasonal: they are indicated in official documents of the Government of the Russian Federation.

Each of these cases implies that at the end of the employment relationship, the employee receives back his work book and other necessary documents, as well as all payments due to him.

As for payments, an employee has the right to wages for the period worked, compensation for unused vacation, as well as other payments if they are provided for by the organization’s local documents (for example, severance pay). If the contract period was less than two months, then compensation for vacation is calculated using the formula: 2 days for each month worked. The above conditions must be met regardless of the reason for which the employment contract was terminated.

In some cases, cooperation may be terminated before the end of the contract. The reason may be the provisions of Art. 77 of the Labor Code of the Russian Federation, mutual consent of the employer and employee, the desire of the manager, as well as other circumstances beyond the control of both parties.

How to properly fire an employee on a weekend, a holiday, and at the end of the year

The law does not have specific rules regarding how to properly dismiss an employee on a non-working day. At the same time, the law does not prohibit dismissing workers on weekends and holidays. And since there are no clear instructions, each employer acts at his own discretion, focusing on the main provisions of the Labor Code of the Russian Federation and examples from judicial practice.

What to do if the day of dismissal falls on a weekend? In fact, this happens quite often, since the initiator of termination of cooperation, be it an employee or an employer, must indicate a specific date of dismissal in the documents. In this case, it is also necessary to take into account the warning periods established by law.

According to the general rules of the Labor Code of the Russian Federation, on the last working day the dismissed person must receive a work book, other documents and wages. But if the dismissal is scheduled for a weekend, this is not possible. In this case, some managers postpone the dismissal date to the next working day, while others - to the previous one.

In practice, the first option is more popular. It is implemented like this: let’s say an employee writes a letter of resignation and his two-week work period ends on Saturday. Five days in the company work week, and it is impossible to let the employee go on this day. Then the dismissal order is issued on Monday, after which the employee is given a work book with the corresponding entry and a full payment is made.

This solution is considered optimal, since the provisions of the Labor Code of the Russian Federation do not allow all events related to dismissal to be carried out on a non-working day. The correctness of this behavior of employers is confirmed by some court decisions(see the ruling of the Tver Regional Court in case No. 33-4631 dated November 15, 2011, the appeal ruling of the Khabarovsk Regional Court in case No. 33-3001 dated May 16, 2012).

However, those who prefer to fire an employee earlier rather than later than the expected date are also right in their own way. After all, if the termination of the contract occurs later than indicated in the warning or in the resignation letter, the employee is obliged to appear at the workplace after the end of the legally established period for the procedure.

In addition, the time that the specialist spends on receiving documents and money from the previous employer, he theoretically could have spent already in new organization. In this case, the postponement of the dismissal date may be regarded as a delay in the issuance of the work book. It is especially difficult to determine a suitable date when non-working days come one after another, for example when postponing public holidays. If you move the settlement day forward, you can lose a lot of time.

To avoid such situations and subsequent claims from the employee, some managers prepare all the necessary documents in advance. That is, if the dismissal falls on a non-working Saturday, then the order is signed on Friday. But since other documents indicate a longer warning period, the order must also indicate the corresponding date for termination of cooperation, which will not coincide with the actual date of its issuance.

In this case, the person receives all the necessary documents and payments due to him on the last working day. Accordingly, on next week he does not need to appear at the company to resolve any issues and from Monday he can go about his business.

The most important thing is that this position does not contradict the law in any way. Yes and in real life you can find examples confirming its right to exist (see the appeal ruling of the Moscow City Court in case No. 11-21106/12 of November 20, 2012). However, when deciding to terminate an employment contract early, the head of the organization takes a certain risk. In particular, the dismissed person can withdraw his resignation letter, taking advantage of the guarantee that Art. 80 Labor Code of the Russian Federation. This can be done on weekends and holidays, since Part 3 of Art. 84.1 of the Labor Code of the Russian Federation clearly states that the employee’s job is retained during these periods. In such a situation, the employer has no choice but to cancel the order, correct the entry in the work book and take the specialist back to his previous position.

Sometimes, before dismissal, employees deliberately select the date for writing the application so that the notice period coincides, for example, with New Year holidays. The fact is that labor legislation does not indicate how many working days and days off a two-week work period should contain. So, in order to correctly dismiss an employee who announced his resignation on December 16, the order must be issued on December 30.

It may also be that the employer himself wants to fire someone at the end of the year. It is unlikely that an employee will be happy with such a “gift” for New Year, but there are no restrictions related to dismissal during this period. The procedure for terminating a contract during the holiday period follows a standard procedure.

How to properly fire an employee of pre-retirement age

Was published last year the federal law No. 352, prohibiting the dismissal of pre-retirement workers. According to labor legislation, such people are considered to be people who have less than five years left before their old age pension. A new article has also appeared in the Criminal Code of the Russian Federation - Art. 144.1. It provides for punishment for those employers who, without good reason, refused to hire or fired a specialist of pre-retirement age. These innovations came into force on October 14, 2018.

Now it is possible to fire or not hire a pre-retirement employee only if there is a serious basis for this decision. If it turns out that there was no such basis, the manager will receive a fine of up to 200 thousand rubles or in the amount of his income for a period of up to 18 months. The fine can also be replaced by compulsory work for up to 360 hours.

The Labor Code does not contain information about special conditions related to the reasons for dismissal of an employee of pre-retirement age. Accordingly, compelling reasons for dismissal from office in this case will be standard:

termination of the organization's existence;
economically justified staff reduction;
the employee’s inadequacy for the position held;
change of owner (relevant for the dismissal of the manager, his deputy and chief accountant);
failure to fulfill professional duties without a valid reason;
gross violations of working conditions;
committing a crime or immoral act;
making a decision that resulted in damage to the organization’s property;
concluding an employment contract on the basis of forged documents.

The only thing that can prevent an employer from dismissing a pre-retirement employee for one reason or another is a collective agreement, which contains a clause prohibiting such a decision. However, such an agreement is not concluded in every organization and such a condition is not always included in it.

There are no separate rules regarding termination of employment with an employee of pre-retirement age. All stages of the procedure are carried out according to a standard scheme.

How to properly fire an employee due to the death of the latter

It happens that an employment contract has to be terminated for reasons beyond the control of the organization or employee. One of these reasons is the death of an employee. According to the law, dismissal in any case is carried out by issuing an appropriate order. The basis for its registration in this case is the death certificate of the employee.

The order can be signed on the same day that the employer was provided with this document. As for the date of dismissal, the day of death is indicated here, which the manager can find in the certificate.

Art. 84.1 of the Labor Code of the Russian Federation states that the order must contain two signatures: the employer and the employee. The question arises of how to properly fire a deceased employee who can no longer sign this signature. It can be assumed that a relative must sign for the deceased. However, the manager is not obliged to familiarize anyone other than the specialist with the order. Accordingly, in this case there will be only one signature in the document.

As for the work book, the following entry is made in it: “The employment contract was terminated due to the death of the employee, paragraph 6 of part 1 of Article 83 of the Labor Code of the Russian Federation.” A similar note is made on the personal card of the deceased (form T-2, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1).

What should an employer do with the documents of a deceased employee? According to the law, the work book can be taken by the husband or wife of the employee, as well as one of his relatives. In this case, the applicant must provide proof of connection with the deceased, for example, a birth or marriage certificate.

Documents are issued to a spouse or relative in person, against a signature or upon application. They can also be sent by mail in a valuable letter with a description of the contents and a receipt. If no one applies for the work book of a deceased employee, the employer must keep it for 75 years.

As for salary, compensation for vacation and other payments due upon dismissal, according to Art. 141 of the Labor Code of the Russian Federation, they can be received by family members of the employee or persons who were in his support.

By the way, according to the Family Code, family members are considered:

spouses;
parents/adoptive parents;
children, including adopted children.

IN Civil Code it is also clarified that relatives can contact the organization where the deceased was employed to receive a payment within four months. The employer, in turn, must transfer the entire amount to them within a week after submission necessary documents. These include:

application for payment;
applicant's passport;
document confirming relationship.

If money was withdrawn from the account, but the applicant does not come to collect it within five days, the funds must be deposited.

Payments that the deceased should have received are not subject to taxes. Neither personal income tax nor insurance premiums are withheld from them. That is, relatives must receive the entire amount due to the person.

Dismissal at the initiative of an employee is one of the most common personnel procedures. We'll tell you how to fill it out correctly, what rules to follow, and where to get samples of required documents.

From the article you will learn:

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How voluntary dismissal occurs: Article 80 of the Labor Code of the Russian Federation

Every employee has the right to leave work at his own request. You can terminate the employment relationship under this scheme at any time by notifying the company management in writing in advance (Part 1 of Article 80 of the Labor Code of the Russian Federation).

The procedure for dismissal at will

Submitting and registering an application.

You can write a letter of resignation under an employment contract at your own request in free form; the law does not establish any special requirements in this regard. When registering a document, make sure that it contains the required details:

last name, first name, patronymic and position of the applicant;
date of proposed dismissal;
employer details.

Please enter the exact date of registration so that calculate the working period, you need to know when the application was received by the HR department.

Sample application at your own request

★ In the “Personnel System” you will find a ready-made sample letter of resignation by agreement of the parties

Workout.

At the request of an employee, he can be fired without working off, day after day. The employer can, but is not obligated to, meet halfway, except in cases where continuation of work for objective reasons is impossible (Part 3 of Article 80 of the Labor Code of the Russian Federation).

Drawing up a dismissal order.

Like an order for dismissal by agreement of the parties, a sample order for dismissal at the request of the employee is drawn up on a unified (form T-8) or locally developed form. In the column “Grounds for dismissal” we write “at the initiative of the employee” (if necessary, specify the reason - for example, “in connection with retirement”). In the column we refer to the corresponding paragraph of Article 77 of the Labor Code of the Russian Federation. Below we indicate the details of the basis document, in this case it is the application submitted by the employee.

Order on termination of an employment contract (dismissal) in connection with the dismissal of an employee at his own request

Registration of a work book and personal card.

Entries in column III of the work book and section XI T-2 forms must comply with the wording of the order. Do not forget to include a link to the relevant norm of the Labor Code of the Russian Federation; in column 4 of the work book, indicate the details of the order to terminate the employment contract.

Final settlement.

Done on the last working day. Give the dismissed person a work book, a certificate of the amount of earnings and statements related to work, pay wages and all due compensation.

Attention! The procedure for dismissing an employee at his own request does not provide for the issuance of severance pay, unless otherwise stated in the employment or collective agreement.

Advice from the editor. If the chief accountant of an organization (usually the financially responsible person) submits a resignation letter by agreement of the parties or at his own request, do not forget to take an inventory before terminating the employment contract. Check the safety Money in cash, accounts payable and accounts receivable enterprises, settlements with founders, counterparties and funds. From the material in the magazine “Personnel Affairs” you will learn:

The right to withdraw an application remains until the end of the warning period. Even if the deadline expires on a weekend, the employee may change his mind at the last moment. An expert from Sistema Personnel will tell you how this happens in practice

Dismiss an employee exactly within the period specified in the application if he cannot continue working for the following reasons:

enrollment in a university or other educational organization;
poor health;
urgent move to another city or region;
violations of labor legislation by the employer;
pregnancy or having small children;
caring for a disabled child or sick family member;
retirement and other extenuating circumstances.

It is necessary not only to notify the employer of the presence of such reasons, but also to confirm them with documents: attach to the application a medical report, a certificate of discharge from the place of residence, documents on the transfer of the second spouse to work abroad or to another region, a certificate of enrollment in a university, etc. .d.

General terms of dismissal at will

By general rule, dismissal at one’s own request is formalized after the expiration of a two-week period (Part 1 of Article 80 of the Labor Code). Start counting the day after registration of the application. The warning period ends in exactly 14 calendar days. They take into account not only working days, but also weekends, holidays, as well as time spent on vacation or sick leave. A convenient online service from Sistema Personnel will help you accurately determine the date of dismissal

	Notice period	Norm of the Labor Code of the Russian Federation
Workers on probation		Part 1 Art. 71 TK
Heads of organizations	No later than 1 month
Seasonal staff	No later than 3 calendar days	Part 1 Art. 296 TK
Workers, those who have entered into a fixed-term contract for up to 2 months	No later than 3 calendar days	Part 1 Art. 292 TK
Coaches who have entered into a contract for a period of more than 4 months	No later than 1 month	Part 1 Art. 348.12 TK
Athletes who have entered into a contract for a period of more than 4 months	No later than 1 month	Part 1 Art. 348.12 TK

Whichrules for dismissal at willmust not be violated

There are 4 basic rules that the HR manager cannot break when dismissing an employee at his own request.

Rule 1. Do not fire an employee at a verbal request: firstly, this is a violation of procedure, and secondly, in the event judicial trial It will be extremely difficult to prove the legality of the dismissal.

Rule 2. When you make an entry about the dismissal of an employee at his own request in the work book, refer to paragraph 3 of part 1 of Article 77 of the Labor Code of the Russian Federation, but not to Article 80 of the Labor Code of the Russian Federation - unfortunately, many personnel officers make this mistake.

Rule 3. Do not refuse to accept and register an application if the employee did not personally bring it to the HR department, but sent it by telegram or registered mail. The legislator reserves this right for employees (see letter of Rostrud No. 1551-6 dated September 5, 2006).

Rule 4. Do not delay issuing your work book. The employee will not be able to get another job and will be able to rightfully demand compensation for material damage - earnings for the entire time the document was delayed (Article 234 of the Labor Code of the Russian Federation).

In what cases might a manager need to “rudely” fire his employee? These may be reasons such as:

repeated, objective, gross violations of labor discipline or company job descriptions;
a person’s obvious inadequacy for the position he holds due to his lack of qualifications;
violation of general ethical rules of behavior.

In any case, the employer must be aware that dismissal on the initiative of only one party (in this case, his own) is potentially conflict situation. Therefore, you should acquire the strongest possible arguments and legal grounds so that in the event of active legal opposition from the dismissed employee, you can count on a victorious outcome as a result of legal proceedings.

And there is no doubt that employees interested in their own stable position will be extremely uninterested in changing their status to “unemployed” and therefore will challenge (referring to the Labor Code norms) both the reasons for dismissal and such an opportunity itself.

Often, employees who come into conflict with the employer are subject to repression in the form of dismissal (for a variety of reasons, not always even related to activity at work). Law enforcement practice in this case shows that civil courts of the Russian Federation, when analyzing the nuances of such cases, tend to take the side of those being dismissed. In this case, the latter either retain their position and place in the company, or are awarded financial compensation (at the discretion of the judge).

So note to managers : it is extremely unreasonable to fire a subordinate for a rude statement addressed to you at a corporate party - the court will definitely side with the employee.

Formally possible reasons for dismissal without the employee’s consent

In labor legislation, there are officially prescribed methods for dismissing an employee on the initiative of only one of the parties. Here they are:

1. Significant change in the terms of the employment agreement with the employee

The situation at the enterprise does not always develop well. Sometimes, in order to keep a business afloat, it is necessary to implement anti-crisis measures. In particular, they mean both massive staff reductions and individual dismissals of employees who cannot cope or are ineffective. And besides, the agenda may include not only layoffs, but also:

reduction in wage levels;
changing the work week schedule;
change in social package.

In this case, if a reorganization is planned, the employee must receive a warning from management 2 calendar months in advance about the changes planned to be made, which must also subsequently be included in his current employment agreement. If the employee does not agree with such changes, then the employment contract (agreement) will be legally considered terminated.

2. Achieving a voluntary agreement to stop working at the enterprise

From the point of view of the state apparatus (judicial, as well as authorities regulating labor relations), this is the most preferable option for resolving disputes between employers and dismissed employees.

The presence of the employee’s voluntary written consent to terminate his employment with the company automatically limits (that is, fixes) the obligations of the employer himself within the framework of the conditions on which consensus will be reached in the specified agreement, and excludes the possibility of further litigation.

3. Dismissal due to ongoing job reduction

This is not the best format for ending cooperation with employees. Firstly, it also requires prior notice (at least 2 months before dismissal) of the planned reduction. And secondly, the state apparatus here creates numerous obstacles in the way of the employer (for example, it obliges the latter to make additional payments to the laid-off employee in the amount of no less than one salary for the next month, and sometimes for 2 or 3 months) .

The state actively counters the practice of spontaneous reduction in the number of jobs. In this regard, the employer is asked to think about whether the problem of dismissal will solve the difficulties with the lack of liquidity at the enterprise. It is quite possible that it is simply necessary to carry out a partial re-profiling of activities.

4. Dismissal based on the results of the probationary period

The probationary period (usually it is 2 months) does not always lead to automatic enrollment in the company's staff. An employee may perform frankly poorly: fail to demonstrate the declared skills, fail to competently cope with problematic situations, and, in the end, simply fail to confirm the level of his own qualifications.

In this case, only his inevitable dismissal becomes automatic. For the employer, this also seems to be the best format for interaction with such an employee: the prospects for a possible trial on the latter’s claim are negligible. (The Labor Code even provides for a corresponding entry in the work book).

5. Inconsistency with the position or repeated incomplete official compliance

An employee may no longer “meet” the high standards adopted by the company, conditionally, the very next day after his candidacy is approved and he is hired after completing a probationary period. In this case, the employer (of course, if there are objective grounds) has the right to demand from an employee whose qualifications there are serious doubts to undergo an official certification of his professional skills.

An objective decision on dismissal can be made only on the basis of the results of certification (in this case, the potential for a dismissed employee to file a claim regarding the unjustified deprivation of his position is negligible).

6. Gross violations of labor discipline

There are several of them, but the most popular and accepted by courts as compelling arguments are:

appearing at work while intoxicated;
systematic delays;
absence from work more than 2 times without a valid reason for more than 4 hours.

Dismissal is initiated based on a report from the immediate supervisor of the employee at fault. A written explanation is taken from the latter, and if there are no objective justifying circumstances, then the head of the enterprise issues an order to dismiss the employee.

Summary

Not the safest way to get fired Lately It was a farewell to pensioners for their well-deserved rest. As part of the presidential address Federal Assembly potential pensioners in the Russian Federation are recognized as an untouchable category of employees. Therefore, it is currently more profitable for entrepreneurs to get rid of the newly adopted young specialist than even just hinting at the retirement of the “old-timer.” This is the law enforcement practice in the field of dismissals.

According to the Labor Code of the Russian Federation, in some cases the employer can initiate termination of the contract with an employee. Sometimes the termination of such relationships occurs due to mutual desire with the wording “by agreement of the parties.” The most common reason for terminating an activity is the employee’s desire. How to resign on your own, observing all the legal subtleties? And what to do when the employer does not let you go?

Time frames and procedure for dismissal

The employee gives written notice of resigning at his own request at least 14 days in advance. The intern is obliged to notify the planned departure no later than 3 days in advance, the supervisor or coach- per month. If the application is submitted, for example, today, processing begins tomorrow. However, by agreement of the parties, the period established by law before separation may be shorter.

With documentary evidence, persons enrolled in the educational institutions or have changed their place of residence. The same right applies to pensioners and people caring for disabled people of the first group. The obligation to remain temporarily in place is also lifted in the case where the employer has violated the terms of the collective agreement. Important: the fact of non-compliance with the rights of an employee must be recorded by a court, a labor dispute commission, a trade union or a labor inspectorate.

How to resign on your own? The procedure is as follows:

Writing a statement before dismissal. The employee retains the right to revoke the document throughout the warning period.
Preparation by the personnel service of a dismissal order in accordance with Form No. T-8 (8a). The document must contain details of the application and a reference to paragraph 3 of part 1 of Article 77 of the Labor Code.
Familiarization with the employee’s order, confirmation of which will be a signature. If this is not possible, a note is made on the document that the employee refused or was absent.
Making an entry about dismissal in the personal account and personal card, work book.
Issuance of basic documents on the day of dismissal. At the request of the employee, copies of the order and certificate (2-NDFL, salary, insurance contributions) can also be provided.

On the last day of work, financial calculations are made. If the employee is not on site, the entire amount due must be paid within 24 hours after the request. Estimates include salary and compensation for unused vacation. This also includes additional payments specified in the employment (collective) agreement. When dismissing an employee who was previously granted leave in advance, a recalculation is made. At the end, a note must be drawn up in form T-61.

You can calculate the amount of compensation for unused vacation yourself using.

How to write and submit a letter of resignation?

There is no standard application form, but it is still drawn up according to the rules. The document drawn up to the head of the organization must indicate the full name and position of the employee who wishes to leave. Next they ask to dismiss “at your own request” and write on what date this must be done. The reason for leaving is indicated only in the case when they apply for dismissal without service. At the request of the personnel service, such a statement will need to be supported by relevant documents. For example, this could be a copy of a passport with a discharge note and a discharge sheet, a medical report, and so on. At the end of the document, indicate the date of its preparation and put a signature.

It is better to hand over the application to the boss in person in two copies. One sheet should remain with the manager, and the second (with a mark on acceptance of the document) should remain with the employee. A duplicate of the application is necessary for the resigning person in case of disputes with the employer. An alternative option for submitting a document is by mail. Send the application by letter, having previously filled out a list of attachments (in 2 copies) and a receipt receipt on postal forms. This method is good because the boss will not be able to ignore the document submitted to him, and the employee will have documentary evidence of the fact of delivery of the papers. Important: the period of service should be calculated from the date of delivery of the letter to the boss, indicated in the postal notification.

How to resign during illness or vacation?

A temporarily disabled employee can also leave work at his own request. If the last day of presence in the office indicated in the application falls during illness, the contract is terminated without the dismissal. A note is made on the order that the employee was absent, so it was not possible to familiarize him with the document.

An employee can receive a work book himself when he recovers, or by mail. The settlement must be paid to him immediately after such a demand is presented. This should happen either on the same or the next day. Within 10 days after the provision of sick leave, the organization is obliged to calculate temporary disability benefits. The assigned amount is issued on the next payday.

Dismissal at the initiative of the employee can occur before or during vacation. You can write a corresponding application 14 calendar days before your vacation. This can be done directly during the vacation period. In the first case, the two weeks allotted by law are considered work. In the application, the request for annual paid leave is supplemented with the phrase “with subsequent dismissal.” The issuance of a work book and settlement with the employee must be made on the day before the start of the rest. But the last day of vacation will be listed as the date of dismissal in the papers. Important: if desired, the boss can refuse to provide such rest, since the law does not oblige him to do so.

When submitting an application during vacation, the employer cannot require a subordinate to urgently go to the enterprise. If two weeks of expected work time fall on vacation, the employee will no longer have to appear on site. He must receive both the money and documents related to the dismissal during the vacation period. It also happens that it is only partially possible to complete the warning period. In this case, after vacation they go to work to spend the remaining days of their two-week work there. The dismissal then proceeds according to the standard procedure.

What to do when your resignation letter is not accepted?

If the employer does not accept the application and does not dismiss, the employee can send documents to the organization’s office management and document management department. How to do this by mail has already been discussed. Until the time specified in the application, you must perform your official duties in full. The right not to go to work appears when the notice period has expired.

Without receiving a work book, you can go to court with a demand for all days of delay in issuing documents to recover from the organization average earnings(Paragraph 4 of Part 1 of Article 234). The employee is also entitled to compensation for moral damage (paragraph 14 of part 1 of Article 21, Article 237). The inaction of the manager is subject to appeal in court general jurisdiction. You can protect labor rights through a trade union organization, a territorial division of Rostrud, or the prosecutor's office.

There are also legal issues associated with wrongful termination. It is considered as such when another person wrote the application for the employee or there is no document at all. If a forgery is discovered, the employee should file a lawsuit with a demand to restore it, as well as a petition for a handwriting examination. If a conscientious leader wants to play it safe, he should accept only those statements that are written by hand and in his presence.

Another condition under which dismissal is considered illegal is writing a statement under duress. It is difficult to prove that leaving a job was dictated not by one’s own desire, but by pressure from management, so winning cases of this kind are rare. Procedural violations may be grounds for declaring dismissal illegal. Neglect of the norms is sometimes indicated by a discrepancy between the dates indicated in the application and the order.

Thus, to ensure that neither party challenges the voluntary dismissal in the future, the letter of the law must be strictly adhered to.

Dismissal during vacationis one of the ways to terminate an employment contract without working off. At the same time, any employee has the right to terminate the employment relationship during the vacation period on his own initiative. We will talk about the intricacies of this procedure and the rights of the parties below.

Is it possible to quit while on vacation?

If you don’t know whether you can quit while on vacation, then we answer: of course, you can. At the same time, no employer has the right to restrict an employee from his desire to submit an appropriate application and terminate his employment relationship with him. But an employer can fire an employee who is on vacation only in a limited number of cases:

In all other situations, dismissal during an employee’s vacation against his wishes is impossible.

When is a resignation letter written during voluntary leave?

When resigning during voluntary leave, there are several options for notifying the employer of the upcoming termination of the employment contract. An employee can submit a letter of resignation at the same time as applying for leave, or he can send it while he is on leave.

Let us clarify that the employer has the right to refuse to grant an employee leave with subsequent dismissal, since such an obligation is not assigned to him at the legislative level. Leave under such conditions is solely the right of the manager.

If you are planning to resign without leaving your vacation, the last day of your performance of your work duties in the organization (of course, if you submit the appropriate application in a timely manner) will be considered the last day of your vacation. Remember also that after your vacation you should not go back to your previous place of work to receive documents, since making payments to the employee and issuing documents to him is provided for on the last day worked before going on vacation.

On this date, authorized specialists must take the following actions:

An order to terminate the contract has been prepared.
The corresponding entries are made in the work book (after which it must be handed over to the resigning person).
Full payment has been made.

It should also be noted that in addition to the calculation for the period actually worked, you are also paid vacation pay on a general basis. If vacation is partially used, only the unused part of it is compensated simultaneously with the calculation.

If an employee wants to quit while already on vacation, he can come to the employer in person and write a corresponding statement, or write it and then send this document by mail. It is important to note that it is better to send the application by registered mail with acknowledgment of delivery and a list of the attachments, since in this case you will have proper evidence not only of the fact that the letter was sent, but also what kind of letter you sent, who received it and when.

It is also important to understand that if there are less than 14 days left from the moment the employer receives the application until the end of your vacation, the remaining days will need to be worked after the vacation (unless, of course, the employer meets you halfway and does not let you go without working). The 2-week period begins to count from the date following the date on which the employer received the resignation letter.

Don't know your rights?

That is, in general, the date of dismissal of an employee will be considered the day of the end of the 2-week period established for notice of dismissal, even if this day falls during the vacation period. On the day that is the last officially working day, the employer must give the employee his work record and make a full settlement with him.

Is it always possible to quit during the vacation period?

An employee planning to terminate his employment relationship has the right to declare dismissal during vacation, regardless of what kind of vacation he is on. The procedure for dismissal in any case is similar to that described above.

By the way, dismissal is possible not only during vacation, but also during sick leave. In the latter case, it is carried out on the same grounds as dismissal while on vacation. The procedure for dismissal, calculation of deadlines and calculations will be similar to those provided for dismissal during the vacation period.

Dismissal by agreement of the parties

The Labor Code does not pay too much attention to dismissal by agreement of the parties, limiting itself in Article 78 to mentioning that termination of employment relations on such grounds is possible at any time, that is, including during the employee’s vacation.

The dismissal initiative can come from both the employee and the employer—the law does not contain any restrictions on this matter. It also does not contain instructions regarding the form of such an initiative, that is, the initiating party has the right to send a written proposal to terminate the employment relationship to the second party or express it orally.

The Labor Code also does not provide any explanations regarding the form of the dismissal agreement itself, from which we can conclude that an oral agreement on the date and conditions of dismissal is as valid as a written one. However, it is still recommended to formalize the agreement in writing, since the document obtained in this way will serve as evidence of the consent of both parties to terminate the employment relationship.

Dismissal by agreement of the parties, as well as dismissal for any other reason, is formalized by an appropriate order from the employer. The basis for issuing an order usually specifies the details of the agreement reached between the parties. This is another argument in favor of the fact that it is better to formalize such an agreement in writing.

As for the need to receive a resignation letter from the employee, since neither the Labor Code nor any other normative act do not indicate the application as a mandatory document required for termination of the employment contract, we can conclude that its absence will not in any way affect the legality of the dismissal procedure.

However, this statement can be considered fully fair only if the parties have drawn up and signed a written agreement. If there is no such thing in writing, the employee’s statement and the dismissal order issued on its basis will serve as evidence that the parties have reached an appropriate agreement.

This position is confirmed by judicial practice, in particular, it is reflected in the appeal rulings of the Moscow City Court dated March 18, 2016 in case No. 33-9523/2016 and the St. Petersburg City Court dated March 29, 2016 in case No. 2-4314/2015. In both cases, the courts considered agreement on the date, grounds and conditions of dismissal to be reached, despite the absence of a written agreement. Statements from employees and dismissal orders issued on their basis were accepted as evidence of reaching an agreement.

Thus, the only mandatory written document for formalizing dismissal by agreement of the parties is the corresponding order. But in order to avoid disputes about the legality of termination of the employment contract, it is recommended to conclude a written agreement between the parties or submit a written statement from the employee.

Let's summarize. The procedure for dismissing an employee on vacation is no different from the procedure for terminating an employment relationship in other circumstances. Legislative restrictions apply only to the grounds for dismissal - during an employee’s vacation, it is possible only in 3 cases: at the request of the employee, by agreement of the parties, or in case of complete liquidation of the enterprise.

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