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What is Article 77 of the Labor Code. Termination of an employment contract by agreement of the parties

Labor Code of the Russian Federation Article 77 part 1 p 1 – this is the termination of an employment contract by agreement of the parties. In fact, this is not the easiest way to terminate an employment relationship. And primarily for the simple reason that there is no prescribed procedure for this action in any regulatory document. Some believe that even the text of the article itself, in terms of the order of application of the basis, may seem laconic to many. Because of all these points, questions may arise both from the resigning employee and from the employer along with his HR department.

The provided article is intended to enable the reader to understand as clearly as possible all the points of the Labor Code of the Russian Federation, Article 77. In this article we will give certain recommendations on the issue of the grounds for termination of employment relations. So, we are faced with the issue of terminating an employment contract between the parties who mutually decided to part ways on mutually beneficial terms.

Features of dismissal by agreement of the parties

Oddly enough, such a concept as dismissal by agreement of the parties has several significant features. For example, the parties can terminate such an agreement at any time, indeed at any time. The point is that, for example, an employer has the right to terminate the employment relationship with its employee, even when he is not at work. For example, an employee is on maternity leave, or he is studying, and so on. Also, the employee may be temporarily disabled and much more.

This is really convenient for the employer, because in this way he saves time when reducing the company's workforce, naturally, with the consent of the employees who, for example, were offered good vacation pay. As for the employee, such an agreement also has its advantages. For example, under the Labor Code of the Russian Federation, Article 77 part 1 p 1, an employee is not required to notify the employer that he is quitting two weeks in advance, as the Labor Code of the Russian Federation states. Plus, according to the agreement, the employer immediately pays the entire agreed amount in person, and not in parts.

Plus, there is one more positive aspect for the employer when dismissing by mutual agreement of the parties. For example, even in comparison with Article 81 of the Labor Code of the Russian Federation, in our case there is no need to coordinate the issue with trade union organizations. This advantage, of course, has a greater impact on managers of large enterprises.

The procedure for terminating an employment contract by agreement of the parties

I would also like to note the fact that it is Article 78 of the Labor Code of the Russian Federation that regulates dismissal by agreement of the parties, but at the same time it refers to the Labor Code of the Russian Federation, Article 77 part 1 p 1! The fact is that the order is the basis for entry into the work book, and already in the order it is necessary to indicate the grounds on which the employment relationship was terminated, the enumeration of which is specified in Article 77 of the Labor Code of the Russian Federation.

Next, the most interesting question is, how is the dismissal procedure itself carried out by agreement of the parties? An employment contract is terminated by agreement immediately after the employer or employee submits a corresponding application stating their wishes in writing.

Initiating document

For example, it was the employee who decided to quit using the Labor Code of the Russian Federation Article 77 part 1 p 1. In this case, he needs to send his proposal in writing to the employer’s address, where a proposal will be made to terminate the employment relationship between them. This proposal will be registered through the secretary according to the established procedure in this company.

Agreement and order to terminate the employment contract

An agreement to terminate the employment contract is drawn up immediately after the parties come to an understanding. The agreement must set out the agreements reached by the employer and employee.

Please note that Article 78 of the Labor Code of the Russian Federation does not say anything about the fact that the agreement between the parties must be drawn up in writing. In view of all of the above, quite often, if the employee and the employer are not interested in each other’s services, they simply terminate the contract orally, without any possible formalization in writing. But you cannot do this, because it is a delusion. You must make the agreement, whatever one may say, in writing, since this is the basis for dismissal. Based on the agreement, an order is issued.

Only if the agreement was made in writing is there a guarantee of security for both parties to the contract. In this way, you protect yourself from all sorts of problems due to the termination of the employment relationship with the other party.


Termination of an employment contract by agreement of the parties gives the employee the opportunity to be released from work duties without warning within the period established by the Labor Code of the Russian Federation and waiting for its expiration. A “peaceful” entry in the work book is another positive point. As a rule, the wording “Dismissed by agreement of the parties” is considered neutral, although it does not indicate that there were no disagreements between the employee and his previous employer. The stated advantages of the considered grounds for termination of an employment contract can only be discussed in relation to the situations described. Under other circumstances, advantages can become disadvantages for the employee, and here we should talk about the benefit of the employer.

Compensation upon dismissal by agreement of the parties

Termination of an employment contract under paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation is quite beneficial for both subjects of labor relations, and is also relatively simple in execution. For an employee who has decided to leave the organization and has identified a new employer, a 2-week work period may seem unreasonably long. After all, in order to get a new job, he will have to come to interviews, perform various types of tests and participate in other activities prior to hiring.


All these procedures are carried out during the working day, and the employee will need to either take time off from work (which the employer rarely agrees to upon receiving a letter of resignation at his own request), or find other ways to legally be released from work.

Dismissal by agreement of the parties, Article 77 paragraph 1 of the Labor Code of the Russian Federation

For this method of registration, an application that does not indicate the date of termination of the employment contract will not be suitable. The resolution of the head of the organization in which the date will be determined can be challenged, since the date determined by the employer may not suit the employee, and he can always refer to the fact that it was not agreed with him (after all, he put his signature first). Therefore, if the personnel service prefers this design scheme, it is advisable to determine the date with the employee initially and ask to indicate it in the application.
Certain problems arise when the employee himself, without consultation with the personnel service, submits an application indicating the date of dismissal. If the date does not suit the employer, the situation may reach a dead end, which may result in a conflict and the employer refusing to enter into an agreement.

Article 77 of the Labor Code of the Russian Federation. general grounds for termination of an employment contract

Good evening. Upon dismissal under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation (“due to refusal to continue work due to a change in the terms of the employment contract determined by the parties”) what compensation should I be paid? Labor Code of the Russian Federation, dismissal Article 77 p 7 Collapse Victoria Dymova Support employee Pravoved.ru Try looking here:

  • Threat of dismissal under clause 7, part 1, article 77 of the Labor Code of the Russian Federation upon refusal to sign an additional agreement
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Payment of compensation upon dismissal under clause 7 of part 1 of Article 77 of the Labor Code of the Russian Federation

LLC from (position, surname, initials of the employee) Statement I ask you to consider the possibility of terminating the employment contract with me dated 01/01/2014. No. 001TD from June 10, 2014 in accordance with paragraph 1 of Article 77 of the Labor Code of the Russian Federation (agreement of the parties). If the initiator of termination of the contract is the employer, then he will also have to send the employee a similar proposal. When drawing up this document, it should be remembered that neither the employee nor the employer are obliged to indicate in the text the reasons for their desire or indicate other grounds. If the initiative comes from the employer, then they also send a letter to the employee with a proposal to terminate the employment contract by agreement of the parties, where the employer offers the employee to terminate the contract, indicates the exact or approximate period for termination of the employment relationship, and also indicates the period for the employee’s response about his decision.

Dismissal by agreement of the parties, clause 1, part 1, article 77 of the Labor Code of the Russian Federation, compensation

Features of dismissal by agreement of the parties Oddly enough, such a concept as dismissal by agreement of the parties has several significant features. For example, the parties can terminate such an agreement at any time, indeed at any time. The point is that, for example, an employer has the right to terminate the employment relationship with its employee, even when he is not at work.

For example, an employee is on maternity leave, or he is studying, and so on. Also, the employee may be temporarily disabled and much more. This is really convenient for the employer, because in this way he saves time when reducing the company's workforce, naturally, with the consent of the employees who, for example, were offered good vacation pay.


As for the employee, such an agreement also has its advantages.

Termination of an employment contract by agreement of the parties

Important

I ask you to speak out regarding the termination of the employment contract dated January 1, 2014 N 001TD on the basis of clause 1 of Art. 77 of the Labor Code of the Russian Federation by agreement of the parties. The termination date of the employment contract is June 10, 2014. Notify me of your decision in writing within three days after receiving this letter. Considering the fact that the letter is date-bound and has a set response time, this letter must be registered and handed over to the employee personally against signature.


Accordingly, in this case, with the consent of the employee, he must send his response to the employer within the time period specified in the letter. a sample of such an answer: To the General Director of LLC from (position, surname, initials of the employee) With a proposal to terminate the employment contract 01.01.2010 N 007 on the basis of clause 1 of Art.

2.1. dismissal by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation)

Attention

No written statements from the employee or notifications (proposals) from the employer are required. However, in practice, the most seemingly unencumbered grounds for dismissal are sometimes unreasonably complicated. First of all, let's pay attention to the following very common design model.


The personnel service invites the employee to write a statement to terminate the employment contract. This registration model is usually explained by the employer’s desire to play it safe - so that it can be proven that the offer came from the employee. In this case, at best, the employee is prompted with the following text: “I ask you to dismiss me by agreement of the parties” or “I ask you to terminate the employment contract by agreement of the parties.”
And it happens that the application contains a request to terminate the employment contract without any explanation - “I ask you to terminate the employment contract with me.”

Article 77. General grounds for termination of an employment contract

The Labor Code of the Russian Federation, in this case it is clause 1 of this article, while article 78 explains not the basis, but the procedure. In documents preceding the preparation of the final order, clause 1 of Art. 77 of the Labor Code of the Russian Federation in cases where we are talking about grounds for dismissal, and Art. 78 of the Labor Code of the Russian Federation in cases where its procedure is determined. Now about the procedure for carrying out such a dismissal. Before terminating an employment contract, by agreement of the parties, either party to the contract (employee or employer) must invite the other party to do so, stating its desire in writing. Initiating documentFor example, an employee expressed a desire to terminate the employment contract by mutual agreement. In this case, he should send a unilateral proposal to the employer to terminate the employment relationship between them.

Dismissal by agreement of the parties: advantages and algorithm

Drawing up an agreement to terminate an employment contract is similar to drawing up an employment contract. That is, you need to specify: The agreement must indicate:

  • the basis on which the employment contract will be terminated (by agreement of the parties),
  • date of dismissal of the employee.

If the dismissal is of a conflictual nature, the agreement can provide for the employee’s obligation to complete certain work by the date of dismissal, prepare the necessary reports, carry out an inventory or accept and transfer cases to another person, etc. Often the agreement stipulates additional monetary compensation, which is paid to the employee upon dismissal.

This compensation is not provided for by the Labor Code of the Russian Federation, i.e. is not mandatory (such as compensation for unused vacation). But if the parties agree, such compensation can be paid. 3. Issue a dismissal order.
The Labor Code of the Russian Federation does not require any coordination with trade union organizations. In addition, by agreement of the parties, not only an employment contract can be terminated, but also an early termination of an apprenticeship contract, which, according to Article 208 of the Labor Code of the Russian Federation, must be terminated either at the end of its term or on the terms specified in this agreement. The procedure for terminating an employment contract by agreement of the parties. Attention should be paid to the following point. Article 78 of the Labor Code of the Russian Federation regulates dismissal by agreement of the parties. However, clause 5.2 of the Instructions for filling out work books (Appendix No. 1 to the Resolution of the Ministry of Labor of the Russian Federation of October 10, 2003 N 69) requires reference in this case to paragraph 1 of Article 77 of the Labor Code of the Russian Federation. This is due to the fact that the basis for making an entry in the work book is an order, while the order indicates the grounds for terminating the employment relationship, and they are listed in Art.

New edition of Art. 77 Labor Code of the Russian Federation

The grounds for termination of an employment contract are:

1) agreement of the parties (Article 78 of this Code);

2) expiration of the employment contract (Article 79 of this Code), except for cases where the employment relationship actually continues and neither party has demanded its termination;

3) termination of an employment contract at the initiative of the employee (Article 80 of this Code);

4) termination of an employment contract at the initiative of the employer (Articles 71 and 81 of this Code);

5) transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position);

6) the employee’s refusal to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization, or a change in the type of state or municipal institution (Article 75 of this Code);

7) the employee’s refusal to continue working in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);

8) the employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer does not have the corresponding job (parts three and four of Article 73 of this Code);

9) the employee’s refusal to be transferred to work in another location together with the employer (part one of Article 72.1 of this Code);

10) circumstances beyond the control of the parties (Article 83 of this Code);

11) violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code).

An employment contract may also be terminated on other grounds provided for by this Code and other federal laws.

Part three is no longer valid.

Commentary on Article 77 of the Labor Code of the Russian Federation

Article 77 of the Labor Code of the Russian Federation contains a list of grounds for termination of an employment contract:

agreement of the parties;

expiration of the employment contract;

termination of an employment contract at the initiative of the employee;

termination of an employment contract at the initiative of the employer;

transfer of an employee at his request (with his consent) to work for another employer or transfer to an elective job (position);

the employee’s refusal to continue working in connection with a change in the owner of the enterprise’s property, a change in its jurisdiction (subordination) or reorganization;

the employee’s refusal to continue working due to a change in the previously determined terms of the employment contract;

the employee’s refusal to transfer to another job due to health conditions in accordance with a medical report;

the employee’s refusal to transfer due to the employer’s relocation to another location;

circumstances beyond the control of the parties (so-called force majeure or force majeure);

violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation (other federal law) - if such a violation excludes the possibility of the employee continuing the work (labor function) assigned to him in accordance with the employment contract;

other grounds provided for by the Labor Code of the Russian Federation (other federal laws).

Let us note that in each of the listed cases of termination of an employment contract, the decision made by the employer must not only be impeccable from a legal point of view, but also be appropriately documented, i.e. recorded in certain documents.

Termination of an employment contract due to transfer

employee to work for another employer

or for an elective job (position)

The procedure for terminating an employment contract in connection with the transfer of an employee to work for another employer or to an elective job (position) is not specifically defined by the Labor Code, although the corresponding basis for dismissing an employee is provided for in paragraph 5 of part one of Article 77 of the Labor Code of the Russian Federation. In this case, the employer, apparently, should adhere to the general procedure for terminating an employment contract and the above recommendations, especially since the mentioned paragraph clearly defines the circumstances the occurrence of which makes it possible to dismiss an employee on the basis in question.

Previously, we have repeatedly drawn the attention of our dear readers to the need to document the circumstances, the occurrence of which allows us to qualify the dismissal of an employee as legal. In the case under consideration, the issuance of an order (instruction) on dismissal is permitted on the basis of:

a written application from the employee, positively reviewed by the employer, containing a request for the latter to transfer to work for another employer or the employee’s consent to such a transfer;

a written application from the employee positively reviewed by the employer, containing a request for the latter to transfer to elective work or the employee’s consent to such a transition.

We also note that in accordance with Part 1 of Article 375 of the Labor Code of the Russian Federation, an employee released from work in connection with his election to an elective position in the trade union body of this organization, after the end of his term of office, must be provided with his previous job (position), and in his absence such work (position) - with the consent of the employee - another equivalent work (position) at the same enterprise. However, if an employee refuses the proposed job (position), the employment contract with him is terminated on the basis provided for in paragraph 7 of part one of Article 77 of the Labor Code of the Russian Federation.

As for the transfer of an employee to work for another employer, if such a transfer is carried out in accordance with a written invitation from another employer, the latter does not have the right to refuse to hire the employee within a month from the date of dismissal from the previous place of work, if by agreement between the employee and the employer did not establish another, including a longer period. The corresponding guarantee is provided for in Article 64 of the Labor Code of the Russian Federation.

from continuing work due to a change of owner,

in connection with a change in the jurisdiction of the enterprise or

in connection with its reorganization

The procedure for terminating an employment contract in connection with the employee’s refusal to continue working due to a change of owner, in connection with a change in the jurisdiction of the enterprise, or in connection with its reorganization is determined by Article 75 of the Labor Code of the Russian Federation. It must be emphasized that in this case the right and initiative to terminate the employment contract early belongs to employees of the following categories:

the head of the enterprise;

deputy head of the enterprise;

chief accountant of the enterprise.

Such a right, or more precisely, the right to refuse to continue working, is granted to the specified categories of employees if, after concluding employment contracts with them, there is a change of owner, a change in the jurisdiction of the enterprise, or its reorganization. Let us note that dismissal for the specified reasons should not be considered as a special case of dismissal of an employee at his own request (see in this regard, Article 80 of the Labor Code of the Russian Federation), since the article we are considering specifically lists the circumstances, the occurrence of which makes the dismissal of an employee lawful - at least and on his initiative.

The employee must notify the new employer of his refusal to continue working in connection with a change in the owner of the enterprise, in compliance with the requirements established for the procedure for such warning. If an employee refuses to continue working in connection with a change in the owner of the enterprise’s property, the employment contract is terminated on the basis provided for in paragraph 6 of part one of Article 77 of the Labor Code of the Russian Federation.

The employee must also notify the new employer of refusal to continue work in connection with a change in the jurisdiction (subordination) of the enterprise, as well as during its reorganization (merger, accession, division, spin-off, transformation), in compliance with the requirements established regarding the procedure for such warning. If an employee refuses to continue working due to a change in the jurisdiction of the enterprise or its reorganization, the employment contract is terminated on the basis indicated above.

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Termination of an employment contract due to employee refusal

from continuing work due to changes in certain

parties to the terms of the employment contract

The procedure for terminating an employment contract in connection with the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties is determined by Article 74 of the Labor Code of the Russian Federation, the content of which we discussed earlier. In this regard, we will briefly dwell on issues directly related to the dismissal of an employee on the grounds provided for in paragraph 7 of part one of Article 77 of the Labor Code of the Russian Federation due to the occurrence of the circumstances considered under this paragraph.

The essence of these circumstances lies in a motivated change in the terms of the employment contract determined by the parties at the initiative of the employer in connection with a change in organizational or technological working conditions. An employee who is warned in the prescribed manner about the upcoming change in the terms of the employment contract in connection with a change in organizational or technological working conditions and who declares his refusal to continue working under the new conditions is subject to dismissal.

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Termination of an employment contract due to employee refusal

from being transferred to another job due to health conditions

The procedure for terminating an employment contract in connection with an employee’s refusal to transfer to another job due to health conditions is determined by Article 73 of the Labor Code of the Russian Federation, which we also discussed earlier. Therefore, we will again touch only on issues directly related to the dismissal of an employee on the basis provided for in paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation due to the occurrence of circumstances determined by parts three and four of Article 73 of the Labor Code of the Russian Federation.

The essence of these circumstances lies in the employer’s obligation to transfer the employee to a job that is not contraindicated for him due to health reasons, if, in accordance with a medical report, the latter needs to be provided with such work. An employee who has been warned in the prescribed manner about the need to transfer to another job and has declared his refusal to do so is subject to dismissal.

The employer’s decision to dismiss an employee due to refusal to transfer to another job that is not contraindicated for him due to health reasons will be legal even if he does not have the corresponding work in the given area (provided that he is not obliged to offer the employee the corresponding job in another locality).

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Termination of an employment contract due to employee refusal

from transfer to another job due to relocation

employer to another location

The procedure for terminating an employment contract in connection with the employee’s refusal to be transferred to another job due to the employer’s relocation to another location is determined by part one of Article 72.1 of the Labor Code of the Russian Federation, and the corresponding basis for dismissal is provided for by paragraph 9 of part one of Article 77 of the Labor Code of the Russian Federation. Let us clarify that in this case another area should be understood as an area outside the administrative-territorial boundaries of the settlement indicated in the employer’s registration documents as the latter’s permanent location.

The fact that the employer has moved to another location must be documented, and the refusal to transfer to another permanent job due to the employer’s move to another location must be expressed by the employee in writing. Failure to comply with these conditions - in the event of dismissal of an employee on the grounds provided for in paragraph 9 of part one of Article 77 of the Labor Code of the Russian Federation - may subsequently give rise to a labor dispute due to the unobvious legality of the employer's decision to terminate the employment contract.

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Another comment on Art. 77 Labor Code of the Russian Federation

1. The termination of an employment relationship is based on various types of legal facts, which can be divided according to structure, volitional content, as well as from the point of view of the legal source in which they are formulated.

2. The structure distinguishes between simple and complex legal facts (legal compositions). Labor legislation provides for both types of such facts. For example, most cases of termination of an employment contract at the initiative of the employer presuppose the need for a legal structure: as a rule, the employer’s will alone is not enough to terminate the employment relationship; a reason is required, which determined the emergence of the corresponding right for the employer.

Modern labor legislation expands the range of simple legal facts underlying the termination of an employment contract, which is a reflection of the transition to a market economy. Thus, before the Labor Code of the Russian Federation came into force, almost the only case of this kind was the termination of an employment contract at the initiative of the employee. Currently, in some cases, an employment contract can be terminated due to the unilateral initiative of the employer (see paragraph 2 of Article 278 of the Labor Code of the Russian Federation and the commentary thereto).

3. From the point of view of volitional content, a distinction is made between legal facts-actions and legal facts-events.

The first involves the termination of the employment relationship in the presence of someone’s will. Thus, the will (initiative) to terminate an employment contract can come from its parties or from persons who are not a party. In this regard, we can talk about termination of an employment contract by agreement of the parties, on the unilateral initiative of a party to the contract (employee or employer) or on the initiative of third parties.

Facts-events and facts-actions can be combined with each other, forming legal compositions, or represent single (simple) legal facts. For example, termination of an employment contract due to the expiration of its validity period presupposes the presence of a complex legal fact: a) expiration of the term; b) expression of the will of the employee or employer (see Article 79 of the Labor Code of the Russian Federation and commentary thereto). On the contrary, the fact of the employee becoming completely incapacitated, his death, or in some cases reaching the legal age limit, are the only grounds for terminating an employment contract with him (see paragraphs 5, 6 of Article 83 of the Labor Code; paragraph 3 of Article 336 of the Labor Code RF and commentary thereto).

4. The current legislation has expanded the degree of contractual freedom of the parties to the labor relationship, which is due to the multi-structured market nature of the modern Russian economy. To a large extent, this process is expressed in that part of the labor legislation that regulates the termination of an employment contract. If before the Labor Code of the Russian Federation came into force, the grounds for termination of an employment contract were regulated almost exclusively by mandatory norms of law, now they can be established both by law and by agreement of the parties. On the basis provided by agreement of the parties, employment contracts with the head of the organization may be terminated (see paragraph 3 of Article 278 of the Labor Code of the Russian Federation and the commentary thereto); with employees employed by employers - individuals (see Article 307 of the Labor Code of the Russian Federation and commentary thereto); with homeworkers (see Article 312 of the Labor Code of the Russian Federation and commentary thereto); with employees employed in a religious organization (see Article 347 of the Labor Code of the Russian Federation and commentary thereto).

5. In accordance with Art. 6 of the Labor Code of the Russian Federation, the procedure for termination (termination) of employment contracts falls under the jurisdiction of federal government bodies (see Article 6 of the Labor Code of the Russian Federation and the commentary thereto). At the same time, as follows from Part 2 of Art. 77 of the Labor Code, the grounds for termination of an employment contract are established by the Code and other federal laws.

Article 77 of the Labor Code of the Russian Federation lists the general grounds for termination of an employment contract, while additional grounds are indicated in other articles of the Code, as well as in other federal laws (see Articles 278, 288, 307, 312, 336 of the Labor Code of the Russian Federation and commentary thereto).

The division of the grounds for termination of an employment contract into general and special also occurs in relation to cases of termination of an employment contract at the initiative of the employer (see Article 81 of the Labor Code of the Russian Federation and the commentary thereto).

6. On termination of an employment contract by agreement of the parties (clause 1 of Article 77), see Art. 78 of the Labor Code of the Russian Federation and commentary to it.

7. On the termination of a fixed-term employment contract due to the expiration of the term (clause 2 of Article 77), see Art. 79 of the Labor Code of the Russian Federation and commentary to it.

8. On termination of an employment contract at the initiative of the employee (clause 3 of Article 77), see Art. 80 of the Labor Code of the Russian Federation and commentary to it.

9. On termination of an employment contract at the initiative of the employer (clause 4 of Article 77), see Art. Art. 71, 81 of the Labor Code of the Russian Federation and commentary to them.

10. On the transfer of an employee to another employer (clause 5 of Article 77), see Art. Art. 72.1, 64, 70 of the Labor Code of the Russian Federation and commentary to them.

11. Along with the transfer of the employee to work for another employer, clause 5 of Art. 77 of the Labor Code of the Russian Federation establishes as a basis for termination of an employment contract the transfer of an employee to an elective job (position). In terms of legal content, such a transition completely coincides with the case of termination of an employment contract due to the transfer of an employee to another employer (see Article 72.1 of the Labor Code of the Russian Federation and the commentary thereto), since here too there is a change in the subject composition of the labor relationship. Therefore, all those general rules that are provided for by law for this general case also apply to the situation that arises when an employee transfers to an elective job (position). Persons elected (selected) to an elective position cannot be denied an employment contract (see Article 64 of the Labor Code of the Russian Federation and the commentary thereto); they do not establish a preliminary test for new work (see Article 70 of the Labor Code of the Russian Federation and the commentary thereto).

At the same time, the legislator interprets the transition to an elective job (position) as an independent basis for termination of an employment contract. Consequently, despite the fact that the transition to an elective job (position) is a special case of innovation in the subject composition of an employment contract, it has specificity, manifested in two points.

Firstly, there are organizational and legal consequences established by law that occur in connection with the presence of a given person in an elective paid position. Such consequences are not provided for all cases of filling positions through election, but only for some of them. So, by virtue of Art. 375 of the Labor Code of the Russian Federation, an employee released from work in an organization or an individual entrepreneur in connection with his election to a position in the elective body of a primary trade union organization, after the end of his term of office, is provided with the previous job (position), and in its absence, with the consent of the employee, another equivalent job (position) with the same employer (see Article 375 of the Labor Code of the Russian Federation and commentary thereto).

In accordance with Art. 25 of the Federal Law of May 8, 1994 N 3-FZ "On the status of a member of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly of the Russian Federation" to a member of the Federation Council, a deputy of the State Duma, who worked before being elected (appointed) as a member of the Federation Council, a deputy of the State Duma under an employment contract, after the termination of their powers, they are provided with the previous job (position), and in its absence, another equivalent job (position) at the previous place of work or, with their consent, in another organization.

A similar norm is provided for in the laws of the constituent entities of the Russian Federation, which determine the status of deputies of the relevant legislative bodies.

Secondly, in the specificity of the volitional content of the act of termination of an employment contract in connection with the transition to an elective job (position). If, when transferring an employee to another employer, coordination of the wills of three subjects is required - the transferred employee, dismissing the employer and the employer entering into a new employment contract, then in the case under consideration the direction of the will of the employer terminating the employment contract does not matter: he is obliged to terminate the employment contract with the employee in in accordance with paragraph 5 of Art. 77 Labor Code of the Russian Federation. However, the law does not make any clarifications regarding the nature of the work for which the employee is selected. Consequently, the considered basis for termination of an employment contract is subject to application when electing an employee to any elective job or position (head of a commercial organization, teacher at an institution of higher professional education, etc.).

12. Termination of the employment contract under clause 5 of Art. 77 of the Labor Code of the Russian Federation can take place provided that the resigning employee does not object to this. If the employee insists on dismissal of his own free will, the employment contract with him is terminated on this basis (see Article 80 of the Labor Code of the Russian Federation and the commentary thereto).

13. On changes to the employment contract due to a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization, see Art. 75 of the Labor Code of the Russian Federation and commentary to it.

14. For changes in the terms of the employment contract, see Art. 74 of the Labor Code of the Russian Federation and commentary to it.

15. On the transfer of an employee to another job in accordance with a medical report, see Art. 73 of the Labor Code of the Russian Federation and commentary to it.

16. On the concept of transfer to another area, see Art. 72.1 of the Labor Code of the Russian Federation and commentary to it.

17. On termination of an employment contract due to circumstances beyond the control of the parties (clause 10, article 77), see art. 83 of the Labor Code of the Russian Federation and commentary to it.

Current version of Art. 77 of the Labor Code of the Russian Federation with comments and additions for 2018

The grounds for termination of an employment contract are:
1) agreement of the parties (Article 78 of this Code);
2) expiration of the employment contract (Article 79 of this Code), except for cases where the employment relationship actually continues and neither party has demanded its termination;
3) termination of an employment contract at the initiative of the employee (Article 80 of this Code);
4) termination of an employment contract at the initiative of the employer (Articles 71 and 81 of this Code);
5) transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position);
6) the employee’s refusal to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization, or a change in the type of state or municipal institution (Article 75 of this Code);
7) the employee’s refusal to continue working in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);
8) the employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer does not have the corresponding job (parts three and four of Article 73 of this Code);
9) the employee’s refusal to be transferred to work in another location together with the employer (part one of Article 72.1 of this Code);
10) circumstances beyond the control of the parties (Article 83 of this Code);
11) violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code).
An employment contract may also be terminated on other grounds provided for by this Code and other federal laws.

Commentary on Article 77 of the Labor Code of the Russian Federation

The commented article establishes the general grounds for termination of an employment contract, which are specified in other articles of Chapter 13 of the Labor Code of the Russian Federation. Including these:
- agreement of the parties. On this basis, the employment contract can be terminated at any time (see Article 78 and commentary thereto);
- expiration of the employment contract. A fixed-term employment contract is terminated upon expiration of its validity period (see Article 79 and commentary thereto). An exception is the case when the employment relationship actually continued and neither the employee nor the employer demanded its termination;
- termination of an employment contract at the initiative of the employee (see Article 80 and commentary thereto). This is the most common case of termination of an employment contract (the so-called “dismissal at will”);
- termination of an employment contract at the initiative of the employer. This applies to cases of termination of an employment contract with an employee in the event of an unsatisfactory test result, if it was established by the employment contract (see Article 71 of the Labor Code of the Russian Federation and the commentary thereto), as well as a number of cases listed in Art. 81 Labor Code of the Russian Federation ();
- transfer of an employee at his request or with his consent to work with another employer. As provided in Art. 72.1 of the Labor Code of the Russian Federation, the transfer of an employee to a permanent job with another employer is carried out at the written request of the employee or with his written consent with the simultaneous termination of the employment contract at the previous place of work. This also includes the transfer of an employee to an elective job (position), that is, the new place of work to which the employee is transferred provides for the formation of a management apparatus in it through elections. This is the only difference between this ground for termination of an employment contract and the transfer of an employee to work for another employer;
- refusal of an employee to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization, its reorganization, or a change in the type of state or municipal institution. The possibility of such a refusal is provided for in Art. 75 of the Labor Code of the Russian Federation (see commentary to this article);
- the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties. According to Art. 74 of the Labor Code of the Russian Federation, if, for reasons related to changes in organizational or technological working conditions, the terms of the employment contract determined by the parties cannot be preserved, they are allowed to be changed at the initiative of the employer (with the exception of changes in the employee’s labor function) in compliance with the established procedure ( cm. ). However, the employee may not agree to work under the new conditions, and may also refuse another job offered to him by the employer (or the employer may not have any other suitable job). In this case, the employee is dismissed on this basis. The resolution of the Plenum of the Armed Forces of the Russian Federation on the application by the courts of the Labor Code of the Russian Federation clarifies that when resolving cases of reinstatement to work of persons whose employment contract was terminated under clause 7, part 1 of the commented article, or on the recognition of illegal changes to the terms of the employment contract determined by the parties when the employee continues to work without changing the labor function (Article 74 of the Labor Code of the Russian Federation), it must be taken into account that, based on Art. 56 of the Code of Civil Procedure of the Russian Federation, the employer is obliged, in particular, to provide evidence confirming that the change in the terms of the employment contract determined by the parties was a consequence of changes in organizational or technological working conditions, for example, changes in equipment and production technology, improvement of workplaces, structural reorganization of production, and did not worsen the situation employee compared to the terms of the collective agreement or agreement. In the absence of such evidence, termination of the employment contract under clause 7, part 1 of art. 77 of the Labor Code of the Russian Federation or a change in the terms of the employment contract determined by the parties cannot be recognized as legal;
- the employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work. This rule is applicable to an employee in respect of whom a medical report has been issued on the need for his temporary transfer to another job for a period of more than four months or on the need for permanent transfer, and in relation to managers, their deputies and chief accountants - regardless of the period of transfer established by the medical report ( see Art. 73 and commentary thereto);
- refusal of the employee to be transferred to work in another location together with the employer. The possibility of transferring an employee to work in another area together with the employer is provided for in Art. 72.1 of the Labor Code of the Russian Federation (see commentary to this article). Since if the employee refuses such a transfer, it becomes impossible to continue his work with this employer, the employment contract with him is terminated on this basis;
- circumstances beyond the control of the parties. A number of such circumstances (an employee’s conscription into military service or his assignment to an alternative civilian service that replaces it, the death of an employee, etc.) are established by Art. 83 of the Labor Code of the Russian Federation (see commentary to this article);
- violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation or other federal law, if this violation excludes the possibility of continuing work. According to Art. 84 of the Labor Code of the Russian Federation, an employment contract can be terminated due to violation of such rules as the conclusion of an employment contract in violation of a court verdict depriving a particular person of the right to occupy certain positions or engage in certain activities; lack of an appropriate document on education, if the work requires special knowledge in accordance with federal law or other regulatory legal acts, etc. (see commentary to Article 84 of the Labor Code of the Russian Federation).

2. An employment contract may be terminated on other grounds provided for by the Labor Code of the Russian Federation and other federal laws.

Yes, Art. 278 of the Labor Code of the Russian Federation establishes a number of additional grounds for terminating an employment contract with the head of an organization. Article 307 of the Labor Code of the Russian Federation establishes that an employment contract with an employee working for an individual employer may also be terminated on the grounds provided for in the employment contract. An employment contract concluded for an indefinite period with a person working part-time can be terminated, in addition to the general grounds, in the case of hiring an employee for whom this work will be the main one (Article 288 of the Labor Code of the Russian Federation).

Also, for example, clause 3 of Art. 4 of the Charter on the discipline of employees of organizations operating especially radiation-hazardous and nuclear-hazardous production and facilities in the field of atomic energy use, establishes that an employment contract with an employee can also be terminated in the event of a one-time commission of one of the violations provided for in Art. 61 of the Federal Law of November 21, 1995 N 170-FZ “On the Use of Atomic Energy” (including in case of unauthorized abandonment of a nuclear installation, radiation source and storage facility by duty shift workers), if the consequences of such a violation pose a threat to the safe operation of the operating organization and pose a danger to the life and health of citizens and the environment.

In such cases, it is necessary to take into account that the dismissal of an employee must be carried out on the basis that determines its specificity. That is why the commented article contains a clause stating that an employment contract can be terminated for other reasons not specified in it.

3. According to Part 15 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225, upon termination of an employment contract on the grounds provided for in Art. 77 of the Labor Code of the Russian Federation, a record of termination of the employment contract is made in the work book with reference to the corresponding paragraph of Part 1 of Art. 77 Labor Code of the Russian Federation. The exception is cases of termination of an employment contract at the initiative of the employer and due to circumstances beyond the control of the parties (clauses 4, 10 of the commented article), when reference is made to the corresponding clause of Part 1 of Art. 81 Labor Code of the Russian Federation, Part 1, Art. 83 Labor Code of the Russian Federation.

So, in Art. 73 of the Labor Code of the Russian Federation, dedicated to the transfer of an employee to another job in accordance with a medical report, uses the wording “if he refuses the transfer or the employer does not have the appropriate job, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of this Code.” In Art. 74 of the Labor Code of the Russian Federation, in relation to changes in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions, and the employer’s obligation to offer the employee another job, states: “in the absence of the specified work or the employee’s refusal of the proposed work, the employment contract is terminated in accordance with paragraph 7 of part one of Article 77 of this Code."

Another comment to Art. 77 Labor Code of the Russian Federation

1. In accordance with Art. 6 of the Labor Code, the procedure for termination (termination) of employment contracts falls under the jurisdiction of federal government bodies. At the same time, as follows from Part 2 of the commented article, the grounds for termination of an employment contract are established by the Labor Code and other federal laws.

The commented article lists the general grounds for termination of an employment contract, additional ones are indicated in other articles of the Labor Code, as well as in other federal laws (see Articles 278, 288, 307, 312, 312.5, 336, 347, 348.11 of the Labor Code and commentary thereto ).

The division of the grounds for termination of an employment contract into general and special also occurs in relation to cases of termination of an employment contract at the initiative of the employer (see Article 81 of the Labor Code and the commentary thereto).

2. On termination of an employment contract by agreement of the parties, see Art. 78 TC and commentary to it.

3. On termination of a fixed-term employment contract due to the expiration of the term, see Art. 79 TC and commentary to it.

4. For termination of an employment contract at the initiative of the employee, see Art. 80 TC and commentary to it.

5. For termination of an employment contract at the initiative of the employer, see Art. Art. 71, 81 TC and commentary to them.

6. For the transfer of an employee to another employer, see Art. Art. 64, 70, 72.1 Labor Code and commentary thereto.

7. Along with the transfer of an employee to work for another employer, the Labor Code establishes as a basis for termination of an employment contract the transfer of an employee to an elective job (position). In terms of legal content, such a transition completely coincides with the case of termination of an employment contract due to the transfer of an employee to another employer (see Article 72.1 of the Labor Code and the commentary thereto), since in both cases there is a change in the subject composition of the employment relationship. Therefore, the general rules provided for by law for this general case also apply to the situation that arises when an employee transfers to an elective job (position). Persons elected (selected) to an elective position cannot be denied an employment contract (see Article 64 of the Labor Code and commentary thereto); they are not subject to a test at their new job (see Article 70 of the Labor Code and the commentary thereto).

At the same time, the legislator interprets the transition to an elective job (position) as an independent basis for termination of an employment contract. Consequently, the transition to an elective job (position) is a special case of innovation in the subject composition of an employment contract; it has certain specifics:

a) the presence of organizational and legal consequences established by law that occur in connection with the presence of this person in an elective paid position. Such consequences are provided only for certain cases of filling positions through election. So, by virtue of Art. 375 of the Labor Code, an employee released from work in an organization or an individual entrepreneur in connection with his election to a position in the elective body of a primary trade union organization, after the end of his term of office, is given his previous job (position), and in its absence, with the consent of the employee, another equivalent job ( position) with the same employer (see Article 375 of the Labor Code and commentary thereto).

In accordance with Art. 25 of the Federal Law of May 8, 1994 N 3-FZ "On the status of a member of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly of the Russian Federation" to a member of the Federation Council, a deputy of the State Duma, who worked before being elected (appointed) as a member of the Federation Council, a deputy of the State Duma under an employment contract, after the termination of their powers, they are provided with the previous job (position), and in its absence, another equivalent job (position) at the previous place of work or, with their consent, in another organization.

Similar norms are provided for in the laws of the constituent entities of the Russian Federation, which determine the status of deputies of the relevant legislative bodies;

b) features of the volitional content of the act of termination of an employment contract in connection with the transition to an elective job (position). If, when transferring an employee to another employer, coordination of the will of three subjects is required - the transferred employee, dismissing the employer and the employer entering into a new employment contract, then in the case under consideration the direction of the will of the employer terminating the employment contract does not matter: he is obliged to terminate the employment contract with the employee in in accordance with paragraph 5 of the commented article. However, the law does not specify the nature of the work for which the employee is selected. Consequently, the considered basis for termination of an employment contract is subject to application when electing an employee to any elective job or position (head of a commercial organization, teacher of an organization of higher professional education, etc.).

Termination of an employment contract under clause 5 of the commented article may take place provided that the resigning employee does not object to this. If the employee insists on dismissal of his own free will, the employment contract with him is terminated on this basis (see Article 80 of the Labor Code and the commentary thereto).

8. On changes to the employment contract due to a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization, see Art. 75 TC and commentary to it.

9. For changes in the terms of the employment contract, see Art. 74 TC and commentary to it.

10. On the transfer of an employee to another job in accordance with a medical report, see Art. 73 TC and commentary to it.

11. On the concept of transfer to another area, see Art. 72.1 TC and commentary thereto.

12. On termination of an employment contract due to circumstances beyond the control of the parties, see Art. 83 TC and commentary to it.

13. On termination of an employment contract due to violation of the rules for concluding an employment contract established by federal laws, if this violation excludes the possibility of continuing this work, see Art. 84 TC and commentary to it.

14. Termination of an employment contract is formalized by order (instruction) of the employer. In accordance with the order (instruction), a record of the employee’s dismissal is made in his work book. For the general procedure for registering termination of an employment contract, see Art. 84.1 TC and commentary thereto.

Consultations and comments from lawyers on the legislative system of the Russian Federation

If you still have questions about the legislation of the Russian Federation and you want to be sure of the relevance of the information provided, you can consult with the lawyers of our website.

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The accountant of our trading company (we sell heating boilers, staff of 12 people) expressed a desire to move to another company. She asked us to carry out dismissal under Part 1, Clause 5, Article 77 of the Labor Code of the Russian Federation. But our director said that if there is no notice of transfer from the new manager, then he does not intend to terminate the contract with her on this basis. Tell me, do we have the right to refuse her and assign her 2 weeks of work so that she can transfer all matters to a new employee? If so, will it be legal to dismiss her at her own request (clause 3, part 1, article 77 of the Labor Code) in 2017?

Answer

According to paragraph 5 of Art. 77 of the Labor Code of the Russian Federation, dismissal at will, that is, in connection with a transition to a new organization (obtaining a position), is possible only if a certain procedure is followed. It necessarily stipulates that the dismissed accountant will request written notice from the new employer. The document must indicate that she is being given a position, and the manager is ready to accept her upon transfer.

This information is necessary, since in the future it will be entered into the work book in the new organization. Clause 5 of Art. 77 of the Labor Code of the Russian Federation states: “the basis for termination of an employment contract is the transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position).”

The next condition is that the employee had to write a written statement addressed to the director with a request to dismiss her in connection with the transfer. If two conditions are not met (no notification and application), another rule comes into force. The manager has the legal right to dismiss her, citing clause 3, part 1, article 77 of the Labor Code, the provision of the article is also valid in 2017: “The basis for termination of an employment contract is termination of the employment contract at the initiative of the employee.”

As for working off, from the moment of submitting an application for dismissal (no matter on what basis), the employee is required to work for 14 days. But according to new amendments introduced in 2017, dismissal at will without working off is still possible. True, for this you need to understand whether your employee will be classified in the so-called “preferential category”. According to paragraph 3 of Art. 80 of the Labor Code of the Russian Federation: “in cases where an employee’s application for dismissal on his initiative (at his own request) is due to the impossibility of continuing his work (enrollment in an educational organization, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts containing labor law norms, local regulations, terms of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee’s application.”



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