The procedure for voluntary dismissal is a procedure that involves several simple but mandatory actions. An employer has no right to retain an employee, even if he is a very valuable employee. He must write an order, make a calculation and issue a work book.

Any employee has the right to resign at any time of his own free will, by virtue of Article 80 of the Labor Code of the Russian Federation. The employer has no right to interfere with this and burden such an employee with anything. We will tell you in this article how to correctly formalize the dismissal of an employee at his own request on the basis of clause 1, part 3, article 77 of the Labor Code of the Russian Federation. This will be step-by-step instructions for dismissing an employee at his own request.

1. Letter of resignation

The procedure for terminating the contract at the will of the employee begins with him writing an application, which must be submitted at least two weeks before the planned date of separation. The law stipulates that the employer must be notified of dismissal in writing. However, the form of such a warning is not established by law, so it is usually simply a notice of dismissal submitted in advance. It can be handwritten or typed on a computer. The form is arbitrary, but the requirements for its content must be observed. If the application is drawn up incorrectly, problems may arise, first of all, for the organization. Up to the recognition of dismissal at the initiative of the employee as unlawful, as in the absence of a written statement confirming his will. There are enough such examples in the law enforcement practice of Russian courts.

To avoid unnecessary and unnecessary difficulties, the rules for dismissing an employee at his own request provide for the following simple nuances to be observed:

• The name of the organization and full name must be indicated. its manager to whom the document is addressed (or the name of the person authorized by the manager to make a decision on dismissal);
• the date of compilation must be indicated;
• the wording from which it follows that the employee wants to be dismissed at his own request must be extremely clear: “I ask you to dismiss”, “I ask you to terminate the employment contract at your own request” or “I warn you of my intention to terminate the employment relationship at your own request” and the like;
• The date of the last working day must be indicated (preferably without the preposition “from”, because if you write “from May 17” instead of simply “May 17”, different interpretations may arise as to which date is considered the last working day);
• the application must be signed personally by the person on whose behalf it was written (without a personal signature it has no legal force and is not a basis for dismissal).

An approximate example of a correctly drawn up resignation letter of one’s own free will looks something like this:

General Director

LLC "New Telephone"

Ivanov I.I.

No. 15/61k (incoming number assigned to the document by the organization)

STATEMENT

About voluntary dismissal

In accordance with Article 80 of the Labor Code of the Russian Federation, I ask you to dismiss me at my own request on May 17, 2019.

Sales Department Specialist PERSONAL SIGNATURE M.S. Koshkin 05/03/2019

An employee can submit an application for dismissal of his own free will in person or send it by mail: the authorized bodies speak about this, in particular (Rostrud Letter No. 1551-6 dated 09/05/2006). Therefore, if the employer does not fire the employee because he did not bring him the resignation letter in person, he will lose the case. It should be borne in mind that in the event of a dispute, the absence of this document may become the basis for reinstatement of the employee to his previous place.

The employee, at his own discretion, can provide other information, for example, ask for the leave he is entitled to, as well as provide additional information about the reasons for his decision. The main thing is that the additional information does not contain indirect indications that the employee’s dismissal was forced. After all, if a dispute arises, any vague wording can work against the organization, which can lead to reinstatement and payment of compensation for forced absence. The courts express a fairly clear position on this matter, which is directly expressed in paragraph 22 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2.

And don’t forget that the employee has the right to withdraw his application up to the day of dismissal: this issue is strictly regulated Article 80 of the Labor Code.

2. Notice period for dismissal

The warning period for dismissal at the initiative of an employee is, as a general rule, two weeks. In some cases it may be increased or decreased:

• up to three calendar days - in case of dismissal at the employee’s own request during the probationary period (Part 4 of Article 71 of the Labor Code of the Russian Federation);
• up to one month if the head of the organization resigns ();
• up to one month - upon dismissal of an athlete or coach with whom an agreement was concluded for a period of more than four months (Part 1 of Article 348.12 of the Labor Code of the Russian Federation).

Also, the warning period may exceed one month, if provided for by the TD. At the same time, in Labor Code of the Russian Federation there is not a word about the fact that during the warning period it is necessary to perform one’s work functions. Therefore, the application may well be submitted while on vacation or sick leave. The period provided for warning is not extended in these cases, but for the procedure of dismissal at one’s own request, it is necessary to leave sick leave. However, this period does not start counting from the date specified in the application, but from the date when the employer receives it. This means that the time required for the delivery of papers by mail must be added to the notice period.

In addition, by mutual agreement of the parties, you can dismiss at your own request before the end of two weeks or without working off. Sometimes such urgent dismissal is mandatory; it is regulated by Part 3 of Article 80 of the Labor Code of the Russian Federation and occurs:

• when a citizen is enrolled in an educational institution;
• when an employee retires;
• when an employee is on maternity leave for up to 1.5 years;
• in case of violations on the part of the employer (for example, delay of wages, refusal to provide leave).

Violations from the last paragraph must be officially recorded by specialists of the State Labor Inspectorate, a trade union, a labor dispute commission, or in court at the request of an employee. This procedure is recognized as correct in paragraph 22 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2.

3. Order and entry in the work book

After the allotted period has expired (or was legally reduced), the day of voluntary dismissal begins. The management of the organization must issue an order that will legalize voluntary dismissal; An entry in the work book must be made on the basis of this particular order; the relevant details and dates must be entered into it.

The order forms (T-8 and T-8a) are approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1. In this case, form T-8 must be filled out when dismissing one employee, and form T-8a - when dismissing several employees at the same time. You can also write an order in any text form, the main thing is to comply with all the requirements imposed by law on primary documents: indicate the name, date of preparation, details of the organization and reasons for preparation. Filling out an order is usually not difficult. The main thing is not to make mistakes in your full name, position and, especially, the date of dismissal. It must be indicated exactly as it was written in the application: if the employee wrote “from May 17,” then he must be fired on May 16 and this date must be indicated in the order. If it is simply written “May 17”, then the date should be set to the same. A correctly completed order will look like this:

The dismissal order must be signed by the head of the organization, and the persons mentioned in it must be familiarized with a personal signature. After the order is ready, you can fill out the work book. A record of voluntary dismissal is made in it, the details of the order are entered as a basis, after which the record is certified by the signature of an employee of the HR department with a transcript and a round seal of the organization (if any). At this point, the documentation of personnel documents can be considered complete. Next, an employee who quit of his own free will must receive a pay slip and personalized accounting documents from the Pension Fund, but these are usually prepared by the accounting department.

4. Calculation and documents in hand

The management of the organization is obliged to issue all documents in connection with the employee's voluntary dismissal on the last working day. Failure to comply with this requirement is a gross violation of labor laws and entails serious sanctions for the employer. The main document that must be given is the work book. If for some reason this is not possible, the employer is obliged to notify the former employee of the need to pick it up, after which, if the person fails to appear or with the consent of the person, it can be sent by mail. In addition, the employee needs to return his medical record, documents on education and qualifications (if they were stored at the enterprise), as well as issue a 2-NDFL certificate and an SZV-STAZH extract, which in 2019 replaced the extract from the SZV-M report.

There are also a number of documents that are not required to be issued on the day of dismissal, but the dismissed person may need them and must be provided based on his written request. These forms, in particular, include the following:

• an employment contract (although a second copy must be handed over at the time of employment);
• orders related to labor activity (hiring, promotions and transfers, bonuses, dismissal);
• certificate of salary;
• certificates of insurance contributions to funds.

The former employer has three days to prepare such additional papers, according to the provisions of Article 62 of the Labor Code of the Russian Federation. An employee can apply for them even after his dismissal at his own request, when he needs any certificates or local acts.

In addition to documents, a full payment must be made on the last working day, the amount of which includes wages for days worked, compensation for unused vacation and other payments. Severance pay for such a reason for dismissal is usually not paid. But if such a possibility is specified in the employment contract, the organization’s management can do this. However, in this case the amount is not compensatory and is subject to personal income tax and insurance contributions.

Article 81 of the Labor Code provides a complete and detailed list of reasons why an employment relationship with an employee can be terminated (clauses 1-3, 5-6, 11-12 - suitable for all categories of workers, and clauses 4,7-10, 13 – in relation to certain groups of employees (management staff, chief accountant, teachers, educators, etc.)). Labor legislation also guarantees that no employee can be deprived of his job without reason.

In this article we will provide detailed step-by-step instructions for dismissing an employee.

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The management of an organization is faced with a difficult task when the decision to dismiss has already been made - how, in fact, to remove an employee from his position painlessly and without consequences for both parties, because the number of legal appeals from dissenting dismissed employees is currently very large.

And most cases are resolved in favor of the employee, which results in additional financial losses for the company. Therefore, the employer will have to stock up on knowledge, patience and time in order to carry out the procedure for terminating the employment relationship as competently as possible.

Dismissal at your own request

Before dismissing an employee under the article, you need to advise him to separate “amicably”, namely, offer to write a statement of his own free will (clause 3 of Article 77 of the Labor Code of the Russian Federation). It is necessary to use all your art of persuasion so that the employee himself takes a pen and writes the required statement. It is best to push the employee to take this step by giving him the right one.

You can, for example, say that the company cares about his future and upon dismissal the best recommendations will be presented, and other employers will more favorably accept a new employee who is dismissed of his own free will rather than under an article. Some companies go further and even issue an additional bonus for an amicable separation. The main thing is not to incite conflict or start a quarrel, which, in the future, can work against you.

If the employee refuses to write a statement, then in this case you can push him to do this, but here you should be careful and not go beyond the bounds of decency, so that the actions are not subsequently qualified as bullying of the employee by the employer and forced dismissal. From this moment a very delicate game begins.

For example, to speed up the decision-making process, you can deprive an employee of a bonus, or catch him in a disciplinary violation and issue an order, warning him that a repeated violation will be entered into his personal file. Usually, after reading the first warning, the employee quickly writes a statement on his own.

Dismissal of an employee

So, the hardest part is over and the paper is written. What's next?

1. From the moment the application is written, the employee is given two more weeks to work, but by agreement he can leave earlier.
2. An order to terminate the employment contract is issued, which is certified by the signature of the manager.
3. The employee gets acquainted with the order, putting his signature on it.
4. On the last day of work, a record of dismissal is made in the work book and on what basis it was made.
5. Full payment is made to the employee.
6. A copy of the work book is made for the archive (personal files are stored in the archive for 75 years).
7. The book is issued to the employee on the day of dismissal.
8. An entry is made in .

The main rule of amicable termination of employment relationships is to give the employee the right to be the first to leave of his own free will, since all other methods can negatively affect the employee’s future work activity, as well as the reputation of the enterprise in the event of litigation.

Dismissal of an employee is legal and without consequences

If, contrary to belief or out of principle, the employee never wrote a statement, but it is necessary to part with him, then the following dismissal mechanism is activated.
Article 81 of the Labor Code of the Russian Federation takes into account the reasons why an employer can legally part with its specialist.

Let's consider cases that fit most categories of workers.

1. The liquidation of a company on a voluntary or compulsory basis, or the termination of the enterprise’s activities occurs as a result of a bankruptcy procedure. The same applies to individual entrepreneurs.
2. Incompetence of an employee based on certification results or lack of qualified knowledge, illiteracy.
3. State of health.
4. Availability of disciplinary action; failure to fulfill labor obligations assigned to the employee.
5. One-time gross violation of one’s labor functions.
6. Loss of trust from management.
7. Committing an immoral act that is contrary to the principles of the position held. As a rule, teachers, educators, and pedagogues are fired under this item.
8. Actions of management and accounting that resulted in financial and property losses for the company.
9. Providing knowingly false and forged documents when applying for a job.

Let's take a closer look at the most popular items.

Dismissal of an employee upon liquidation of a company

Liquidation of a company can be either voluntary or forced by decision of the relevant authorities. A company can also close because it is declared bankrupt.

In this case, the basis for dismissal is considered to be clause 1 of Art. 81 Labor Code of the Russian Federation. The process of terminating an employment relationship occurs as follows:

• Two months before the upcoming dismissal, the manager notifies employees of his decision.. A notice or notice is drawn up and presented to employees under their signature. If the employee refuses to sign, then a corresponding note is made on the notice.
• At least two weeks before the first dismissal, the employer must notify the Employment Center.
• Then the corresponding reports are submitted to the Pension Fund of the Russian Federation and the Federal Insurance Service.
• All missing contributions are paid for employees within 15 days.

This clause allows the dismissal of all employees, including women on maternity leave, people with health problems, disabled people, and people with family burdens.

Dismissal of an employee due to staff reduction

Forming a staff and normalizing the number of employees of an organization is the right of the manager. He recruits as many workers as he sees fit. In the event of a trial, the judge does not have the right to challenge the appropriateness of the manager’s decision, but is obliged to check whether the reduction was actually made or not.

When staffing is reduced, priority in preserving jobs is given to more experienced and highly qualified employees. Pregnant women, as well as women on maternity leave, cannot be fired.

The dismissal procedure is identical to that described in the previous paragraph.

Dismissal of an employee for health reasons

When hired for a position, an employee has the right to present to the employer a medical report on his state of health.

It seems that everything is clear with this point, but there are also pitfalls here, due to which the dismissal of an employee will be unlawful, namely:

• Temporary disability, for example.
• Having a chronic disease.
• Disability.

If all this does not in any way affect the quality of the work he performs, then it is impossible to dismiss an employee on this basis. Otherwise, the employee’s calculation will be legitimate, for example, if a person’s existing disease poses a threat of harm to the health of other employees.

Dismissal of an employee based on certification results

Removal from work on this basis must be confirmed by the results of a previously conducted certification at the enterprise.

The following categories of employees are subject to mandatory verification:

• Scientific workers.
• Prosecutor's office employees.
• Customs officers.
• Heads of state unitary enterprises.

There is no required form for certification. This could be a test or... Members of the certification commission must be competent in the issue being tested and be able to fairly assess the employee’s knowledge. Management is not required to be a member of the commission.

The result of the certification is issued in a separate order.

If an employee fails at the first certification, then it is worth giving him a second chance. If the second time is also negative, then it is best for management to offer the employee another, less paid and prestigious position. If a person refuses the offer, then he can be safely fired.

A person can challenge his dismissal in court – and even win in court! – in the event that the employer decided to conduct the exam suddenly, without familiarizing the employees with their plans. Then according to Art. 9 of the Labor Code of the Russian Federation, the results are declared invalid.

Dismissal for violation of labor discipline

If the dismissal of an employee occurs under paragraph 5 of Article 81 of the Labor Code of the Russian Federation, then one important condition must be met - the employment contract must specify the start and end times of service, otherwise it will be very difficult to record the employee’s lateness to his workplace.

1. All tardiness must be accurately recorded on the Time Sheet.
2. If delays become systematic, a disciplinary commission is convened.
3. An act is drawn up.
4. It is necessary to receive from the latecomer. If it is not there, or the employee refuses to provide an explanation, then a statement of refusal is drawn up and certified by the signatures of members of a commission consisting of 3 independent persons, for example, a security guard, a cleaning lady and a secretary.
5. Based on the report, a reprimand is issued to the late employee.

The only problem here is that a remark cannot be sufficient grounds for dismissal, so the remark should be turned into a reprimand. This is where you can use the golden rule - two comments and a reprimand followed by dismissal.

All documents (memos and comments) must be carefully selected and collected so that in the event of a trial, you do not lose face and prove the employee’s irresponsible attitude towards his duties. Witness testimony will also not be superfluous.

The opinion of the trade union committee should be taken into account if the dismissed employee was a member of it.

Dismissal for a single gross violation

Clause 6 of Art. 81 of the Labor Code of the Russian Federation makes it very clear what can be considered such a violation:

• Absenteeism.
• An employee coming to work in a state of drug, alcohol or toxicological intoxication, and it does not matter whether he reached his workplace or not..
• Disclosure of trade secrets.
• Wasting, stealing or stealing, damaging or destroying business property.
• Violation of labor safety rules, which resulted in an accident, accident or catastrophe, or created a threat to their occurrence.

The most common reasons are the first two points.

You can dismiss an employee if he was absent from the workplace for 4 or more hours without a valid reason. A good reason is a subjective category, which is assessed and determined by the manager. Mostly this is a fire, illness of a close relative, accident, or broken down vehicle.

Dismissal due to loss of trust

The employer needs to take into account that under this clause, employees directly responsible for the storage of monetary and material assets serving them may be removed from their positions. Even when establishing the fact of extortion, bribery, theft and other illegal actions.

Therefore, employees under whose responsibility material, commodity and monetary values ​​were not entrusted should be dismissed under clause 7 of Art. 81 of the Labor Code of the Russian Federation is impossible. The employer must prove the fact of theft or other violation with documents, for example, provide photo, video or audio evidence, or witness testimony.

Dismissing an employee: solving the problem peacefully

Summarizing all of the above, we can draw one important conclusion: no matter how much you want to fire an employee, even if you have enough grounds in your hands, always keep a cool head and sober thinking. Emotions are your worst enemy in this matter.

• Always reserve the right for the employee to leave on his own and in every way encourage him to resign on his own initiative.
• Complying with all formalities, preparing and filing all documents correctly is not as easy as it might seem at first.
• A dismissed and offended employee can contact regulatory authorities, who will conduct an on-site inspection based on his statements. In addition, an employee may defect to competitors or divulge trade secrets.
• If the case goes to court, then for the duration of the trial (from six months to two years), the court may reinstate the plaintiff in his position so that he has the opportunity to earn money during this time. As a result, the staff will again have a person who undermines production and labor discipline.
• If you lose, you will be responsible for additional unplanned expenses, which can be quite significant. Salary for forced absence - once. Moral compensation - two. Legal costs - three. Services of lawyers and lawyers - four. Severance pay and compensation that could have been paid for much less than the amount received.

Therefore, it is best for both parties not to bring the matter to court and resolve everything peacefully.

It would seem that what could be simpler than voluntary dismissal? The employee submits an application, HR officers formalize the dismissal. However, even here sometimes questions arise. Let's figure it out.

On the one hand, HR departments do everything possible to reduce staff turnover and use various tools to minimize the number of dismissals among those employees who are suitable for the organization. On the other hand, when it becomes clear that the employee has not “fit in,” the actions of the personnel officers become diametrically opposed - the employee is made to understand that it is time for him to leave the organization. In this case, it is especially important to formalize the dismissal in accordance with the law and avoid mistakes.

Let's look at how to properly fire an employee at his own request.

STEP 1: WE RECEIVE A TERMINATION STATEMENT FROM THE EMPLOYEE AND CHECK IF THERE ARE ANY PECULIARITIES IN THE WARNING DATE

The decision to resign must be made voluntarily by the employee. If the management of an organization urgently invites an employee to write a statement “of his own free will,” threatening him with dismissal under an article (for absenteeism, professional incompetence, etc.), the employee can go to court and prove that he was forced to write a resignation letter.

If an employee is inclined to conflict, it is better to discuss his dismissal in the presence of witnesses loyal to the employer, who, if the employee goes to court, will be able to confirm that there was no pressure on the employee.

So, the employee decided to quit. Now you need to write an application. In accordance with part one of Art. 80 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), the right to terminate an employment contract arises for an employee if he has warned the employer in writing.

The employee writes a resignation letter of his own free will in any form. But there are points that need to be checked so that problems do not arise in the future.

WE CHECK THE APPLICATION FOR CORRECTNESS

■ The employee must write the application himself. Both forms and handwritten statements are suitable - the main thing is that the signature is handwritten.

If the employee did not write the application or another person wrote the application for the employee (for example, a relative or HR specialist), this will be a violation and may lead to reinstatement at work (see, for example, the Appeal ruling of the Nizhny Novgorod Regional Court dated March 29, 2016 in case No. 33-3645/2016). If an employee cannot appear to write a resignation letter, he must issue a notarized power of attorney for someone or send the application by mail.

■ The application must contain a clear request for dismissal(“I ask you to fire me”, “I ask you to terminate the employment contract”, etc.). It happens that employees write complaints about working conditions, and the employer perceives this complaint as a request for dismissal. Therefore, if you receive such a document, ask the employee to clarify (and add) what exactly he is asking for - to fire him or to draw attention to the problems that, in his opinion, have arisen.

■ The employer must have the original application, a copy or scan will not work. If the original application for dismissal is lost, then it is also unlikely to be able to prove the legality of the dismissal (see, for example, the Appeal ruling of the Moscow Regional Court dated March 24, 2014 in case No. 33-6364/2013). This also applies to remote workers if there is no electronic digital signature (Article 312.1 of the Labor Code of the Russian Federation).

■ The application must indicate the exact date of dismissal. This is important for determining the warning period.

WE COMPLETE AN APPLICATION DEPENDING ON THE SITUATION

1. The employee submits an application without indicating the date of dismissal, but indicating the date of filing(Example 1).

The employee submits an application on 05/17/2017 (Wednesday), according to the Labor Code of the Russian Federation, the last day of his work (day of dismissal) will be 05/31/2017 (Wednesday), while non-working days and holidays are included in the notice period for dismissal. If the application contains a filing date, the employer applies the rules provided for in Art. 80 of the Labor Code of the Russian Federation, and dismisses the employee after two weeks.

Judicial practice confirms: if the employee does not indicate the date of dismissal in the application, the employer has the right to dismiss him in this case only after 2 weeks (see the Appeal ruling of the Omsk Regional Court dated January 27, 2016 in case No. 33-574/2016).

2. The employee submits an application indicating the date of the last working day.

Employees sometimes indicate in the application the date of the last working day, calculated independently based on the 2-week notice period (Example 2). However, the calculation is not always correct, which leads to misunderstandings. For example, an employee calculated that his last working day will be 05/30/2017 and has already agreed with the new employer to start work on 05/31/2017. However, he miscalculated - on May 31 he must work at his previous place of work. Therefore, before writing an application, it is better for the employee to calculate his last working day together with the personnel officer.

The text of the statement could be like this:

3. The employee wants to quit before two weeks and indicates in the application the desired date of the last working day.

Often, employees turn to the employer with a request to dismiss earlier, before the expiration of the notice period. In this case, the employee usually indicates the date of dismissal in the application.

Indeed, an employment contract can be terminated before the expiration of the notice period if both parties agree.

■ If the manager agrees so that the employee does not work during the notice period, he issues an appropriate visa (Example 3).

■ If the manager does not agree dismiss an employee before the expiration of the notice period, and issued such a visa (Example 4), then the employee will have to work for two weeks.

4. The manager wants to fire the employee as early as possible so that he does not have to work for two weeks.

Sometimes the employer himself wants to fire an employee before the expiration of the notice period. However, in this case, the law is on the employee’s side - he has the right to disagree with the manager’s proposal to leave the organization early and can insist on dismissal only after the warning period has expired.

If the employee was fired earlier than two weeks from the date of warning without mutual consent of the parties, then the dismissal may be considered illegal (see the Appeal ruling of the Supreme Court of the Republic of Mordovia dated February 11, 2016 in case No. 33-254/2016).

5. The employee wishes to go on vacation before resigning and then resign without going to work.

Sometimes an employee wants to go on vacation and quit without going to work. We are talking about vacation followed by dismissal. Then this must be indicated in the application (Example 5).

Pay attention! If an employee submits a separate application for resignation and a separate application for leave, this is no longer a vacation with subsequent dismissal, but two separate personnel processes that are not related to each other. And they are each designed in their own form.

WE USE APPLICATION FORMS

If the organization has a high staff turnover, it is better to use ready-made employee application forms to avoid problems with determining the date of dismissal. (Example 6).

The wording may be different:

WE DETERMINE THE DAY OF DISMISSAL IN COMPLEX CASES

■ If the day of dismissal is a non-working or holiday. You can be fired these days. Another thing is that it is inconvenient. If possible, it is better to indicate the working day on the last working day in the application. Otherwise you will have to:

Dismiss the employee on the day specified in the application - that is, involve HR and accounting employees to work on a day off;

Dismiss the employee on the next working day (see Appeal ruling of the Arkhangelsk Regional Court dated August 11, 2014 in case No. 33-3916).

■ If the employee is sick on the day of dismissal. If an employee is sick on the day of dismissal, the dismissal will be legal (see Appeal ruling of the Volgograd Regional Court dated February 13, 2015 No. 33-1664/2015). In this case, temporary disability benefits are paid on the basis of a properly executed certificate of incapacity for work provided to the employer.

PLEASE NOTE

Temporary disability benefits are paid if an employee falls ill while still working and continues to fall ill after dismissal. Also, benefits are paid if the former employee fell ill after dismissal, but within 30 calendar days after the date of dismissal (Part 2, Article 5 of Federal Law No. 255-FZ of December 29, 2006 “On compulsory social insurance in case of temporary disability and in connection with with motherhood”, as amended on July 3, 2016, hereinafter referred to as Federal Law No. 255-FZ). The benefit is paid if the former employee provides the employer with a certificate of incapacity for work.

STEP 2. REGISTER THE EMPLOYEE’S APPLICATION

On the application it is worth indicating the date and number of the incoming document, this will avoid disputes about the date of receipt of the application.

If the situation is potentially conflicting, the employee may require that the incoming number and date be placed on the copy of the application. It makes no sense to refuse to mark receipt of the application on the copy of the application that remains with the employee, since he will be able to receive such confirmation by sending his application by mail. Refusal will only lead to a deterioration in relations with the employee and conflict.

If the employee sent the application by mail, by registered mail with return receipt requested, then the date of its receipt will be considered the date of notification of delivery of the letter. In this case, the notice period for dismissal is counted from the day following the date of receipt of the letter of application.

PLEASE NOTE

The warning period is counted from the moment the postal notice is signed. Even if the organization’s correspondence goes through a complex path (first registration, then distribution among departments) and reaches the contractor a few days after receiving it by mail, this does not change the warning period.

If the application was sent by simple letter, the deadlines will depend on the dates on the postmarks. For example, if a letter arrived at the post office on May 15, 2017, and the postmark reflects this date, then the warning period starts from this moment. In this case, the organization may receive the letter later.

Sometimes the registration procedure itself is delayed, which also increases the risks of untimely dismissal. Therefore, it is important that the secretary registers incoming documents as soon as they arrive at the organization. The log book can later be presented as evidence of the actual date of receipt of the document.

STEP 3: WE MAKE SURE THAT NO APPLICATION FOR WITHDRAWAL OF THE TERMINATION APPLICATION HAS BEEN RECEIVED

Even if an employee has written a letter of resignation, he has the right to withdraw his letter of resignation at any time before the expiration of two weeks, including on the last working day (that is, on the day of dismissal) even after the end of the working day - that is, until 23 hours 59 minutes .

■ About the withdrawal of the application. The form for withdrawing a resignation letter may be arbitrary. However, the legislation does not directly indicate in what form an employee can submit a review - written or oral.

Therefore, if there is no written revocation, the employee can prove the fact of revocation of the resignation letter in court in other ways. For example, attract witnesses who will confirm that he submitted an application orally, but the personnel officer did not accept the application.

However, written feedback is still preferable (Example 8).

The employee has the right to send feedback by mail before the expiration of the notice period.

At the same time, some courts believe that it is enough for the employee to send the application before the deadline (see the ruling of the Moscow City Court dated April 17, 2014 in case No. 4g/7-2982/14), while others believe that it is necessary for the employer to receive such an application before the end of the period (see the Appeal ruling of the Supreme Court of the Chuvash Republic dated September 29, 2014 in case No. 33-3461/2014). In any case, the court will check whether the employee really wants to stay or is trying to abuse his right (see the Appeal ruling of the Moscow City Court dated October 8, 2015 in case No. 33-33824/2015).

■ When does an employer have the right not to accept the withdrawal of an application? The review may not be taken into account if another employee is invited in writing to replace the employee by way of transfer (part four of Article 64 of the Labor Code of the Russian Federation). Employers often do not pay attention to the fact that the new candidate must already have been fired from his previous job. Then, indeed, the withdrawal of the application can be refused, but in other cases the court will reinstate the employee at work (see Appeal ruling of the Stavropol Regional Court dated July 12, 2016 in case No. 33-4148/2016).

Dismissal at one's own request is considered illegal if the employee has withdrawn his application, but another employee has already been invited to replace him and is in an employment relationship with the same employer (see the ruling of the Supreme Court of the Russian Federation dated May 31, 2013 No. 5-KG13-43).

STEP 4: FILE A DISMISSAL ORDER

Termination of an employment contract is formalized by order of the employer (part one of Article 84.1 of the Labor Code of the Russian Federation) no later than the last day of work of the employee. The dismissal order is drawn up in form T-8, approved by Decree of the State Statistics Committee of January 5, 2004 No. 1, or in the form of the organization.

If there is no order on the last working day and the employee continues to work the next day, then the dismissal did not take place, even if the employee submitted an application.

You can place an order earlier, that is, not on the last day of work, but, for example, 2-3 days or even 1-2 weeks in advance. This will not be an error (see, for example, the Appeal ruling of the Supreme Court of the Komi Republic dated October 29, 2015 in case No. 33-5945/2015).

PLEASE NOTE

If an employee has submitted a letter of resignation, but the employer has not issued an order, the employee, having worked his last day, has the right not to go to work the next day.

If the employer did not issue an order, that is, violated the procedure for registering dismissal, then the employee can recover compensation for moral damage (see, for example, the Appeal ruling of the Krasnoyarsk Regional Court dated August 26, 2015 in case No. 33-9181).

A dismissal order may look like this (Example 9).

The employee must be familiarized with the dismissal order on the last working day against signature. At the request of the employee, the employer is obliged to provide him with a duly certified copy of the specified order (instruction).

If for some reason the employee refuses to familiarize himself with the order or does not appear to sign the order, then invite two witnesses and draw up an act of refusal to familiarize himself or an act of the employee’s failure to appear to sign the order (Example 10).

In addition, in the order below the employee’s information line, in case of his refusal or failure to appear, the following should be written:

STEP 5: COMPLETING A WORKING TIME CARD

A time sheet (on forms T-12, T-13 or on a form approved by the organization) must be filled out for each employee on the day of dismissal (Example 11). It is better to do this in advance (2-3 days in advance) so that the accounting department has time to calculate the dismissal person and transfer wages and compensation for unused vacation no later than the day of dismissal.

STEP 6: CHECKING THE DELIVERY OF PROPERTY AND DOCUMENTS

The employee must return the company's property, documents, and hand over the files according to the acceptance certificate no later than the day of dismissal. If an employee refuses to transfer documents or property, a corresponding act should be drawn up.

Often, employers formalize the return of property and documents in the form of a bypass sheet - a document in which the employee signs that he has handed over this or that property or documents (Example 12).

The HR department checks (V) the departments whose managers must sign the worksheet:

Immediate manager, personnel department, accounting, security service (pass) - for all employees;

IT management, administration department (fuel card), legal department - for engineering and technical service employees.

Warehouse, occupational safety specialist - for workers;

General Director - for deputy directors and heads of departments.

The legislation does not in any way regulate the issue of handing over property and documents with the exception of financially responsible persons. Upon dismissal of a financially responsible person, the organization is obliged to conduct an inventory with proper documentation of its results (clause 1.5 of the Guidelines for the inventory of property and financial obligations, approved by Order of the Ministry of Finance of Russia dated June 13, 1995 No. 49, as amended on November 8, 2010). For example, you can draw up an act of acceptance and transfer of affairs and property (Example 13).

Therefore, we believe that the employer can use a bypass sheet to confirm the employee’s return of property and documents. But the employer has no right to delay the dismissal of an employee if he has not returned property or documents. In controversial situations, the employer must file a lawsuit against the employee for the return of property or documents.

Before the employee leaves the organization, check whether the employee’s signature is on the documents that he was supposed to sign, in particular:

On the employment contract and additional agreements to it (a copy of the organization), job description (if any);

On all orders regarding the employee;

In sheets (magazines) familiarization with local regulations of the organization affecting the employee’s labor responsibilities.

If there is no signature in any documents, you must ask the employee to sign.

STEP 7: FILL OUT AND ISSUE THE EMPLOYMENT BOOK

The employer is obliged to issue the employee a work book on the day of dismissal. An entry on the termination of the employment contract is made in the work book on the last day of work, certified by the signature of the responsible employee, the seal of the employer and the signature of the dismissed employee (clause 35 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by the Decree of the Government of the Russian Federation dated 04/16/2003 No. 225, hereinafter - Rules for maintaining and storing work books) (Example 14). If the employee refuses to sign the work book, it is necessary to draw up an act (Example 15).

If the employee does not show up to pick up his work book, he should be notified before the end of the day of dismissal about the need to pick up the work book or give consent in any written form to send it by mail (part six of Article 84.1 of the Labor Code of the Russian Federation). The notice must be sent by a certified letter with return receipt requested to all known addresses of the employee.

TO THE ATTENTION OF THE EMPLOYEE

If an employee cannot appear to receive a work book, he has the right to ask the employer to send it by mail to the address specified by the employee. To do this, you must submit an application to the employer in person or send it by mail with a list of attachments (Example 16).

Having received the work book, the employee signs in the book of registration of work books and inserts for them (clause 41 of the Rules for maintaining and storing work books), which will be evidence of its issuance. If the work book was sent by mail, you must make a note about this in the accounting book and indicate the date of sending. You can also specify postal receipt numbers.

Vacation followed by dismissal. In this case, the date of dismissal will be the last day of vacation (part two of Article 127 of the Labor Code of the Russian Federation).

When granting leave with subsequent dismissal, the work book is issued on the last working day before the start of the leave. However, the date of dismissal must be entered in the work book in accordance with the dismissal order. The final payment is also made on the last working day (decision of the Constitutional Court of the Russian Federation dated January 25, 2007 No. 131-О-О, letter of Rostrud dated December 24, 2007 No. 5277-6-1).

STEP 8: WE REQUEST A PERSONAL EMPLOYEE CARD

On the last working day, information about dismissal must also be entered into the employee’s personal card (unified form No. T-2 or a form approved by the organization). In this case, the employee must put his signature under the dismissal record (third paragraph of clause 41 of the Rules for maintaining and storing work books) (Example 17).

STEP 9: PAYMENT WITH THE EMPLOYEE

The employer is obliged to make a calculation (Article 140 of the Labor Code of the Russian Federation). This means that the organization must pay the employee all amounts due on the day of dismissal, namely: salary for the period worked, bonuses, allowances and other payments. The employer is also obliged to pay compensation for all unused vacations (part one of Article 127 of the Labor Code of the Russian Federation).

If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment (part one of Article 140 of the Labor Code of the Russian Federation).

The employee must be settled even if there is a dispute about the amounts to be paid. For example, the employee did not return the property, and the organization wants to withhold its value from the salary, or the manager believes that the employee did not deserve a bonus this month. The employer is obliged to pay at least the undisputed amount on the last day of work (day of dismissal) (part two of Article 140 of the Labor Code of the Russian Federation). On the day of dismissal, the employee must receive a payslip indicating all amounts paid.

STEP 10: ISSUE THE EMPLOYEE A CERTIFICATES

Check whether the accounting department has issued certificates to the employee in accordance with the law:

Certificate of the amount of earnings for which insurance contributions to the Social Insurance Fund were calculated (clause 3, part 2, article 4.1 of Federal Law No. 255-FZ);

Certificate of the amounts of accrued and paid insurance contributions to the Pension Fund of the Russian Federation (Article 11 of the Federal Law of April 1, 1996 No. 27-FZ “On individual (personalized) accounting in the compulsory pension insurance system,” as amended on December 28, 2016).

Other certificates and copies of documents at the request of the employee.

Why is it so important to follow the given step-by-step algorithm? If you violate the procedure, the employee will have a reason to challenge his dismissal in court. If the court turns out to be on the employee’s side, the employer will have to:

Reinstate a dismissed person at work (Article 394 of the Labor Code of the Russian Federation);

Pay the average salary for the period of forced absence from the moment of dismissal until the moment of reinstatement (Article 394 of the Labor Code of the Russian Federation);

Compensate for moral damages for illegal dismissal (Article 237 of the Labor Code of the Russian Federation);

Reimburse the employee's legal expenses (lawyer costs);

Pay interest for each day of delay in payment (Article 236 of the Labor Code of the Russian Federation);

Pay the earnings not received during the delay in issuing the work book (Article 234 of the Labor Code of the Russian Federation).

From January 1, 2013, the forms of primary accounting documents contained in albums of unified forms of primary accounting documentation are not mandatory for use.

The reasons for separation and termination of the contract may be different:

a person decides to change jobs;

retires;

moved for permanent residence to another region;

or he is not satisfied with the salary, etc.

The employee is not required to explain why he is leaving. This does not in any way affect the procedure for terminating the contract or the obligations of the parties.
The procedure for voluntary dismissal in 2019 has not changed and remains the same, the main stages are as follows.

Step 1. Writing an application

It all starts with the worker submitting a resignation letter. During this period, he has the right to change the decision and retain his place. An employer is prohibited from persuading or otherwise influencing a worker’s intention to leave the team. Moreover, if an employee proves in court that the employer, through his actions, forced him to leave the organization, he will be able to be reinstated in his position with payment of monetary compensation (see subparagraph “a” of paragraph 22 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2). In other words, the employee is not required to disclose the reasons for dismissal at his own request - only to notify of his intention.

Step 2. Issuing an order

Upon expiration of the warning period, an order to terminate the employment relationship is issued. The basis for it in this case will be paragraph 3 of Article 77 of the Labor Code of the Russian Federation.
The employee is introduced to the document upon signature. The rules for dismissing an employee at his own request also provide that, if necessary, he is given a copy of the order.

Step 3. Preparing documents

These include:

• a certificate of the amount of earnings two years before leaving;
• work book and personal card () of the worker;
• note-calculation (according to form No. T-61).

An example of a calculation note according to form No. T-61

All three documents are given on the day of contract termination.

Step 4. Final calculation

The procedure for dismissing an employee at his own request implies that the person must be paid on his last working day (see).

Rights and obligations of the employer

According to the law, a citizen who wants to quit submits an application to management, specifying the date from which he intends to stop working. However, the timing of voluntary dismissal may vary.
As a general rule, the application must be written at least 2 weeks before the expected date of departure. This time is given to the business to find a replacement for the departing employee. But how much to work off upon dismissal is decided directly by the employer.
The law allows him to release a subordinate without working, but there are categories of employees whom the employer is obliged to release on the dates indicated in their applications:

A person who retires or switches to full-time education must be released without service.

For a retiring director, the procedure is more complex and depends on whether he is an employee, a shareholder or the sole founder. You can read more about the departure of directors in our material.

Calculations

A person who decides to leave his job on his own is not entitled to severance pay. He will be given a salary (part of it) for the time worked.
In addition, a worker can count on compensation when leaving at his own request, for example, for unused vacation.
In case of voluntary dismissal, the calculation may include a bonus (if it was provided for in the employment agreement) and compensation for unused vacation.

The nuances of terminating a contract

An employer can fire a person who wants to do so at his own request. It is legal to leave on your own initiative while on vacation. It is impossible to terminate a working relationship at the initiative of the employer when a person is sick or on vacation. Reinstatement to work if the worker has exercised his right to withdraw his resignation may be more difficult. During the month-long vacation period, the employer could easily find a new employee and have time to conclude an employment contract with him, so he no longer has the right to hire the previous one.
The general rules for terminating an agreement apply even if the notice period for leaving coincides with sick leave. And it doesn’t matter that at the time of its completion the employee is no longer registered in the organization, his sick leave will be paid according to all standards.

Express your opinion about the article or ask the experts a question to get an answer

It is quite difficult to accept a hard worker and arrange everything correctly. The procedure for dismissing an employee raises even more questions. It's all about the strict paragraphs of the Labor Code (LC) of the Russian Federation, aimed at protecting people. The legislation provides a wide range of opportunities for aggrieved employees to protest management decisions to terminate their employment relationship.

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Regulatory framework

The employer and the worker are in an employment relationship. At the same time, each party has its own responsibilities and rights. The procedure for dismissing an employee is the process of formalizing the termination of a contract (relationship). It must fully comply with the current legislation.

Therefore, the employer is obliged:

• know your own responsibilities and the rights of the hired person;
• scrupulously comply with the requirements and norms of the law;
• strive for perfect documentation.

In practice this means the following:

1. The reason for the breakup must correspond exactly to:
   • the current situation;
   • paragraph of the Labor Code;
2. in documents it is written strictly in words from the law:
   • in the order;
   • in the work book (TrK);
3. The dismissal initiative may belong to:
   • employer;
   • to the hired person;
   • both together (mutual consent);
4. the initiative party is obliged to draw up the appropriate document.

Important: it is prohibited to include in an order or other document a reason for the breakdown of relations that is not provided for by law.

If the dismissal procedure is not followed, the court may oblige the entrepreneur to take back the dismissed person or pay him significant compensation.

When an employment contract is terminated

Most of the grounds for dismissal of an hired person are listed in Article 77 of the Labor Code. These include:

1. initiative of one of the parties;
2. mutual consent of the administration and the worker;
3. end of the contract period;
4. dismissal due to transfer to another service;
5. a significant change in condition leading to the employee’s refusal to continue performing duties;
6. serious changes in health status (medical evidence required) or death;
7. conscription for compulsory military service;
8. staff reduction or liquidation of a legal entity;
9. retirement;
10. election to a certain position;
11. material violation of the terms of the original contract;
12. refusal to move to another city with the organization;
13. circumstances beyond the control of the parties.

Important: each reason for breaking up a relationship has its own nuances, including financial ones.

Basic rules for registering dismissal

The personnel officer must know the subtleties and nuances of drawing up documents and the procedure for familiarizing the dismissed person with them. The result of a possible lawsuit if initiated by an offended worker depends on the accuracy of the algorithm’s execution.

The following actions should be taken:

1. Receive an application from the employee or determine other conditions for termination of the employment relationship.
2. Draw up a draft order based on the previous document. Submit it to the manager for signature. The document indicates the days of ungranted vacations along with the corresponding periods.
3. Familiarize yourself with the fully executed and registered order of the dismissed person against signature.
4. Create a shopping mall. This document contains the exact phrase from the order about the reason for parting with the worker.
5. Issue TC on the last working day. Obtain a person’s signature in the movement log of this type of document. In addition, the dismissed person is obliged to set the date of receipt of the TC corresponding to the day the contract was terminated.
6. Full payment is also made on the last working day.

Important: in the order and in the Labor Code there is a mandatory reference to the article of labor legislation.

Certificates issued to the dismissed person

In accordance with the law, a person may require certain information characterizing his activities at work. Within three days, the administration is obliged to satisfy the request for the following information:

1. copies of orders about:
   • recruitment;
   • termination of work;
2. certificate of income received in the form of personal income tax -2;
3. extract from personal card about vacation periods;
4. information about accruals for two years;
5. other.

Please note that this information may become evidence in a lawsuit.

Making your own wish

The employee is given the right to initiate termination of the agreement. The law contains the following rules:

• a person’s obligation to notify the employer of his decision two weeks in advance;
• the ability to cancel the initiative within a specified period.

The actions and rights of the administration are as follows:

1. accept the application;
2. reduce or cancel the review period;
3. do not insist on terminating the employment relationship if the person changes his mind;
4. issue an order and TRK;
5. familiarize yourself with the documents of the resigning person;
6. issue a calculation.

How is an employer's initiative formalized?

The reasons for the proactive decision of management are the following circumstances:

1. violation of discipline, including:
   • absenteeism;
   • use of alcohol or drugs while on duty;
2. failure to perform duties;
3. unsatisfactory results of the probationary period;
4. presence of disciplinary sanctions;
5. theft of property (or damage to it);
6. disclosure of state or commercial secrets;
7. inconsistency with the position;
8. reduction of position(s);
9. reorganization;
10. liquidation of a legal entity (or individual entrepreneurship).

Important: each of the circumstances must be documented.

In particular, violation of discipline is accompanied by the following documents:

• a memo from the immediate supervisor;
• an act of the commission confirming the fact;
• an explanatory note from the offender;
• order to impose a penalty.

Attention: in some situations, management may initiate an internal investigation. Based on its results, further decisions are made.

Agreement of the parties

This reason for the separation of the employer and the worker provides the parties with wider scope for action. It can be used in situations where other reasons are prohibited. Namely, in cases where an employee is on vacation:

• next;
• maternity leave;
• due to illness.

The procedure for the parties is as follows:

1. Drawing up a corresponding application by the employee, endorsement by his manager.
2. Preparation of an order indicating the reason for dismissal.
3. Familiarization with the text of the person being dismissed against signature.
4. Making an entry:
   • in TrK;
   • in the movement log of this type of document.
5. Issuing the full payment to the TrK employee.

For information: this reason for breaking a relationship allows a person to immediately register with the employment authorities and receive benefits.

Expiration of the contract

If the worker was hired under a fixed-term contract, then separation from him may be due to the expiration of the document. To fulfill all the conditions, the administration of the enterprise is obliged to notify the employee in writing about the existing grounds three days before the end date of the contract.

Important: if notification is not made, the contract becomes indefinite. The basis for breaking the relationship is no longer valid.

If there is this reason for parting with an employee, the following additional measures must be taken:

1. Create a notice.
2. Register it in the appropriate journal.
3. Familiarize yourself with the document with the person’s signature (indicating the date) or send it to his address by registered mail.
4. Otherwise, the procedure does not differ from the procedures already described above.

Special conditions for certain categories of citizens

The employer's initiative is not applicable in all conditions. Thus, management does not have the right to organize the dismissal of the following categories of workers:

1. pregnant woman;
2. mothers of a child under three years old;
3. single mother raising:
   • child under 14 years of age;
   • a disabled minor child;
4. some others.

For information: unfortunately, the above circumstances often prevent eligible citizens from finding a job.

Other reasons for termination of employment relationships

The Labor Code of the Russian Federation specifies a significant number of circumstances leading to the end of the relationship between an employee and an enterprise. Each has subtleties and nuances. However, they have common aspects. Thus, when drawing up documents, it is necessary to strictly comply with the requirements of the law.

1. If the break in cooperation is related to health conditions, then it is necessary to obtain and attach a medical certificate to the case.
2. A criminal act is confirmed by a decision of a judicial authority on punishment.
3. Admission to study requires a certificate from the institution.
4. Conscription into the army - with the appropriate document from the military registration and enlistment office.

Attention: during an inspection by labor inspectorates, illegal contracts may be identified. They will also have to be torn apart.

As a rule, violations during recruitment are associated with:

• with the presence of a prohibitory decision of a judicial authority on engaging in certain types of activities;
• inconsistency of health status with the severity of assigned duties;
• lack of an established level of education (qualification).

For information: if the administration of the enterprise is guilty of the violation, then the dismissed person will have to pay severance pay. As a rule, its size is equal to the average monthly accruals.

Disagreements when breaking a contract

Sometimes personnel officers have to deal with the carelessness or maliciousness of employees when drawing up an application. Here is a list of situations with ready-made solutions:

1. If the date of dismissal is not indicated, then it is counted from the number on the application (2 weeks).
2. If the person resigning asks him to pay within a period of less than fourteen days, then the person should be asked to rewrite the application. Sometimes management agrees to such a date.

Important: unauthorized leaving of the workplace, earlier than the two-week period established by law, provides grounds for initiating separation due to absenteeism.

Watch the video about the dismissal of employees

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