Dismissal or termination employment contract– termination of the relationship between the employee and the employer at the initiative of either party. Like any other personnel job, termination must be accompanied by established procedures, which include:
The procedure for terminating an employment contract has its own subtleties, depending on the reason for dismissal and, above all, on who initiated it - the employer or the employee.
The most common reason for dismissal is the employee’s own desire. In such cases there are general rules termination of employment relationships, which are as follows:
As a rule, no complications occur when registering those leaving of their own free will. But here some nuances may arise if the employee for some reason did not want or was unable to obtain documents. In such cases personnel worker proceeds as follows:
It is extremely important to complete the procedure no later than the day the work contract is terminated, otherwise the dismissal may be considered invalid: this is not the case when it is permissible to draw up documents “retroactively”.
There are situations in which termination of an employment contract at the initiative of an employee deviates slightly from the standard scheme. Basically, changes occur in terms of the duration of mandatory “working off”, namely:
Dismissal by agreement of the parties is considered a “compromise” option between the employee and the employer. It can be caused either by the desire of the employee or by the decision of the employer; in any case, this is possible provided that the parties manage to reach an “amicable” agreement. Termination of employment relations is formalized by agreement of the parties as follows:
This formulation may provide certain benefits to the dismissed person: monetary compensation from the employer, the opportunity, if necessary, to apply for unemployment benefits, based on the amount wages. The employer may also be interested in the agreement: for example, this way he receives a guarantee that the employee will leave the organization on a specific date, since the statement in case of dismissal by agreement does not have retroactive effect.
The Labor Code of the Russian Federation (Article 81) provides for a number of grounds for termination of an employment contract by the employer. General grounds applicable to all employees, with the exception of certain categories, include:
There are also reasons for dismissal that are specific to certain positions, provided for by individual legislative acts, for example, loss of confidence for employees associated with money; immoral behavior for teachers or the discovery of a government employee owning his own business.
To become the basis for termination of an employment contract by the employer, all these facts must be established and supported by documents: acts, medical reports, reports and memos, court decision, etc.
The only unconditional basis for the dismissal of any employees is the liquidation of the company; in all other cases there are restrictions that relate to:
Termination of a contract at the initiative of the employer has many nuances arising from the specific reason for dismissal. For example, the procedure related to liquidation and reduction includes, first of all, notice of termination of the employment contract sent to the employee 2 months before dismissal, as well as payment of severance pay. In some cases, the employer is obliged to first offer the employee to move to another position, and after refusal, he can terminate the employment relationship.
Dismissing a discipline violator is an even more difficult task, which is carried out in several stages and is accompanied by the collection of evidence.
Thus, the procedure for terminating the contract depends on the article of the Labor Code applied upon dismissal, each of which deserves separate consideration.
Work on fixed-term contract- a special case. By signing it, both parties agree that after a certain period of time their employment relationship will end. Moreover, the possibility of their extension may or may not be provided. However, such a contract does not automatically terminate on the date specified in the agreement.
The urgency of the contract does not exempt the employer from warning the employee 3 days before the date of dismissal - the notice must be given to the employee personally or sent by mail. Otherwise, the contract will be considered extended for an indefinite period, that is, it will become indefinite.
In the usual manner, termination of a fixed-term employment contract occurs in connection with the completion of work (temporary, seasonal), for which the person was brought into the organization, or the departure of a temporarily absent employee, in whose place the dismissed person worked. The difference between a fixed-term contract and a regular one is that it gives the employer the right to part with a temporary employee, even if he will be on sick leave or on vacation by the time the agreement ends.
The fact that the contract has a certain period is not an obstacle to the temporary employee leaving at his own request. To terminate the employment relationship early, you must write a statement, and after 2 weeks you can be free from your duties. Other dismissal options also apply to conscripts - by agreement of the parties, at the initiative of the enterprise.
Difficulties for the employer can arise only in one case: if a pregnant woman turns out to be a worker under a fixed-term contract. It is impossible to fire her due to this circumstance, but you can wait until she receives the right to leave maternity leave. Until this moment, personnel officers have the right to request a pregnancy certificate from a woman every 3 months and, on its basis, renew the contract. A woman who is not in a hurry to go on maternity leave and continues to work “all the way” and beyond can be fired on completely legal grounds within a week from the day the employer receives information about the end of the pregnancy.
What should an employer do if a person in whose place a pregnant employee works has returned to work? Since the permanent employee has priority in this case, legislators have “safeguarded” organizations by allowing them to fire a replacement if he does not agree to move to another job. The place offered by the employer must meet only one requirement - correspond to the health status of the pregnant woman, and does not necessarily have to be equivalent in terms of pay and position.
Labor legislation also provides for other situations requiring termination of an employment contract. They cannot be classified as normal personnel practice, but such cases often occur:
Termination of an employment contract is an event that can have very serious consequences for a person, often not only for the employee himself, but also for his family members, relatives, and friends. Therefore, the desire of the legislator to resolve issues related to the termination of an employment contract in an exhaustive manner is understandable.
The Labor Code provides for: general grounds for termination of an employment contract; termination of an employment contract at the initiative of the employee (at his own request); termination of an employment contract at the initiative of the employer; termination of an employment contract due to circumstances beyond the control of the parties; termination of an employment contract due to violation of the rules for its conclusion.
General grounds terminations of the employment contract are listed in Art. 77 Labor Code of the Russian Federation.
These include:
Many of these grounds are specified in subsequent articles of the Labor Code of the Russian Federation.
Since, as practice shows, most often the termination of an employment contract occurs on such grounds as termination of the employment contract at the initiative of the employee and at the initiative of the employer, we will focus our attention on them.
Termination of an employment contract at the initiative of the employee
Based on the principle of freedom of labor and the inalienable right of everyone to choose a place of work, an employee has the right to terminate an employment contract at any time by notifying the employer in writing two weeks in advance.
The main purpose of the warning is to enable the employer to select a new employee to replace the one who quits at his own request. Therefore, the employee has the right to notify the employer of his desire to leave work not only during the period of work, but also during the performance of state and public duties, before going on vacation or during vacation, as well as illness.
By agreement between the employee and the employer, the employment contract can be terminated before the expiration of the notice period for dismissal.
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 educational institution, retirement and other cases), as well as in cases of established violation by the employer of laws and other regulatory legal acts containing norms labor law, the 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.
Before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out unless another employee is invited in his place in writing, who, in accordance with the law, cannot be refused to conclude an employment contract.
Upon expiration of the notice period for dismissal, the employee has the right to stop working. On the last day of work, the employer is obliged to issue the employee a work book and other documents related to the work, upon the employee’s written application, and make a final payment to him.
If, upon expiration of the notice period for dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues.
Termination of an employment contract at the initiative of an employee can only be carried out on the basis of his written application (warning). No other evidence of the employee’s desire to terminate the employment contract on his own initiative is taken into account, since a mandatory written form is established for notice of dismissal.
Termination of an employment contract at the initiative of the employer
Art. deals with the termination of an employment contract at the initiative of the employer. 81 Labor Code of the Russian Federation. It provides that an employment contract can be terminated by the employer in the following cases:
1) liquidation of the organization or termination of activities by the employer - an individual;
2) reduction in the number or staff of the organization’s employees;
3) the employee’s inconsistency with the position held or the work performed due to:
a) health status in accordance with a medical report;
b) insufficient qualifications confirmed by certification results;
4) change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);
5) repeated failure by the employee to comply without good reasons labor duties if he has a disciplinary sanction;
6) a single gross violation by an employee of labor duties:
a) absenteeism (absence from work without good reason for more than four hours in a row during the working day);
b) appearing at work in a state of alcohol, drug or other toxic intoxication;
c) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties;
d) committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of the body authorized to apply administrative penalties;
e) violation by an employee of labor protection requirements, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences;
7) commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer;
8) an employee performing educational functions has committed an immoral offense that is incompatible with the continuation of this work;
9) making an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization; 10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;
11) presentation by the employee to the employer forged documents or knowingly false information when concluding an employment contract;
12) termination of access to state secrets if the work performed requires access to state secrets;
13) provided for in the employment contract with the head of the organization, members of the collegial executive body organizations;
14) in other cases established by the Labor Code of the Russian Federation and others federal laws.
Let us consider in more detail some of the grounds for termination of an employment contract provided for in this article.
Clause 1 of Art. 81 refers as such to the liquidation of an organization or termination of activities by an employer - an individual. Both in conditions market economy- phenomena are quite normal and quite common. Liquidation of an organization is perhaps the most indisputable basis for terminating an employment contract: an employment contract cannot continue if one of its parties (the employer) has ceased to exist. But here, too, a caveat is necessary. The liquidation of an organization should not be confused with a change in the ownership of property or a change in the jurisdiction of the organization, as well as its reorganization. In these cases, there is no termination, but only a change in the employment contract (Article 75 of the Labor Code of the Russian Federation), which entails the employee’s right to refuse to continue working (clause 6 and clause 7 of Article 77 of the Labor Code of the Russian Federation).
An even more common basis for termination of an employment contract at the initiative of the employer is a reduction in the number or staff of the organization’s employees (clause 2 of Article 81 of the Labor Code of the Russian Federation). Dismissals on this basis are often challenged by employees in the courts, and often the court comes to the conclusion that such dismissals are unlawful.
Dismissal under clause 2 of Art. 81 of the Labor Code of the Russian Federation will be legal if:
1) takes place real, real staff reductions, not imaginary ones. The courts must carefully clarify this and, in particular, become familiar with the orders for staff reductions, staffing table, data on the reduction of the wage fund, changes in the nature of production, technology, etc.;
2) the dismissal of this particular employee was caused by interests of production, and not because he didn’t please someone;
3) fired has no advantages to remain at work. In accordance with the law, the preferential right to remain at work is granted to employees with higher labor productivity and qualifications, in a word, with the best business qualities. But if workers are equal in this regard, then personal and family circumstances are taken into account:
Having two or more dependents;
Absence of other persons in the family with independent income;
Work injury or occupational disease, received in this organization;
Some other circumstances;
4) the administration does not have the opportunity to transfer the laid-off employee to another job or the employee refused the job offered to him.
Since during dismissal due to a reduction in the number or staff of employees - as well as during dismissal due to the liquidation of an organization - it is impossible to determine the fault of the dismissed employee, and he turns out to be the injured party, the legislation provides in these cases certain guarantees and compensation for the dismissed.
Employees are notified by the employer personally and against signature of the upcoming dismissal due to the liquidation of the organization, reduction in the number or staff of the organization's employees, at least two months before the dismissal.
When carrying out measures to reduce the number or staff of an organization’s employees, the employer is obliged to offer the employee another available job (vacant position) in the same organization that corresponds to the employee’s qualifications.
When an employment contract is terminated due to the liquidation of an organization or a reduction in the number or staff of the organization's employees, the dismissed employee is paid severance pay in the amount of average monthly earnings, and also retains his average monthly earnings for the period of employment, but not more than two months from the date of dismissal.
In paragraph 3 of Art. 81 of the Labor Code of the Russian Federation provides for the possibility of dismissing an employee due to his inadequacy for the position held or the work performed due to: a) health status in accordance with a medical report; b) insufficient qualifications confirmed by certification results.
In this case, the provision that the state of health must be confirmed by a medical report, and insufficient qualifications - by the results of certification is of fundamental importance.
In addition, if an employee is dismissed due to health conditions, he must also be paid severance pay.
Clause 6 of Art. 81 of the Labor Code of the Russian Federation gives the employer the right to dismiss an employee for certain one-time violations of labor discipline. Regarding the dismissal of an employee for appearing at work in a state of alcohol, drug or other toxic intoxication, then on this basis employees who were in working hours at the place where work is performed in a state of alcohol, drug or other toxic intoxication. Dismissal is possible if the employee was in such a state both at his workplace and on the territory of the organization where he must perform his labor function.
At the same time, judicial practice proceeds from the fact that the state alcohol intoxication employee can be confirmed both by a medical report and other types of evidence that are subject to appropriate assessment. One of such evidence can be an act, which, in particular, indicates the day, time and place of its preparation and signs of the employee’s drunken state.
Showing up at work while intoxicated is grounds for dismissal, regardless of when it occurs - at the beginning, middle or end of the working day. Dismissal is permitted regardless of whether the employee has disciplinary action and whether he was removed from work or work duties.
In paragraph 7 of Art. 81 contains such grounds for termination of an employment contract as the commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him on the part of the employer.
On this basis, only employees directly servicing monetary or commodity assets (reception, storage, transportation, distribution, etc.) who have committed guilty actions that give the administration grounds for losing confidence in them can be dismissed.
Loss of trust must be based on specific facts of the employee committing culpable acts.
Guilty actions that give rise to loss of confidence in an employee may include, in particular: receiving payment for services without appropriate documents, measuring, weighing, counting, violating the rules for the sale of alcoholic beverages or the dispensing of narcotic drugs.
Loss of trust is possible not only for abuse committed by an employee, but also for his negligent attitude towards his work duties, for example, issuing sums of money without appropriate registration, keeping keys to premises with material assets in the wrong place. Grounds for dismissal due to loss of trust are also the use by the employee of the property entrusted to him for direct maintenance for personal purposes.
If the employee’s guilt in committing specific actions has not been established, then the employee cannot be dismissed on the grounds of loss of trust despite the occurrence of a shortage, damage to entrusted valuables, etc.
In accordance with paragraph 8 of Art. 81 of the Labor Code of the Russian Federation, the commission of an immoral offense incompatible with the continuation of this work can serve as grounds for dismissal only in relation to employees performing educational functions. These include, for example, teachers, lecturers educational institutions, masters of industrial training, teachers of children's institutions. Persons, although working in schools, boarding schools, kindergartens, etc., but only perform technical responsibilities(cleaners, storekeepers, etc.) cannot be dismissed on this basis.
Immoral offenses that are incompatible with the continuation of work can be committed by persons performing educational functions both in the team and in everyday life. However, under all conditions, the commission of immoral offenses must be proven. Dismissal on the grounds of overall assessment behavior of a person, based on vague or insufficiently verified facts, rumors, etc.
In paragraph 14 of Art. 81 of the Labor Code of the Russian Federation states that an employment contract can be terminated by the employer in other cases established by this code and other federal laws.
Such cases established by law are, for example:
Procedure for dismissing an employee.
Termination of an employment contract almost always (with the exception of termination of an employment contract due to the death of a citizen) means the dismissal of the employee. The procedure for dismissal is regulated by law.
The day of dismissal of an employee in all cases is the last day of his work.
On the last day of work, the employer is obliged to issue the employee a work book, and, upon his written application, other documents related to the work, and make a final payment to him. Failure to fulfill this obligation, if it resulted in the employee’s inability to get a job new job(for example, due to a delay in issuing a work book), entails financial liability the employer in the form of his obligation to compensate the employee for lost earnings for illegally depriving the employee of the opportunity to work.
The order to dismiss an employee and his work record book must contain a reference to the relevant article (and, if necessary, the paragraph of the article) on the basis of which the employment contract was terminated.
Termination of an employment contract means the end of the employment relationship between the employee and the employer. In the current labor legislation, along with the concept of “termination of an employment contract,” there are other concepts that mean the end of labor relations between the parties to the employment contract: “termination of the employment contract” and “dismissal.” These concepts are close in meaning, but are not identical and differ in their legal content.
Thus, termination of an employment contract is the end of the labor legal relationship between the employee and the employer. “Termination of an employment contract” is the most general and broad concept that covers all cases of termination of a concluded employment contract, termination of an employment relationship (by agreement of the parties; at the initiative of an employee or employer; at the request of authorized third parties; on grounds excluding any circumstances, the possibility of continuing labor relations, etc.).
The concept of “dismissal of an employee” is, in fact, close to the concept of “termination of an employment contract”, but it does not cover cases of termination of an employment contract due to circumstances beyond the control of the parties.
“Termination of an employment contract” is a narrower concept; it is a voluntary termination of employment relations on the initiative of one of the parties to the employment contract or on the initiative of certain bodies that have the right to demand this termination. The difference between the concept of “termination of an employment contract” and the concept of “termination of an employment contract” is that the first covers both volitional unilateral and bilateral actions, as well as events, while the second covers only unilateral volitional actions.
An employment contract is terminated only if there are certain grounds for its termination and compliance with the rules for dismissing an employee on this specific basis. The basis for termination of an employment contract is a vital circumstance, which is enshrined in law as a legal fact necessary for terminating the employment relationship. Termination of an employment contract means simultaneously the dismissal of the employee.
The Labor Code of the Russian Federation devotes an entire chapter to termination of an employment contract - Chapter 13, which provides for the grounds and procedure for terminating an employment contract. At the same time, the Labor Code of the Russian Federation is not the only legal act regulating the termination of an employment contract. Thus, grounds for termination of employment contracts that differ from those given in the Labor Code of the Russian Federation are contained in a number of other federal laws.
It should be noted that the terms of the employment contract may also establish additional grounds for dismissal, if this is permitted by current legislation and does not contradict it. The Labor Code of the Russian Federation regulates the right of the parties to an employment contract in certain cases to include in the employment contract additional grounds for termination of employment relations (Articles 278, 307, 312, 347 of the Labor Code of the Russian Federation).
Termination of an employment contract is considered legal provided that, in addition to the existence of grounds provided for by law, the employer complies with the established procedure for terminating the employment contract, and also provides the guarantees upon dismissal established by law for certain categories of employees.
Thus, it is not allowed to dismiss an employee at the initiative of the employer during the period of his temporary disability and while on vacation (Part 3 of Article 81 of the Labor Code of the Russian Federation), pregnant women, as well as women with children under the age of three, single mothers raising a child under the age of 14 years (a disabled child under eighteen years old), other persons raising these children without a mother, at the initiative of the employer is not allowed (with the exception of dismissal under clause 1, sub-clause “a”, clause 3, clause 5-8, 10 and 11 Article 81 of the Labor Code of the Russian Federation).
The dismissal of an employee under paragraph 5 of Article 82 of the Labor Code of the Russian Federation is carried out taking into account reasoned opinion the elected trade union body of this organization in accordance with Art. 373 Labor Code of the Russian Federation.
The employer has the right to terminate the employment contract no later than one month from the date of receipt of the reasoned opinion of the elected trade union body.
Taking into account the opinion of the trade union body is not required if an employee who is not a member of a trade union is fired or if there is a trade union in the organization, but the employee is connected by membership relations with another trade union that does not have a primary trade union body in this organization.
Representatives of employees participating in collective negotiations during the period of their conduct cannot be dismissed at the initiative of the employer without the prior consent of the body. Authorizing them for representation, except in cases of termination of an employment contract for committing an offense for which, in accordance with the Labor Code of the Russian Federation, other federal laws provide for dismissal from work.
Termination of an employment contract with an employee under 18 years of age at the initiative of the employer (except for cases of liquidation of the organization), in addition to compliance with the general procedure, is allowed only with the consent of the relevant state labor inspectorate and the commission for minors.
According to Art. 374 of the Labor Code of the Russian Federation, dismissal at the initiative of the employer in accordance with clause 2, sub-clause. "b" clause 3 and clause 5 of Art. 81 of the Labor Code of the Russian Federation, managers (their deputies) of elected trade union collegial bodies of an organization, its structural divisions (not lower than shop units and equivalent to them), who are not released from their main work, are allowed, in addition to the general procedure, for dismissal only with the prior consent of the corresponding higher elected trade union body.
At the same time, the provisions of part one of Art. 374 of the Labor Code of the Russian Federation are subject to application in accordance with the constitutional and legal meaning identified in the ruling of the Constitutional Court of the Russian Federation dated December 4, 2003 No. 421-O “In the case of verifying the constitutionality of the provisions of part two of Article 170 and part two of Art. 235 Labor Code of the Russian Federation and clause 3 of Art. 25 of the Federal Law “On Trade Unions, Their Rights and Guarantees of Operations”, which recognized as inconsistent with the Constitution the norms contained in federal laws and prohibiting the dismissal of an employee who has committed an unlawful act, which is a legal basis for termination of an employment contract at the initiative of the employer. The establishment in the Labor Code of the Russian Federation of guarantees for an employee upon his dismissal for repeated failure to perform labor duties without good reason, if he has a disciplinary sanction, represents a disproportionate restriction of the rights of the employer as a party to the employment contract and at the same time as a subject of economic activity and owner. This kind of restriction is not due to the need to protect the rights and freedoms enshrined in Art. 30 (part 1), 37 (part 1) and 38 (parts 1 and 2) of the Constitution of the Russian Federation, violates the code of economic (entrepreneurial) activity, property rights, distorts the essence of the principle of freedom of labor and therefore contradicts the requirements of Art. 8, 34 (part 1), 35 (part 2), 37 (part 1) and 55 (part 3) of the Constitution of the Russian Federation.
General grounds for termination of an employment contract.
The general grounds for termination of an employment contract are contained in Article 77 of the Labor Code of the Russian Federation
The grounds for termination of an employment contract are:
1) agreement of the parties (Article 78 of the Labor Code of the Russian Federation);
2) expiration of the employment contract (Article 79 of the Labor Code of the Russian Federation), 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 the Labor Code of the Russian Federation);
4) termination of an employment contract at the initiative of the employer (Articles 71 and 81 of the Labor Code of the Russian Federation);
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 (Article 75 of the Labor Code of the Russian Federation);
7) the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (part four of Article 74 of the Labor Code of the Russian Federation);
8) the employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical report 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 work (parts three and four of Article 73 of the Labor Code of the Russian Federation);
9) the employee’s refusal to be transferred to work in another location together with the employer (part one of Article 72.1 of the Labor Code of the Russian Federation);
10) circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation);
11) 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 (Article 84 of the Labor Code of the Russian Federation).
An employment contract may also be terminated on other grounds provided for by the Labor Code of the Russian Federation and other federal laws.
Termination of an employment contract by agreement of the parties presupposes the mutual desire of the employee and employer to terminate the employment contract (Article 79 of the Labor Code of the Russian Federation). The employment contract is terminated within the period agreed upon by the parties, that is, at any time. An agreement to terminate an employment contract does not exclude the possibility of dismissing an employee at his own request or, if there are grounds for this, at the initiative of the employer.
Termination of an employment contract at the initiative of an employee presupposes the desire of one party (the employee) to terminate the employment contract, and the employer is obliged to terminate relations with the employee upon expiration of the notice period.
An employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless a different period is established by the Labor Code of the Russian Federation or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter.
By agreement between the employee and the employer, the employment contract can be terminated before the expiration of the notice period for dismissal.
In cases where the 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 institution, 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.
Before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out unless another employee is invited in his place in writing, who, in accordance with the Labor Code of the Russian Federation and other federal laws, cannot be denied an employment contract.
Before the expiration of the notice of dismissal, the employer is not deprived of the right to dismiss the employee if he has committed an offense that is grounds for dismissal.
Upon expiration of the notice period for dismissal, the employee has the right to stop working. On the last day of work, the employer is obliged to issue the employee a work book and other documents related to the work, upon the employee’s written application, and make a final payment to him.
If, upon expiration of the notice period for dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues.
The right to terminate an employment contract at the initiative of an employee is given not only to an employee who has entered into an employment contract for an indefinite period, but also to an employee working under a fixed-term employment contract.
If an application for termination of an employment contract is submitted by an employee under 18 years of age, it is necessary to first obtain the consent of the relevant state labor inspectorate and the commission for minors.
Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004 contains a provision explaining to the courts the issues of application of legislation governing the termination of an employment contract at the initiative of an employee concluded for an indefinite period, as well as a fixed-term employment contract (clause 3 of Article 77, Article 80 of the Labor Code of the Russian Federation ). Please keep the following in mind:
a) termination of an employment contract at the initiative of an employee is permissible in the case where filing a letter of resignation was his voluntary expression of will. If the plaintiff claims that the employer forced him to submit a resignation letter of his own free will, then this circumstance is subject to verification and the responsibility to prove it rests with the employee;
b) the employment contract can be terminated at the initiative of the employee and before the expiration of the two-week notice period for dismissal by agreement between the employee and the employer.
An employment contract can be terminated at the initiative of the employer in the following cases:
1) liquidation of an organization or termination of activities by an individual entrepreneur;
2) reduction in the number or staff of employees of an organization or individual entrepreneur;
3) the employee’s inconsistency with the position held or the work performed due to insufficient qualifications confirmed by certification results;
4) change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);
5) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;
6) a single gross violation by an employee of labor duties:
a) absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);
b) the employee appears at work (at his workplace or on the territory of the organization - the employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication;
c) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;
d) committing at the place of work theft (including small) of someone else’s property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;
e) a violation by an employee of labor protection requirements established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (work accident, breakdown, catastrophe) or knowingly created a real threat of such consequences;
7) commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer;
8) an employee performing educational functions has committed an immoral offense that is incompatible with the continuation of this work;
9) making an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;
10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;
11) the employee submits false documents to the employer when concluding an employment contract;
12) has become invalid.
13) provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization;
14) in other cases established by the Labor Code of the Russian Federation and other federal laws.
The procedure for certification (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers.
Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job) which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.
Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer.
It is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary incapacity for work and while on vacation.
When considering a case on reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.
When considering cases of reinstatement at work, it should be borne in mind that when implementing the guarantees provided by the Labor Code of the Russian Federation to employees in the event of termination of their employment contract, the general legal principle of the inadmissibility of abuse of rights, including by the employees themselves, must be observed. In particular, it is unacceptable for an employee to conceal a temporary disability during his dismissal from work or the fact that he is a member of a trade union or the head (his deputy) of an elected trade union collegial body of an organization, its structural divisions (not lower than shop units and equivalent to them), not released from their main job, when the decision on dismissal must be made in compliance with the procedure for taking into account the reasoned opinion of the elected trade union body of the organization or, accordingly, with the prior consent of a higher elected trade union body.
If the court establishes that the employee has abused his right, the court may refuse to satisfy his claim for reinstatement at work (while changing, at the request of the employee dismissed during a period of temporary incapacity, the date of dismissal), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of unfair actions on the part of the employee (clause 27 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004).
As a general rule, the parties cannot include in the employment contract additional grounds for dismissing employees other than those provided for by law, since this can be considered as a reduction in the level of guarantees for employees. In accordance with Part 2 of Art. 9 of the Labor Code of the Russian Federation, employment contracts cannot contain conditions that limit the rights or reduce the level of guarantees of workers in comparison with those established by labor legislation and other regulatory legal acts containing labor law norms. If such conditions are included in the employment contract, they are not subject to application.
Termination of an employment contract at the initiative of an employer with pregnant women is not permitted, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur.
Part 1 art. 261 of the Labor Code of the Russian Federation prohibits the dismissal of pregnant women at the initiative of the employer. The ban on dismissal applies to all grounds for dismissal at the initiative of the employer, specified both in the Labor Code of the Russian Federation and in other federal laws.
The dismissal of a pregnant woman for other reasons not related to the employer’s initiative, including due to circumstances beyond the control of the parties to the employment contract (Article 83 of the Labor Code of the Russian Federation) and in violation of the rules for hiring (Article 84 of the Labor Code of the Russian Federation), is carried out in in general order.
If a fixed-term employment contract expires during a woman’s pregnancy, the employer is obliged, upon her written application and upon provision of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of the pregnancy. A woman whose employment contract has been extended until the end of her pregnancy is obliged, at the request of the employer, but not more than once every three months, to provide a medical certificate confirming the state of pregnancy. If the woman actually continues to work after the end of her pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day the employer learned or should have learned about the end of the pregnancy.
An employment contract extended in this way, by virtue of the direct instructions of the law, does not cease to be fixed-term. In this case, the woman is provided with all the benefits to which she is entitled in connection with pregnancy, including the right to transfer to another job and to be released from work while maintaining average earnings if such a transfer is impossible.
It is permissible to dismiss a woman due to the expiration of an employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of an absent employee and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer before the end of her pregnancy (as a vacant position or a job corresponding to the woman’s qualifications, and a vacant lower-level position or lower-paid job), which a woman can perform taking into account her state of health. In this case, the employer is obliged to offer her all the vacancies that he has in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
Termination of an employment contract with women who have children under three years of age, single mothers raising a child under fourteen years of age (a disabled child under eighteen years of age), other persons raising these children without a mother, at the initiative of the employer is not allowed (with the exception of dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of part one of Article 81 or paragraph 2 of Article 336 of the Labor Code of the Russian Federation).
An employment contract is subject to termination due to the following circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation):
1) conscription of an employee for military service or sending him to an alternative civilian service that replaces it;
2) reinstatement of an employee who previously performed this work, by decision of the state labor inspectorate or court;
3) failure to be elected to office;
This basis applies to those employees who were not elected to the position a second time for the position they held, although they applied for it. If an employee has not submitted documents to be elected to a position, then he is dismissed due to the expiration of the employment contract under clause 2 of Part 1 of Art. 77 Labor Code of the Russian Federation.
4) sentencing of an employee to a punishment that precludes the continuation of previous work, in accordance with a court verdict that has entered into legal force;
5) recognition of the employee as completely incapable of labor activity in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation;
The recognition of an employee as completely incapacitated may take place in accordance with a medical report issued by the body or institution competent to issue such a report.
6) death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as deceased or missing;
In accordance with Art. 45 of the Labor Code of the Russian Federation, a citizen may be declared dead by the court if at his place of residence there is no information about his place of stay for five years, and if he went missing under circumstances threatening death or giving reason to assume his death from a certain accident - in within 6 months.
7) the occurrence of emergency circumstances that impede the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a government body of the relevant constituent entity of the Russian Federation;
8) disqualification or other administrative punishment that precludes the employee from fulfilling his duties under the employment contract;
Disqualification is the deprivation of an individual of the right to occupy leadership positions in the executive body of a legal entity for a period of 6 months to 3 years. In addition to disqualification, there may also be deportation from the territory of the Russian Federation of a foreign citizen (or stateless person) who had an employment relationship with the employer.
9) expiration, suspension of validity for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, right to carry a weapon, other special right) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of the employee fulfilling his duties under the employment contract;
10) termination of access to state secrets if the work performed requires such access;
11) cancellation of a court decision or cancellation (recognition as illegal) of the decision of the state labor inspectorate to reinstate the employee at work.
An employment contract is terminated due to a violation of the rules for its conclusion established by the Labor Code of the Russian Federation or other federal law, if violation of these rules excludes the possibility of continuing work, in the following cases:
concluding an employment contract in violation of a court verdict depriving a specific person of the right to occupy certain positions or engage in certain activities;
concluding an employment contract to perform work that is contraindicated for this employee for health reasons in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts Russian Federation;
lack of an appropriate education document if the work requires special knowledge in accordance with federal law or other regulatory legal acts;
concluding an employment contract in violation of a resolution of a judge, body, official authorized to consider cases of administrative offenses, disqualification or other administrative punishment that precludes the possibility of an employee fulfilling duties under an employment contract, or concluding an employment contract in violation of the restrictions, prohibitions and requirements established by federal laws relating to the involvement in labor activities of citizens dismissed from state or municipal service;
in other cases provided for by federal laws.
If a violation of the rules for concluding an employment contract established by this Code or other federal law is not due to the fault of the employee, then the employee is paid severance pay in the amount of average monthly earnings. If a violation of these rules is due to the fault of the employee, then the employer is not obliged to offer him another job, and severance pay is not paid to the employee.
An employment contract is a legal document that defines the relationship between the parties to the agreement - the employee and the employer. This document establishes certain guarantees for the employee, as well as the powers of the employer. The contract specifies all working conditions, wages, rights and obligations of the parties.
The conclusion and termination of an employment contract is carried out in written or oral form, in accordance with the requirements of the law. Termination of an employment contract can occur for a number of different reasons. The procedure for terminating an employment contract is provided for by law, and the concept of its termination includes termination of the contract at the initiative of the parties.
The legislation clearly states all the reasons why an employment contract may be terminated or amended. These include:
Let's take a closer look at the main, most common reasons for termination of an employment contract.
Termination of an employment contract with a specified period of validity is considered to be the end of this period. Notice of termination of such an employment contract must be provided to the employee at least three days before dismissal. An exception may be the expiration of a contract concluded while performing duties for another employee. In this case, the contract loses force from the moment it reaches workplace this employee. An agreement concluded for a season, that is, with seasonal workers, becomes invalid at the end of the season. A contract to perform a specific job ends when the work is completed. Early termination of a fixed-term employment contract can occur by agreement of the parties or on the initiative of one of them.
An employment contract can also be terminated by agreement of the parties who entered into it. The date of the order to terminate the employment contract is discussed and agreed upon in advance. In such a case, the employee is not required to notify the employer of dismissal 2 weeks in advance. However, in order to indicate such a reason for termination of the contract, the consent of the employer is required, and the reason must be indicated in the employee’s application for termination of the employment contract.
Termination of an employment contract with a part-time worker occurs for the same reasons as for the main employee, 
and also has one additional basis - hiring in his place an employee for whom this work will be the main one.
An employment contract can also be terminated on the initiative of one of the parties, for example, the employee. He has the right to do this at his own request, and is obliged to write a letter of resignation no later than two weeks before the planned date of dismissal.
Termination of an employment contract at the initiative of the employer may occur in the event of complete liquidation of the organization or enterprise, reduction of staff, inconsistency of the employee for the position held, or repeated gross violation of his duties without good reason.
Termination of an employment contract– exemption from work as a worker or employee in an enterprise, institution, organization on the grounds and in the manner provided for by law. Termination of an employment contract, and therefore the dismissal of an employee, is possible on the grounds established by the legislation of the Russian Federation.
Reasons, i.e., the reasons for termination of an employment contract, dismissal of an employee, are such life circumstances that are enshrined in law as legal facts necessary for termination of an employment contract.
Termination of an employment contract covers both unilateral and bilateral volitional actions and events, while termination covers only unilateral volitional actions.
Grounds for termination of an employment contract according to the Labor Code of the Russian Federation:
An employment contract may also be terminated on other grounds provided for by the Labor Code of the Russian Federation and other federal laws.
In all cases the day of the employee's dismissal is the last day of his work, with the exception of cases when the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal laws, his place of work was retained. Termination of an employment contract formalized by order (instruction) of the employer. The employee must be familiarized with the order (instruction) against signature. At the request of the employee, the employer is obliged to issue a certified copy of the order (instruction). In the event that an order (instruction) cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under signature, a corresponding entry is made on the order (instruction).
