Dismissal at your own request. Dismissal at one's own request - registration rules and controversial situations Article 80 of the Labor Code of the Russian Federation comments

Labor legislation provides for the possibility of termination of work at the initiative of an employee at any time during the fulfillment of obligations.

Article 80 of the Labor Code of the Russian Federation - dismissal due to at will without working out, such grounds must be indicated in the application for termination labor contract.

By general rule The employer must be notified of the termination of the relationship 14 days in advance. In which cases exceptions are made and work is not required - all this will be discussed in this publication.

Working off - types and period of notice of dismissal

The law establishes a working period - the period after filing an application to terminate the contract, within 2 weeks.

This time is provided for the possibility of searching for a new candidate for the replaced employee, as well as transferring to the latter the matters within his competence. Within 14 days vacant place must find a new person who will be ready to begin performing work duties.

This is a standard rule. In some cases, the period may be reduced to 3 days or increased to 1 month.

When the working period is 3 days:

1. During the probationary period, when the refusal of the employment relationship follows from the employee or directly from the employer. The form for formalizing a break in relations at the initiative of the employee is a letter of resignation, the employer is an order to terminate the contract. This possibility is provided when the parties are in an employment relationship for a period of no more than 3 months. If the specified time is exceeded, the work will be 14 days.
2. When performing seasonal work. An employee can notify the administration 3 days in advance, but if the initiative comes from the company, the notification is given to the employee 7 days in advance. This often happens when the employment agreement is terminated due to the liquidation of the enterprise or staff reduction.
3. If the contract is short-term in nature, it is concluded for a period of no more than 2 months. This requirement applies to relations during the liquidation of an enterprise or the closure of an individual enterprise.

It is necessary to work for a month in the following cases:

1. Upon dismissal of the chief accountant or head of the enterprise on the basis of Art. 280 Labor Code of the Russian Federation.
2. Upon termination of the employment relationship with a coach or athlete, if the contract is concluded for a period of 4 months or more - Art. 348.12 Labor Code of the Russian Federation.
3. If it is impossible to fulfill the obligations under the contract with the individual entrepreneur. The application is submitted through local authorities.

It is important to know: during work for any reason, the employee must properly fulfill his job responsibilities on the basis of an agreement concluded with the employer and job descriptions. If personnel fail to show up for work, dismissal under the article is possible.

The legislation does not provide for such a concept as “working off”. This term is not of a legal nature and means a warning to the employer for a certain period of time to terminate the contract with the fulfillment of obligations as usual within the specified period.

Reasons for voluntary dismissal without work

Termination of employment relations is possible by mutual consent of the employee and the employer on the day of signing the contract or at any other time within the 14 days stipulated by law (Article 81 of the Labor Code of the Russian Federation).

Other grounds for termination of relations the next day after filing an application may be established by the employment contract, internal rules labor order in an organization or individual entrepreneur.

These include:

1. Care at the own request of a retired employee.
2. Pregnancy.
3. Maintenance of a child under 14 years of age or a disabled person upon provision of a medical report.
4. Poor health – the employee cannot work at the place of employment for an objective reason. A certificate from the medical institution is provided.

This is interesting: during the working period, if vacant position If a new person is not found, the employee has the right to cancel his resignation. In this case, the employer cannot prevent the employee from taking the notice and continuing to perform work duties as usual.

If a person is fired but has not been paid his wages, he has the right to demand a calculation taking into account the accrued penalties. The penalty is assumed to be equal to 1/300 of the refinancing rate for each day of delay. This is indicated in the application to the court or labor inspectorate.

Payments are established by a court order or decree, which, upon entry into force, are binding on the enterprise. Collection is carried out by the Service forcibly on a compulsory basis.

Some tricks - how to avoid detention

In exceptional cases, no work is required:

1. Admission to higher education educational establishments when providing an order for training.
2. When going on annual paid leave, if it is 2 weeks, subject to prior submission of a letter of resignation 14 days in advance (Article 127 of the Labor Code of the Russian Federation).
3. If the husband or wife is transferred to work abroad or to another region. It is necessary to confirm the circumstance with an order, then dismissal without service will be legal.
4. In case of violations labor legislation employer: regular non-payment wages, lack of annual payment. All specified facts must be recorded in a conclusion labor inspection, a court order or a response to a complaint to the prosecutor's office.
5. The leave on sick leave coincided with the two-week work period before dismissal.

Sample letter of resignation

In an application for termination of a contract without working within the framework, the following details must be indicated:

• grounds for termination of the contract – Art. 80 Labor Code of the Russian Federation;
• date of dismissal - the employer can agree with it or set a different period - this is his right, not an obligation;
• full name of the employee;
• comment on the termination of obligations without working off - pregnancy, serious health condition, change of place of residence, enrollment in a university, etc.;
• attachment of documents confirming the reason for leaving the workplace.

The document contains the date of submission of the application and the signature of the employee.

You can download a sample letter of resignation without service.

Take into account: unified form There is no document, but it is better to take a sample as an example, this will help to avoid mistakes when filling out. In addition, amendments may often be made to the document form.

The paper is prepared in two originals: one is given to the employer, the second is marked with receipt indicating the date and number of the incoming person. It remains in the employee’s hands in order to confirm his intentions and to provide an evidentiary basis in the event of a dispute.

How to quit without working for 2 weeks: instructions

In order to receive dismissal without service, you must complete the following steps:

1. Submit an application for dismissal and attach documents justifying the need for urgent termination of the contract: medical report, notice of leave, sick leave, pension certificate, etc. Or, by agreement, along with the application, an agreement to the employment contract on termination of duties is drawn up.
2. The listed grounds for termination of a contract without working out are not listed in the law. Satisfaction of such a request is at the discretion of the company. However, if there are good reasons, if a specialist is denied dismissal, he has the right to file a claim in court, which in most cases is inclined to favor the employee’s position.
3. Wait until the day of dismissal. With and vacation is the next day after the end of their terms. For health reasons and in connection with transfer - the day after filing an application on the basis of Article 127 of the Labor Code of the Russian Federation.
4. The employer pays for vacation or sick leave in full, and the employee receives a payment.
5. On the last day of work, a work book, dismissal order and other necessary documents are issued.

Good to know: The calculation upon dismissal includes the amount for annual paid leave, bonuses and other payments due to the employee for the period of activity. Personnel cannot be deprived of these benefits due to urgent leaving of their workplace. All amounts are subject to personal income tax in accordance with the procedure adopted for tax accounting, and also deductions are made to the Pension Fund and the Social Insurance Fund of the Russian Federation.

As can be seen from the content of Art. 80 of the Labor Code of the Russian Federation, there are quite a lot of circumstances that make it possible to complete work without working off. You may not go to your place of employment the next day after submitting your application if the employer violates the terms of the employment contract or the employee has valid reasons for urgent termination obligations.

The main thing is to fill out the documents correctly: an application and, if agreed with the company, an agreement to terminate the employment contract without working off.

Watch the video in which a specialist explains the nuances of voluntary dismissal with and without work:

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1. Article 80 of the Labor Code of the Russian Federation establishes a general (unified) procedure and conditions for termination at the initiative of an employee of both a fixed-term employment contract and an employment contract concluded for an indefinite period. That is, the possibility of terminating an employment contract before its expiration at the initiative of the employee is not related to the presence of valid reasons. An employee has the right to terminate any employment contract at his own request and at any time. He is only obliged to notify the employer about this in writing no later than 2 weeks in advance. The head of the organization is obliged to warn the employer (the owner of the organization’s property or his representative) in writing about early termination employment contract no later than one month in advance (see commentary to Article 280). An employee who has entered into an employment contract for a period of up to 2 months, as well as an employee employed seasonal work, are obliged to notify the employer in writing 3 calendar days in advance of the early termination of the employment contract (see commentary to Articles 292, 296).

2. A written form of resignation is required. An employee's oral statement about termination of an employment contract cannot be the basis for the employer to issue a corresponding dismissal order. The obligation of the employee provided for by the Labor Code to notify the employer of termination of the employment contract at his own request no later than 2 weeks (the head of the organization - one month in advance) means that he can do this for a longer period. Two weeks (a month) is the minimum period within which the employee is obliged to notify the employer of his desire to stop labor Relations. The notice period begins the day after the employer receives the employee’s resignation letter. So, if an employee submitted a letter of resignation on June 1, then the 2-week period expires on June 15. This day will be the last day of work (day of dismissal) (see commentary to Article 84.1).

3. In accordance with Part 2 of Article 80 of the Labor Code of the Russian Federation, by agreement between the employee and the employer, the employment contract can be terminated before the expiration of the established notice period. It should be borne in mind that in this case the basis for dismissal will be the employee’s own desire, and not the agreement of the parties provided for in paragraph 1 of Art. 77 TK. Termination of an employment contract by agreement of the parties is possible only when the employer’s consent to dismissal has legal significance and without such consent the employment contract cannot be terminated (see commentary to Article 78). In the case where the employee himself has expressed a desire to terminate the employment relationship and asks to be dismissed before the expiration of the established notice period, the employer’s consent to the termination of the employment contract itself has no legal significance. It only matters for determining the specific date of dismissal, because the employee asks to be dismissed before the expiration of the period established for notice of voluntary dismissal. If the parties have agreed to terminate the employment contract before the expiration of the established notice period, the employment contract is terminated on the basis of clause 3 of Art. 77 TC per day determined by the parties.

The agreement of the parties on early (before the expiration of the 2-week period) termination of the employment contract must be expressed in writing, for example, in the form of an employer’s resolution on the application of the employee who requested dismissal from a specific date. An oral agreement between the parties cannot be evidence of such an agreement.

If the employer does not agree to terminate the employment contract before the expiration of the notice period, the employee is obliged to work for the established period. Early termination of work in this case is a violation of labor discipline. Termination of work without notice of dismissal will also be a violation of labor discipline. An employee who leaves work without permission may be fired for absenteeism. In turn, the employer does not have the right to dismiss an employee before the expiration of 2 weeks after he submits an application for termination of the employment contract, if the application does not indicate the date of dismissal, or before the expiration of the period specified in the application. During the entire notice period, the employee retains his workplace(job title).

4. If an employee’s application for voluntary resignation is due to the impossibility of continuing work (enrollment in an educational institution, retirement, or the presence of other valid reasons due to which the employee cannot continue further work, for example, sending a husband (wife) to work abroad , to a new place of duty), the employer is obliged to terminate the employment contract within the period specified in the employee’s application. The same obligation arises for the employer in cases of violation by the employer of labor legislation and other regulatory legal acts containing labor law norms, local regulations, the terms of a collective agreement, agreement or employment contract. It is necessary to keep in mind that these violations can be established, in particular, by bodies exercising state supervision and control over compliance with labor legislation, trade unions, labor dispute commissions, and the court (clause 22 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 city ​​N 2).

5. The need for termination of an employment contract may arise for an employee not only during the period of work, but also at a time when he is absent from work for some reason, for example, during a period of temporary disability, while on vacation, or on a business trip. In this regard, the question arises: does the employee have the right to submit a notice of resignation at his own request at this time and does it count towards the period of notice for dismissal of his own free will?

The answer to this question follows from the main purpose of the notice of dismissal, namely: to enable the employer to select a new employee to replace the person resigning on his own initiative. By notifying the employer of dismissal in advance in writing, the employee provides him with such an opportunity. It doesn’t matter whether he is at work, on vacation or sick. From the moment the resignation is submitted, the employer has the right to begin searching for a new employee. Therefore, all this time from the date of filing the application for resignation at one’s own request is counted towards the notice period for dismissal.

If an employee on vacation requests to be dismissed during the vacation period and before the expiration of the statutory notice period, and the employer agrees to this, the dismissal is carried out within the period requested by the employee.

The employer has the right to terminate the employment contract with the employee upon expiration of the notice period for dismissal at his own request and in the event that the employee becomes ill during the notice period and continues to be ill at the end of the notice period, because time of illness does not suspend the period after which the employee is subject to dismissal. Dismissal of an employee at his own request in accordance with his application is also possible during a period of temporary incapacity, because the initiative to dismiss comes from the employee, not from the employer.

6. An employee’s filing of an application to terminate an employment contract at his own request is not always the employee’s actual desire to terminate the employment relationship.

Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 clarifies that termination of an employment contract at the initiative of an employee is permissible in cases where filing a resignation letter 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 these circumstances are subject to verification and the obligation to prove them rests with the employee (subparagraph “a”, paragraph 22). At the same time, any pressure from the employer, incl. and the threat to fire him on his own initiative in cases where the employer had any reasons for this. Otherwise, we cannot talk about termination of the employment contract at the initiative of the employee. The Laginsky District Court of Elista came to this conclusion quite correctly, satisfying the claim for reinstatement of the citizen. U., who submitted her resignation of her own accord under pressure from her manager, who threatened to “ruin her work record” by dismissing her “under article” for losing a report and failing to submit it (see Review judicial practice Supreme Court of the Republic of Kalmykia for the consideration of civil cases in cassation and supervisory procedures in 2006 // Bulletin of the Supreme Court of the Republic of Kazakhstan. 2007. N 1).

7. In accordance with Part 4 of Article 80 of the Labor Code of the Russian Federation, an employee who has warned the employer about terminating an employment contract at his own request has the right until the expiration of the warning period (and when granting leave with subsequent dismissal- before the start of the vacation) to withdraw his application, and dismissal in this case is not made, provided that another employee is not invited to take his place in writing, who, in accordance with the Labor Code and other federal laws the conclusion of an employment contract cannot be refused (subparagraph “c” of paragraph 22 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2). For example, an employee who has submitted a resignation letter of his own free will cannot withdraw his application if another employee is invited to his workplace (position) by way of transfer from another organization in agreement with the heads of these organizations, because in accordance with Art. 64 of the Labor Code, such an employee cannot be denied an employment contract within a month from the date of dismissal from his previous place of work (see commentary to Article 64).

8. After the expiration of the notice period for voluntary dismissal, the employer has no right to detain the employee. No reasons (monetary debt, the need to finish work begun, material assets not handed over, a hostel not vacated, etc.) can serve as a basis for this. On the day of dismissal - the last day of work - the employer is obliged to give him a work book with a notice of dismissal entered in it, other documents at the written request of the employee and make a settlement with him. On this day, the employee may be released from work for the time necessary to receive the payment and work book, if for objective reasons he cannot do this at the end of the working day (shift). If the employee is absent from work on the day of dismissal, then the employer on the same day must send him a notice of the need to appear for a work book or agree to send it by mail. Sending a work book by mail with delivery to the specified address is allowed only with the consent of the employee (clause 36 of the Rules for maintaining and storing work books) (see commentary to Article 84.1).

In the event that the employer does not dismiss the employee after the expiration of the notice period, the employee has the right not to go to work.

9. If, after the expiration of the notice period, the employment contract has not been terminated and the employee does not insist on dismissal, the employment contract is considered to be continued. At the same time, any additional agreements on this occasion is not required.

By assigning to the employee the right to terminate the employment contract on his own initiative at any time, Art. 80 of the Labor Code of the Russian Federation does not oblige an employee, upon dismissal of his own free will, to indicate in the application the reason why he wants to terminate the employment contract. But if the reason for dismissal in accordance with the law depends on the provision of certain benefits or guarantees to the employee, then such a reason must be indicated in the application.

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 this Code 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 even 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 organization, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts containing labor law norms, local regulations, 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 statement.

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 this Code and other federal laws, cannot be denied 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.

Commentary on Article 80 of the Labor Code of the Russian Federation

1. The commented article regulates the procedure for termination, at the initiative of the employee, of both a fixed-term employment contract before its expiration, and a contract concluded for an indefinite period.

2. The employee’s will to terminate the employment contract must be expressed in writing. All other forms of such expression of will have no legal significance. The corresponding employee initiative is usually expressed in the form of a statement.

In practice, there are often cases when an employer delays making payments to an employee and issuing a work book to him, citing the fact that the employee did not fill out the so-called bypass sheet, did not hand over the material assets he accepted, etc. This type of practice is not provided for by labor legislation and is therefore illegal. Moreover, after the expiration of the notice period for dismissal, the employee has the right to stop working, and the employer is obliged to issue him a work book on the day of dismissal (last day of work) and, upon the written request of the employee, copies of documents related to the work, as well as pay all amounts due to him from the employer (see Art. 62, 140 Labor Code and commentary thereto).

3. Termination of an employment contract at the initiative of the employee is possible at any time and without specifying the reasons that served as the basis for dismissal. However, if the employee believes that the reason that determined his intention to terminate the employment contract is significant, he can indicate it in his resignation letter. Accordingly, this reason is indicated in the order to terminate the employment contract, on the basis of which an entry is made in the employee’s work book.

4. The Supreme Court of the Russian Federation draws the attention of courts to the need to proceed from the fact that termination of an employment contract at the initiative of an employee is permissible in cases 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 (subparagraph “a”, paragraph 22 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “ About the application by courts Russian Federation Labor Code Russian Federation"). However, the employer’s threat to terminate the contract with him on his own initiative cannot be considered as forcing an employee to resign at his own request, provided that the employer had grounds for this provided for by law (see Article 81 of the Labor Code and the commentary thereto ).

5. If, before the expiration of the notice period for termination of the employment contract, the employee refuses to be dismissed at his own request, he is considered to have not submitted an application and cannot be dismissed on the grounds in question. An exception is the case when another employee is invited in writing to replace the resigning employee, who by law cannot be refused to conclude an employment contract. The wording of the commented article is quite unambiguous: we mean only those cases when another employee is invited, and in writing, to replace an employee who resigns at his own request, i.e. a person employed by another employer who is dismissed by transfer to this employer (see Article 72, paragraph 5 of Article 77 of the Labor Code and commentary thereto). Accordingly, all other statutory guarantees for concluding an employment contract (see Article 64 of the Labor Code and the commentary thereto) do not apply to the situation provided for in the commented article. For example, an employee cannot be denied annulment of a voluntary resignation on the grounds that his position is expected to be filled by a pregnant woman who has been promised the job.

When granting leave with subsequent dismissal in the event of termination of the employment contract at the initiative of the employee, this employee has the right to withdraw his application for dismissal before the start of the leave, if another employee is not invited to take his place by way of transfer (see Article 127 of the Labor Code and the commentary thereto) ). If, while on vacation, the employee becomes temporarily incapacitated, as well as in the presence of other valid reasons, the vacation must be extended by the appropriate number of days (see Article 124 of the Labor Code and the commentary thereto), and the day of dismissal is considered the last day of vacation. However, if the employee insists on terminating the employment contract from the initially determined date, his request must be satisfied.

Since the law provides for a mandatory written form for filing an application for resignation of one’s own free will, it should be assumed that the employee’s will to cancel this application must be expressed in the same form.

6. 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 contract continues. Thus, the fact that the employee’s work period has expired excludes the possibility for the employer to terminate the employment contract on the grounds in question, if “the employee does not insist on dismissal.” The latter formulation is broad and vague. It should be assumed that this applies to the case when, after the expiration of the notice period for dismissal, the employee returned to work and was allowed to work (i.e., continued to perform duties according to employment contract). At the same time, part 6 of the commented article should also apply when the employee expressed a desire to continue working and was not allowed to work, but the employer delayed the issuance of a work book, other documents required by the employee related to the work, as well as settlement with him.

The forms in which an employee can “insist on dismissal” are not defined by law. The most obvious is termination of work upon expiration of the notice period; however, the employee’s expression of will in other forms when continuing work is not excluded. In the latter case, dismissal must be carried out within other terms agreed upon by the parties.

It should be borne in mind that the employee’s demand in question has legal significance only at the time of expiration of the working period. If the employment contract was not terminated upon expiration of the service period, the employee continued to work, and subsequently demanded termination of the employment contract with him with reference to Part 6 of the commented article, such a requirement cannot be considered legal: the employment contract must be terminated according to the rules established by the commented article article, including working out the established notice period for dismissal.

7. The period of notice by the employee to the employer about the upcoming dismissal is determined by labor legislation. In accordance with the commented article, an employee, when terminating an employment contract, is obliged to notify the employer about this in writing no later than two weeks in advance. Consequently, notice of voluntary dismissal can be given earlier than two weeks.

Temporary or seasonal worker must notify the employer about this three days in advance (see Articles 292, 296 of the Labor Code and commentary thereto). The same period is provided for the dismissal of an employee at his own request during the probationary period (see Article 71 of the Labor Code and the commentary thereto). The head of an organization has the right to terminate an employment contract early by notifying the employer (owner) of the organization’s property no later than one month in advance (see Article 280 of the Labor Code and the commentary thereto). The expiration of the period begins the next day after the calendar date on which the application was submitted (see Article 14 of the Labor Code and the commentary thereto).

Absence of an employee from work good reasons(for example, due to temporary incapacity for work) is not a basis for extending the period of service upon dismissal of one’s own free will. At the same time, the employee’s refusal to dismiss may be declared by the employee during his absence from work for the specified reasons.

As a general rule, unilateral reduction of the working period is not allowed. So, if an employee left work without working the period established by law, then this fact is regarded as absenteeism, giving grounds to dismiss the employee at the initiative of the employer (subparagraph “a”, paragraph 6 of Article 81 of the Labor Code). At the same time, judicial practice proceeds from the fact that an arbitrary reduction of the working period by the employer, without the consent of the employee, or dismissal without working off, gives the employee grounds to demand reinstatement at work with payment for the time of forced absence.

There is one exception to this rule, when the reduction of the period is due to valid reasons, the list of which is given in Part 3 of the commented article. Among such cases, one can indicate the entry of an employee into military service under a contract (see Article 83 of the Labor Code and the commentary thereto).

The fact of violation by the employer of laws and other normative legal acts containing labor law norms, the terms of a collective agreement, agreement or employment contract, as a circumstance obliging the employer to terminate the employment contract within the period specified in the employee’s application, can be established, in particular, by the bodies implementing state supervision and control over compliance with labor legislation, trade unions, labor unions, courts (subparagraph “b”, paragraph 22 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2). In these cases, the employer is obliged to terminate the employment contract within the period requested by the employee.

In all other cases, the agreement of the parties must be reached regarding the termination of an employment contract at the initiative of the employee without working out the period established by law or with a reduction in this period (subparagraph “b”, paragraph 22 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2). It can be expressed in the form of a written statement from the employee about resignation of his own free will, indicating in it the conditions for dismissal without service or with a shortened period of service, or a corresponding order from the employer containing the signature of the resigning employee. Since the Labor Code does not provide for a form of agreement between the employee and the employer regarding the period of service upon dismissal at their own request, such an agreement can also be reached orally. However, the difficulty of proving the existence of this agreement should be taken into account.

8. As a general rule, if there is another reason for terminating an employment contract (for example, a change in the owner of the organization (see Article 75 of the Labor Code and the commentary thereto), transfer to work for another employer or to elective position(see Article 77 of the Labor Code and commentary thereto), refusal of the employee to continue working due to a change in the essential terms of the employment contract (see Article 74 of the Labor Code and commentary thereto), refusal to transfer to another job in accordance with a medical report , refusal to transfer due to the employer’s relocation to another location (see Article 72.1 of the Labor Code and commentary thereto)), priority should be given to the employee’s expressed will to resign at his own request.

Submitting a written resignation letter by an employee at his own request cannot be considered a circumstance excluding the possibility of termination of an employment contract with him on the initiative of the employer - if there is any established by law grounds.

9. For the specifics of terminating an employment contract with an athlete on the latter’s initiative, see Art. 348.12 TC and commentary thereto.

Article 80. Termination of an employment contract at the initiative of the employee (at his own request)

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 this Code or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter.

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 organization, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts, containing labor law norms, local regulations, terms of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee’s application.

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 this Code and other federal laws, cannot be denied 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 or provide information about labor activity(Article 66.1 of this Code) from this employer, issue other documents related to work, upon the written application of the employee, and make a final settlement with 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.

Commentary to Art. 80 Labor Code of the Russian Federation

Judicial practice under Article 80 of the Labor Code of the Russian Federation

Decision of the Supreme Court of the Russian Federation dated August 20, 2002 N GKPI2002-771

The Labor Code of the Russian Federation does not regulate relations on compulsory social insurance, therefore the applicant’s arguments about the inconsistency of the provisions of the contested normative acts of Art. 6 of the International Covenant on Economic, Social and Cultural Rights art. Art. , , , Labor Code of the Russian Federation and the violation of the applicant’s rights to freely dispose of his ability to work are not based on the law.

1. In his complaint to the Constitutional Court of the Russian Federation, citizen Yu.V. Rogov requests that part three of the article of the Labor Code of the Russian Federation be recognized as contradictory to Article 37 (parts 1, 2 and 3) of the Constitution of the Russian Federation, according to which, in cases of established violation by the employer of laws and other regulatory legal acts containing labor law norms, the terms of a collective agreement, agreement or of an employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee’s application.

By the decision of the Lakhdenpokhsky District Court of the Republic of Karelia dated December 14, 2004, the claims were partially satisfied. The wording of the grounds for G.'s dismissal was changed, entry No. 25 in G.'s work book was declared invalid. The children's music school in Lakhdenpokhya is obliged to make an entry in its work book about the invalidity of entry No. 25 and the entry “dismissed on September 1, 2004 at its own request on the basis of Article of the Labor Code of the Russian Federation.” 18,290 rubles were recovered from the children's music school in Lakhdenpokhya in favor of G. 88 kop. for the delay in issuing a work book, compensation moral damage in the amount of 3,000 rubles, in reimbursement of costs associated with the consideration of the case, 525 rubles. The rest of G.'s claim was rejected.

As the applicant points out, clause 7.2 of the contested normative legal act regarding the words: “for good reasons” contradicts part three of article of the Labor Code of the Russian Federation.

On August 18, 2005, she appealed to the administration kindergarten with a letter of resignation in connection with moving to permanent residence in Moscow from the moment of filing the application. The administration refused to terminate her employment contract before the expiration of the two-week period.

Ya. appealed to the Supreme Court of the Russian Federation with an application to invalidate clause 7.2 of the Explanation regarding the words “for good reasons.” At the same time, the applicant indicated that this paragraph of the Explanation regarding the words: “for good reasons” contradicts part three of article of the Labor Code of the Russian Federation.

According to an article of the Labor Code, an employee has the right to terminate an employment contract by notifying the employer in writing two weeks in advance.

By agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal.

According to Article 37 (Part 1) of the Constitution of the Russian Federation, labor is free; Everyone has the right to freely use their ability to work, choose their type of activity and profession. In accordance with these constitutional provisions, an employee has the right to terminate an employment contract with an employer at any time by warning him in advance in writing. At the same time, the requirement addressed to the employee to notify the employer about his dismissal no later than, as a general rule, two weeks in advance (part one of article of the Labor Code of the Russian Federation) is due to the need to provide the employer with the opportunity to promptly select a new employee for the vacant position, and secured by part four of the same article The employee’s right to withdraw his application before the expiration of the notice period for dismissal (unless another employee is invited in his place in writing and who cannot be denied an employment contract) is aimed at protecting the employee’s labor rights.

Kh. filed a lawsuit against the district administration for reinstatement at work, recovery of wages for the period of forced absence and compensation for moral damage. She motivated her demands by the fact that she was fired in violation of the procedure established by Art. Labor Code of the Russian Federation.

Representative T., by proxy I., did not agree with B.’s demands, explaining that the applicant did not indicate what the violation of his rights was. G., to whom T. was directly subordinate, has currently gone on leave in connection with participation in the upcoming elections and the basis provided for in subparagraph “l” of Part 1 of Art. 29 of the Federal Law “On Basic Guarantees...”, which prevented T. from holding the position of chairman and member of the territorial election commission, has disappeared. In addition, on August 30, 2005, he submitted a letter of resignation from the position of head of the Zelenograd Cleanliness Municipal Unitary Enterprise effective August 31, 2005 in accordance with Part 3 of Art. Labor Code of the Russian Federation in connection with previous violations of labor legislation in relation to him by the manager municipality G., but his dismissal was unreasonably denied.

K.A. filed a lawsuit against fire department No. 31 of the State Fire Service for the protection of the urban settlement. Alexander Nevsky Government institution Ryazan region"Center for Fire Safety, Civil Defense and Emergency Situations" for reinstatement, recovery of average earnings for the period of forced absence and compensation for moral damage, citing the fact that he was wrongfully dismissed on the grounds established by the article of the Labor Code of the Russian Federation, and namely: of one's own free will.

Meanwhile, this conclusion of the court does not correspond to the articles of the Labor Code of the Russian Federation, since on February 9, 2007, at the time of withdrawal of the application for dismissal, M. continued to work in the same place, the defendant had not yet become obligated to conclude an employment contract with her, in hiring she could have been denied a job as a transfer.

When fired, the working class does not want to work for two weeks, as required by the employer. There can be many reasons - inability to continue working for health reasons, lack of time, urgent transition to a new job. How to avoid “working off” and legally stop working immediately after a notice of resignation? Explained below

The procedure for dismissal at will without warning to superiors is prescribed in Article 80 of the Labor Code of the Russian Federation, Part 3. It says the following:

1. An employee may resign without notice 2 weeks in advance on his own initiative, if the reason for leaving work is insurmountable circumstances that prevent the performance of work duties. The article identifies only two examples of such obstacles - reaching retirement age and starting university studies.
2. A worker also has the right not to work for 2 weeks after the announcement of his decision if his boss (employer) violated the employment contract or other written agreement between the organization and the employee.

But this formulation is very vague. It is necessary to examine each point in more detail in order to understand in which cases a company employee is obliged to continue working for 14 days, and when he has the right to leave immediately.

When is an employee required to work his required 14 days?

Legally, in Article 80 of the Labor Code of the Russian Federation on the dismissal of an employee at his own request without working off, there is no term “working off”. Working off 14 days upon dismissal is not prescribed in the Labor Code of the Russian Federation. This term is purely social and was introduced by employers for their own convenience. In fact, the employee is not legally required to fulfill his job responsibilities at least another two weeks. All he is required to do by law is to notify his superiors about his resignation at least fourteen days before the actual dismissal. At the same time, he can already submit all documents for payment, collect his things and leave (if he has been approved for sick leave, vacation, parental leave, or additional days off).

Due to the fact that the employee is not legally required to work off anything, the term “warning” will be used instead of “work off”.

So, a notice of dismissal must be given if the employee does not have any mitigating circumstances for leaving. More details about this rule:

1. If the employer did not violate its obligations or if violations of the labor code on its part were not officially recorded, the employee is obliged to fulfill his part of the agreement, that is, to warn his superiors about leaving.
2. If an employee resigns of his own free will due to a transfer to a position that is more convenient for him, he is also obliged to notify the company. Generally speaking, any circumstances of dismissal not related to studies, retirement, or a sudden change of residence are grounds for notifying the boss 14 days in advance.

Please note that the law does not clearly establish when you should warn your boss and when you can do without it (neither in the comments nor in the main article). Only three cases are clearly stated (see below). If an employee believes that he is resigning due to an insurmountable situation, but it is not specified in Article 80 of the Labor Code of the Russian Federation, a dispute may arise between the parties. It is better to resolve such a dispute peacefully, otherwise you will have to go to court on the issue of dismissal in one day without working off under Article 80 of the Labor Code.

Exemption from service without the consent of superiors

In Part 3 of Art. 80 of the Labor Code of the Russian Federation states that an employee may not notify his superiors about dismissal if:

• he is a pensioner;
• begins training (it is not specified whether it is part-time, full-time or evening).

In 2004, the Plenum of the Supreme Court of the Russian Federation (equivalent to Article 80 of the Labor Code of the Russian Federation “Dismissal of one’s own free will without service”) decided another reason why one can resign without prior notice - the transfer of a spouse abroad.

What to do in other situations? You can try to convince your boss that the reason for dismissal is an insurmountable circumstance. Since the list of these circumstances is not clearly stated anywhere, the decision remains with the manager. Having reached an agreement with him, you can spend 2 weeks outside the walls of the work institution.

However, the above method is not optimal, since the employer may refuse. It is better to try to find out whether the manager, during his career, has violated legal norms related to work, Labor Code norms, employment contracts with employees, and other written work agreements. You can immediately withdraw documents from the institution if one of these violations was recognized by the following authorities:

• court;
• commission on labor disputes;
• trade union;
• departments exercising state supervision over compliance with the provisions of the Labor Code.

There must be an official document that confirms the decision of the authority: not in the hands of the person leaving, but somewhere. If there is no official resolution, and the employer was simply suspected of violating Labor Code norms, this is not a sufficient basis for sudden dismissal.

Step-by-step guide: leaving work without working off

There are several options for leaving work without “working off”. Each of them is legal and does not violate the position of the Labor Code of the Russian Federation.

The main ways to avoid detention, not counting the above cases:

• take sick leave;
• take extra days off;
• go on vacation;
• leave on maternity leave.

Each method should be discussed step by step.

Dismissal on sick leave

Sick leave does not need to be approved by management. It is enough to show a certificate from a medical institution stating that it is necessary. The employer will be required to sign a document granting days off for treatment.

Immediately after signing the sick leave (preferably for 2 weeks or more), you can announce your decision to leave the organization. In this case, the requirements of the law will be met - the employee has notified in advance of his departure from the organization. The employer cannot cancel sick leave after notification.

How to avoid working through maternity leave

The employer also does not have the right to cancel maternity leave, since it is appointed for medical reasons. You can choose one of three options:

• announce the decision on dismissal, then immediately submit documents for maternity leave;
• while on maternity leave, a pregnant woman can call her boss or go to work building and voice the decision to leave;
• first submit documents for maternity leave, and immediately after signing them, inform about dismissal.

In none of the three cases can management refuse either dismissal or maternity leave. The employee goes on maternity leave, while he remains obligated to work 14 days upon dismissal under the Labor Code of the Russian Federation.

Dismissal before vacation or day off

The most controversial option is dismissal during vacation (or on the day the vacation was issued). This method is considered not the best because the employer can change the vacation schedule after the news of dismissal. This is not legal behavior, however, managers make changes in vacations with more confidence than other violations of the Labor Code.

Since there is a chance that leave will be refused (or an already issued period will be canceled), the dismissal should be reported when you have already reached the vacation period. So, you can submit an application on the first day (if the vacation is 2 weeks or more) or in the middle of the vacation (if the vacation is 4 weeks) - in both cases you will not have to perform work duties.

Example of a declaration order

The presence or absence of work does not depend on the application form. Only the reason for leaving indicated in the application matters. Those employees who have the following in the “Reason for dismissal” column can refuse to work off:

• start of studies in educational institution(college, university full-time, part-time, evening);
• reaching retirement age (regardless of whether the pensioner has just reached it or a calendar year ago);
• the beginning of the spouse's service abroad and relocation;
• violation of Labor Code established by authorized bodies on the part of management.

Other points do not matter when considering the issue of working off. A standard resignation form template.

How else can you refuse work?

You can easily quit without working if individual(the employee) at the time of announcing his decision does not attend work. During vacation, maternity leave, sick leave employee after submitting a letter of resignation, he simply continues to be on vacation, and the employer does not have the right to force him to “work” for 2 weeks. If the employee is already not fulfilling his duties due to vacation or sick leave, he will receive legal vacation contributions for another 2 weeks, after which he will officially be unemployed.

In an extreme situation, you can resort to the following measures - accuse the boss of violating the employment contract or Labor Code norms (though they are not officially registered). According to the law, an employer who has been convicted of such violations cannot demand a notice of dismissal from the employee. If managing person legally illiterate, it may take such an argument “at face value.” And only you will know that in fact it was necessary to warn the boss, because no one officially recorded violations of the Labor Code for him - neither the court, nor the inspectorate, nor other authorized bodies. This method is questionable because they break the law.

You can simply not show up for work. No one will send an employee to court for this. However, during the entire two weeks when he avoids his work duties, the person will still be listed in the organization. Absence from work will be regarded as absenteeism. For absenteeism, management deprives the employee of part of his pay. But the more dangerous thing he can do is leave a negative entry in the recommendations about the employee. It cannot be challenged in any way, because the person leaving did not actually attend the workplace and did not fulfill his duties, although according to the employment contract he was still registered in the organization.

Possible subtleties and nuances

Since the provisions under which an employee can abruptly resign are not clearly stated, a dispute arises between the parties. If this dispute cannot be resolved through negotiations, you can go to court or labor authorities authorized to resolve disputes of this nature.

It is better to contact the authorized labor authorities. All that is necessary is to get an opinion from them whether the conditions of dismissal are preferential (no need to stay another 14 days) or not. If the decision is positive, the employee has the right to leave immediately.

As a last resort, the parties go to court. This only makes sense if being forced to perform work duties has caused a strong moral and material damage the person leaving, if the situation is controversial, the person had to be fired probationary period, the boss wanted to fire the employee himself, but a dispute began about the initiative, etc.

By simply going on vacation, maternity leave, or sick leave, you can legally protect yourself from 14 days of “work.” It is better not to use other methods.

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