Is it possible to terminate an employment contract without working off. How to quit your job without a job? Labor Code of the Russian Federation: dismissal

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An employee may resign at his own request . For an employer, the sudden dismissal of an employee is associated with many inconveniences. Therefore, the law provides for a two-week working period. But there is always a chance that the employee will not want to work out the prescribed 2 weeks. The law provides for such an opportunity, and today we will talk about the nuances of dismissing an employee without working off.

How long does it take to notify an employer of a layoff?

The concept of mandatory working out is not provided for in the law. The employee must only warn the employer in advance that he intends to quit. Terms for different categories of workers vary. An ordinary employee must report 2 weeks in advance, and the head of the organization 1 month in advance. Employees on a probationary period, a fixed-term contract or seasonal work apply 3 days in advance. The turnaround time starts the next day.

At the same time, having announced the dismissal, many employees stop appearing at work, taking sick leave or vacation. Such conduct shall not serve as grounds for an extension of the term.

Leave followed by dismissal

By the time an employee ends their career in your organization, they may have unused vacation days. Before quitting, he has the right to take them off. To do this, he submits an application for leave with subsequent dismissal. The day of dismissal is considered the last day of vacation. But you can pick up an application only before the start of the vacation, then he will lose this opportunity.

It is more convenient for the employer to receive such a statement 2 weeks before the vacation, but the employee is not required to warn. The employer, for its part, also has no obligation to provide the employee with paid leave. It can be replaced with monetary compensation and force the employee to work out the due date - except for the case when the leave before dismissal coincides with the vacation schedule.

Upon receipt of the employee's application, issue an order to grant leave with subsequent dismissal. On the order, the resigning person must sign. If an employee falls ill on vacation, it is not necessary to extend it, but the sick leave will have to be paid. All calculations must be carried out before he goes on vacation, that is, on the last day. Then the employment relationship is considered terminated.

What to do if an employee changes their mind about leaving

The working period is needed not only by the employer, but also by the employee himself, in order to think everything over carefully. Within two weeks, he can change his mind and not leave the workplace. But things get more complicated if a new candidate has already been selected to take his place. At the same time, the obligation to hire a new candidate should not arise voluntarily, but by virtue of the law. For example, when transferring from another place of work, if the candidate has already quit from there.

If the order is not signed, there are no problems - the employee simply leaves a request to withdraw the application. But what if the order is signed, a note-calculation is drawn up, an entry is made in the work book and wages and compensations are paid? Then you have to spend a lot of effort: compensation must be returned, the entry in the book must be canceled, and the order must be canceled.

Should an employee work

You should receive a warning from the employee that he wants to leave soon. But there are circumstances that give him the opportunity to independently choose the day of dismissal and not work for 2 weeks.

Reaching retirement age. If an employee works as a pensioner and wants to quit, he is also not required to work.
Enrollment in the full-time department of an educational institution.
Transfer of a husband (wife) to a new workplace, and consequently, moving to another city or country.
Change of residence to another city or country.
Caring for a sick family member or a child under the age of 14;
Health problems.
When authorized bodies (prosecutor's office, labor inspectorate) detect salary delays, refusals to grant vacations and other violations of labor law. If the court fixes a violation of labor laws, and you refused to fire the employee within the specified period, you will have to pay a fine.
In addition, a pregnant woman or a conscript may leave the workplace without observing the terms of the warning. Under these circumstances, the employee must provide evidence. For example, an order for admission to a university for a student.

Is it possible to fire an employee without working for two weeks

Above, we examined the reasons that oblige an employer to dismiss an employee in one day. But the director may consider other reasons valid, or simply go to meet the employee and immediately sign the application.

The employer can dismiss the employee on the day the application is submitted, without working off. In this case, the basis for dismissal will change - dismissal by agreement of the parties. Dismissal by agreement of the parties is different in that, in addition to the order, a dismissal agreement is signed with the employee.

If the dismissal is formalized simply with a “Dismiss” visa on the application, write in the work book that the employment contract was terminated at the initiative of the employee, clause 3. Art. 77 of the Labor Code of the Russian Federation.
If an agreement is signed with the employee and an order is issued, the employment contract is terminated by agreement of the parties, clause 1 of Art. 77 of the Labor Code of the Russian Federation.

In judicial practice, there are cases when employers force an employee to sign an application on their own, while putting down false dates. It is unacceptable! Only an employee can initiate an application of his own free will. Such requests from superiors are illegal, and are easily challenged in court. The least that threatens the violator is the payment to the employee of the average salary for the entire period of the forced pass.

Dismissal of an employee without working off at his own request

To fire an employee on your own, you need to issue an order. The order is based on the submitted application and includes its details. As a basis for dismissal, indicate - clause 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

Draw up a dismissal order no later than the last day of work. But keep in mind that the accounting department must prepare for the dismissal of an employee and make all the necessary payments and calculations. Therefore, it is better to issue an order in advance. Together with the order, a note-calculation is made. Familiarize the resigning employee with the order, if it is impossible to obtain his signature, make an appropriate entry. Before issuing a work book, make a record of dismissal indicating the article.

Even if the employee has not completed the due date, he retains all rights. On the last working day, it is necessary to calculate it, issue a salary, vacation pay and compensation, if any, and give all documents. The employee also retains the right to appeal to the prosecutor's office or to the court if the authorities violate his rights.

For all days of delay in payment, management must pay the average salary. The work book must also be returned on time, otherwise you will have to compensate for material damage for each day the book is kept, because its absence does not allow you to get a new job . In the book, the date of dismissal is indicated by the number when the employee receives it in his hands. If the employee did not come for the book and refused to receive it by mail, there is no responsibility on the employer.

How to fire an employee who does not want to quit

Poor employer-employee relationships can lead to more than just abandonment. It may be necessary to fire an objectionable employee, but this is not so easy, especially if he does not want to leave. Judicial practice shows that most often the court stands up for the protection of the rights of the employee, and not the employer, therefore, it is necessary to take an extremely responsible approach to the dismissal of employees, and have valid grounds for this.

The first step is to discuss all the circumstances of the dismissal with the employee. It may be possible to agree on dismissal on their own or by agreement of the parties. In such cases, the employee usually expects some kind of compensation, so you should prepare for material costs. But it will be possible to avoid documentary red tape and litigation. And how can an employer dismiss an employee if he does not agree to any conditions?

Article 81 of the Labor Code lists all the grounds for dismissal of an employee at the initiative of the employer:

reduction;
inconsistency with the position held;
change of ownership
repeated non-fulfillment by the employee of labor duties;
single gross violation of labor duties;
committing wrongdoing;
submission of false documents when concluding an employment contract.

The variety of reasons for dismissal is impressive, but all of them are related to the need for strict documentation, material costs and the possibility of challenging in court. Therefore, many employers try to fire an employee on their own. But this method should not be resorted to if the employee's rights are openly violated. As a last resort, we recommend that you draw up an additional agreement, which includes the clause "the parties have no claims against each other." This will help to avoid problems if the employee suddenly changes his mind about quitting and files a lawsuit.

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The legislation of the Russian Federation regulates the procedure for dismissal, hiring, provides for the rights and obligations of the relevant parties (employee and employer). These provisions are within the framework of the Labor Code of Russia and its Constitution.

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In this article, we will cover the following details:

what does article 78 of the Labor Code of the Russian Federation mean;
whether the manager can dismiss the employee in accordance with the agreement;
what categories of citizens are exempted from "working off" lasting 14 days (what is meant by "working days");
how to draw up a corresponding application for a person, we will present a sample document;
the procedure for dismissal of employees.

What means

Article 78 of the Labor Code of the Russian Federation states that the parties have the right to terminate the contract of the same name at any time in accordance with their agreement.

Attention should also be drawn to two comments on this provision:

the freedom of the contractual document is guaranteed, it is provided by the Law, both at the stage of its conclusion, and at the time of cancellation by agreement of the manager and employee. The article legally fixes the relevant procedures;
termination in accordance with Article No. 78 of the Labor Code of the Russian Federation is applicable to both fixed-term and open-ended employment contracts. The agreement of both parties is the main reason for the cancellation of the document, which does not require other circumstances.

Important! The employee is not required to write a letter of resignation of his own free will. The relevant article applies to care by agreement of the parties. Even at the initiative of the employee, the termination of the employment contract does not provide for a two-week working off (an analogy - Art. 80).

Is it possible to dismiss an employee without working off by agreement of the parties

Such actions are allowed. A manager may terminate an employee for the following reasons:

Saving money , avoiding unnecessary waste.
The person treats colleagues, management, or the work itself incorrectly.
The citizen turned out to be weak in the knowledge of his profile, but has the appropriate education.

He is obliged to warn the employee about his intention and invite him to terminate the contract, both “at his own request” by the subordinate, and by general agreement (article number 77 of the Labor Code of Russia). In the latter case, the employee will also not have to work for 2 weeks.

The legislation prescribes circumstances when an employee cannot be fired at all, either with or without working off:

mother on maternity leave;
a citizen who received a sick leave;
a person who has been granted legal leave.

We remind you that the employee (at his own request or by agreement with the management) has the right to leave the place at any time convenient for him.

Who has the right not to work for two weeks

There are several categories of citizens who have the right to leave the workplace without working a two-week period. There are also circumstances that allow individuals not to perform similar actions.

employees on probation (the fact must be taken into account in the contract);
persons engaged in official labor activities in accordance with Article 292 of the Labor Code of the Russian Federation (piecework work). This means that citizens hired for a certain period of time to perform a particular type or established by the employer are also exempted from working off. Condition: the contract is concluded for less than or exactly 2 months;
personnel performing work that is officially classified as seasonal. Art. 296 of the Labor Code informs: the relevant persons are not entitled to a two-week working off if the contract with them is concluded for less than or for 2 months, and the document indicates that the activity was really carried out according to the season.

Citizens described in the last two paragraphs of the list work three calendar days , and in the first - 3 working days.

The following situations are special circumstances:

The employee is dismissed by agreement of the parties. Such citizens are not required to work.
The employee started his studies at the Higher Educational Institution. Before the start of training, the retiring applicant is required to submit a certificate of enrollment to the employer.
A member of the staff became a pensioner - reached the appropriate age.
Proven violations of the current legislation or norms of behavior on the part of the manager in relation to the employee.
Untimely payments or non-payment of salaries, benefits, sick leave, vacation and other compensations.
The workplace is not properly equipped. The employee is unable to work.
A member of the staff has a family in which there are citizens under the age of 14.
The health of the employee deteriorated sharply, which led to an urgent dismissal at his request.
Any personal or family circumstances , confirmed by this or that documentation.
The employee has a large family. 3 or more children are his dependents, age - up to 16 years. If they are studying at a university, then until graduation.
The employee is pregnant, the relevant fact must be documented (certificate from gynecology).
A staff member is required to care for a disabled child or other relative who has been assigned a Group 1 disability. Similarly, medical certificates are required.
Moving spouse or wife to another region. The corresponding fact and the need for an urgent departure from work are documented.

Cases are not limited to the circumstances listed above.

How to write an application and its sample

Specifically, there is no specific form for resignation of one's own or the will of both parties. The employee has the right to draw up an appropriate document, both by hand and using a personal computer.

Procedure:

on the top right, write the addressee of the head in the dative (to whom, what) case, indicate the name of the enterprise;
below, in large letters: "STATEMENT";
from the red line: “I, Surname, First Name, Patronymic, position, I ask you to dismiss me by agreement without a two-week working off, because.” Be sure to include a document proving the reason for the respective departure from work. You can show the original to the employer, and attach a copy to the application;
put the date of submission, signature and its transcript.

Document example:

Dismissal procedure

The order is:

The employee submits an application to the employer. The boss gets acquainted with the document and calls the employee for a conversation.
The issue is resolved, the necessary time passes.
The head prepares a dismissal order, issues it in two copies. One is given to the employee, the second paper remains in the personnel department.
The employer pays against signature all the established compensations, including for unused vacation.
In the work book, he leaves an entry: “Fired by agreement of the parties”, assures her, puts the date. The document is given to the employee.

Article 78 of the Labor Code of the Russian Federation “dismissal without working off two weeks” was not changed in 2019. It guarantees the rights of parties wishing to cancel an employment contract by their agreement.

In case of unlawful actions on the part of the employer, the employee is recommended to apply to the Court.

Currently, labor relations are well developed. In order to regulate them, a special branch of civil law was created - this is labor law. According to its code, every citizen is obliged to notify his employer in advance of his desire to quit.

The application must be submitted two weeks before the end of employment date. But not everyone knows that there are exceptions to this paragraph. If necessary, you can quit without working off. Do not forget that labor law primarily protects employees, not employers. True, it will not be enough to quickly write a statement.

Quit without work on the day of application

Few people know that every employee has the opportunity to quit right on the day the application is submitted. This can be done under certain conditions. It is important to know how to quit without working out correctly , so that later there are no problems with work.

Peace agreement of the parties

The easiest way is to carry out dismissal from work without working off with a peaceful agreement between the parties. Article 77 of the Russian Labor Code notes that it is possible to dismiss an employee on the day the application is submitted if neither of the parties has claims against each other on this issue. Before looking for an answer to the question of whether it is possible to quit without working off and how to do it, you should just talk to your employer and try to negotiate amicably. In addition, a resigning employee can recommend someone to his place of work. Such a replacement can significantly speed up the process of his dismissal.

good reasons

Do not forget about Article 80 of the Labor Code of the Russian Federation. It allows you to quit without working out if the employee has good reasons . These include:

A full list of reasons can be found in the special rules of each individual company. Having decided on the reason, you will need to check if it is on the list. It can be quite extensive. For example, if a woman quit her job because her husband was transferred to work in another city, this is also a good reason.

As for the violation of the labor code or law by the employer, in this case, the employee will need to file a complaint with the court or labor authority . It must be drawn up according to all established rules. It doesn’t matter if the employee draws it up on his own or with the help of a lawyer. If the court establishes the fact of violation of the labor code or law, then the employee can ask for dismissal from the company without a two-week working off.

If the employee becomes aware that the employer has violated the employment contract or the law, then you should not immediately refuse to go to work after submitting the application. First, it must be confirmed by the court. Otherwise, absence from work within the prescribed 2 weeks of working out may well be regarded as absenteeism and have corresponding negative consequences for the employee. For example, an employee who refuses to perform his duties at an enterprise without a good reason may be fired already under the article, for absenteeism. Such dismissal can negatively affect the search for a new job.

Quit without work within three days

The labor code also provides for such conditions under which it is possible to quit a job within three days without a two-week working off. Their list includes:

An employment contract concluded for a period of less than two months. As well as downsizing or complete liquidation of the organization. To terminate the employment contract in this case, it will be enough for the initiator to write a letter of resignation three days before its date.
Dismissal at the initiative of one of the parties during the probationary period. Regardless of its duration. In this case, the initiator of the dismissal will also need to notify the other party three days in advance.
Dismissal of employees who took seasonal jobs. But in this case, the right to dismiss within a three-day period applies only to the employee himself. The initiator must notify the supervisor of his decision three calendar days in advance in writing. If the decision was made by the employer, then he will need to notify the employee of his decision in advance. The minimum term is a week.

There are some other reasons that will allow you to avoid a two-week working off before dismissal. For example, during this period, the employee can use the days remaining at his disposal. Upon a written application, the employee will be able to go on vacation for the prescribed period , followed by dismissal. But it is important to note that this is only the good will of the employer, and not his direct obligation. Therefore, he may not provide such an opportunity to an employee.

A similar option is also acceptable if at the time of working off the employee begins a period of incapacity for work . In this case, the dismissal will be confirmed in absentia on the day on which the application was submitted. In addition, the employer will have to pay him the entire period of disability.

In the event of dismissal, it is not always possible to finalize the required two weeks before dismissal. Dismissal without working off is allowed in cases specified by law, as well as upon agreement with the employer. Dismissal can take place on the same day when the application is submitted of one's own free will, as well as dismissal within three days by law. Consider the cases when you can quit your job, bypassing a two-week working off, which cases the legislation considers as valid.

The provisions of the labor legislation of 2019 on dismissal without working off

In accordance with the law, an employee who wants to quit, about which he writes a statement, must work for the notorious two weeks. This period was given for a reason, because the employer needs to make all the calculations with the employee, find a replacement for him. But, there are times when an employee is not required to work. This is a situation when an enterprise is liquidated, or when an employee is dismissed due to reduction. In this case, there is a procedure for dismissal. The employer must notify the employee 2 months in advance of the upcoming reduction.

Dismissal occurs on the same date as indicated in the resignation letter in such cases:

when an employee of retirement age leaves;
if the employee was enrolled in an educational institution;
if the employee moves to another place of residence, to another area;
if the spouse of the employee moves to work abroad, or to another place for service;
if the employer violated the terms of the employment contract or applicable law.

Labor legislation does not provide an exhaustive list of good reasons why you can not work out. It all depends on the situation that has developed at the enterprise, and the employer's interest in losing a valuable employee.

Letter of resignation without work

There is a misconception that you can quit without working off if you indicate in the reason for leaving that the employee is leaving due to the need to care for a child (up to 3 or up to 14 years). However, there is no direct reference in the law to the validity of such a reason. Therefore, you should not expect that the employer is simply obliged to meet the employee halfway and fire him on the same day. But, you can negotiate with the employer. Most often, such employees are allowed not to work.

If an employee who is about to retire retires, the enterprise must carry out the dismissal on the same date that the employee indicated. This is a requirement of the law, and not the wish of the employee (according to Article 80 of the Labor Code of the Russian Federation). Therefore, it is forbidden to demand working off from a pensioner.

In the case of enrollment in an educational institution , the employee has the right to demand from the employer dismissal without working off.

In the application, you must write the reason why the development is impossible. As proof of enrollment in an educational institution, the employer may require an appropriate certificate.

If the employee believes that the employer has violated the law or the terms of the contract, he must first file a complaint in the prescribed form with the labor authority or the court. And already when establishing the fact of a violation, which will be confirmed by the relevant document, you can already ask for dismissal without working off. You should not immediately not go to work after filing a letter of resignation, unless the employee became aware of a violation by the employer of the law or the employment contract. Absence from work within the prescribed two-week working off period can be regarded as absenteeism, with the corresponding consequences. An employee who does not go to work without a good reason is fired under the article for absenteeism.

Terms of working off upon dismissal under the Labor Code of the Russian Federation

An employee is supposed to work for two weeks if he submits an application for his resignation in the general manner. In some cases, the Labor Code of the Russian Federation establishes a three-day period:

if the employee is on probation at the enterprise;
if the term of the employment contract with the employee is concluded for a period of up to two months;
if the employee performs seasonal work.

When passing a probationary period , an employee may change his mind about getting a job at this enterprise, about which he must notify the employer three days in advance (in accordance with Article 71 of the Labor Code).

A temporary employee who got a job for up to two months, on the basis of Art. 292 of the Labor Code, has the right to quit before the end of the contract. But you need to warn the employer not two weeks in advance, but three days in advance. The same applies to an employee who is engaged in seasonal work.

When passing the test, it is important to understand that the terms of the test must be included in the employment contract. If these data are not entered, the employee is considered accepted for the position immediately, without a probationary period. Without a two-week working off under the Labor Code of the Russian Federation, you can quit if the probationary period is set to 3 months, and the employee has worked at the enterprise for less than these 3 months. But notice of departure should be three days in advance.