Why is Article 77 of the Labor Code of the Russian Federation needed?
Article 77 of the Labor Code of the Russian Federation, in fact, is a single list of the most common grounds for dismissal. The features of a particular basis are discussed in separate articles of the code.
A link to Article 77 of the Labor Code of the Russian Federation is usually indicated in the entry made in connection with the dismissal in the work book. An exception to this rule is the grounds specified in paragraph 4 and paragraph 10 of this article, which have a reference either to different articles of the Labor Code of the Russian Federation, or to those articles of this document that contain their own (detailed) lists of grounds. To correctly indicate the reason for dismissal, it must be selected from the appropriate detailed list, and then a link may appear in the work book:
- at the station 71 of the Labor Code of the Russian Federation (employer’s initiative based on the results of the probationary period);
- paragraphs of Art. 81 (employer's initiative), 83 (circumstances not related to the will of the parties) or 84 (violation of the rules for concluding an employment agreement) of the Labor Code of the Russian Federation.
In all other cases, the reason for dismissal can be clearly indicated by reference to one of the paragraphs of Art. 77 of the Labor Code of the Russian Federation with clarification of the wording of the basis, if the paragraph of this article lists several options (for example, dismissal due to transfer can be caused by both a change of employer and a transition to work in an elective position).
For more information about dismissal caused by the employer’s initiative, read the article “Procedure for dismissal of an employee on the employer’s initiative” :
Article 77 of the Code of Criminal Procedure of the Russian Federation. Testimony of the accused (current version)
1. Testimony of the accused is information about the circumstances included in the scope of the accusation, as well as other circumstances, evidence and sources of evidence, reported during interrogation by the person brought to criminal liability. The testimony of the accused is not only a means of proving the circumstances of a criminal case, but also a means of protecting the accused from the charges brought against him. Therefore, along with testimony (information about specific circumstances), the accused also has the right to give explanations, which may contain versions and assumptions put forward by him in his defense. These explanations are not considered evidence, because they are not information about the circumstances, but inferences, however, unlike such explanations of witnesses and victims, the explanations of the accused are of direct importance for the process of proof, since they give rise to the legal obligation of the investigator, interrogating officer, prosecutor, court to verify all allegations made by the accused versions and assumptions that may have at least some reasonable basis. In any case, the explanations of the accused must be refuted or confirmed by evidence collected in the criminal case. Explanations should be distinguished from probabilistic information, which is actually evidence about the circumstances of the case, for example, a judgment about the approximate speed of a vehicle, the age of an accomplice in a crime, a victim, etc. See paragraph 3 of the comment about this. to Art. 75 of this Code.
2. The testimony of the accused must be distinguished from information provided by this person not during interrogation, but within the framework of other procedural forms: in a statement of confession; in admitting (or not admitting) one’s guilt when answering the investigator’s question preceding the first interrogation after the presentation of charges (Part 2 of Article 173), or to the question of the presiding officer after the charges against the defendant were presented in court (Part 2 of Article 273); in petitions, complaints; in a speech during the debate between the parties (in the absence of a defense lawyer) or in the last word of the defendant. These messages cannot replace testimony, therefore, he must be questioned about the circumstances reported by the accused in the specified forms.
3. Giving evidence is the right, and not the obligation, of the accused, and therefore the law does not provide for his responsibility for refusing to testify, and, unlike a witness, the accused has the right to refuse to testify on any issues, and not just against himself, his spouse or close relatives. Moreover, refusal to testify is the right of the accused (clause 3, part 4, article 47). According to Russian law, the accused is not liable for knowingly giving false testimony. This is explained by the fact that the threat of such liability can, in critical situations, push an innocent person to self-incriminate himself: for example, in the presence of outwardly convincing, although not true, evidence of guilt in the charged crime, which makes the accused fear his conviction not only for this crime, but also for giving deliberately false testimony.
The Criminal Code of the Russian Federation does not provide for such an aggravating circumstance of the accused as slander of a obviously innocent person. Therefore, the accused is not liable for giving evidence containing a knowingly false report about the commission of a crime by another specific person. The Criminal Code establishes criminal liability for knowingly false denunciation (Article 306) and slander associated, in particular, with accusing another person of committing a serious crime (Part 3 of Article 129). If such denunciation or slander is contained in the testimony of the accused, then, in our opinion, he cannot be held criminally liable for these acts, since he is not liable for knowingly giving false testimony. The issue should be resolved differently when a deliberately false denunciation or slander comes from the accused in other forms (an application to initiate a criminal case, sending letters, oral communication outside the framework of interrogation, etc.).
4. The testimony of the accused may be confessional or exculpatory. There is a distinction between full recognition, i.e. confirmation by the accused of the entire scope of the charges brought, and a partial confession. With a partial confession, the accused may, for example, deny his participation in certain episodes of criminal activity, his particularly active role in the commission of the crime, its intentional nature, object to the correctness of the classification of his actions given in the charge, etc. If the accused admits the objective side of his actions, but denies their guilty (intentional or careless) nature, or for other reasons does not agree with the assessment of these actions as criminally unlawful, his testimony cannot be considered as confessional.
5. The criminal procedure law treats the confession of the accused as any other evidence, requiring its confirmation by a totality of other evidence collected in this criminal case (Part 2 of the commentary article). In this case, only such a body of evidence can be sufficient, which also contains evidence whose primary source is not the confession of the accused, but other sources of information independent of the testimony of the accused.
Comment source:
Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition
SMIRNOV A.V., KALINOVSKY K.B., 2009
Changes to Article 77 of the Labor Code of the Russian Federation
From 04/02/2014 (RF Law of 04/02/2014 No. 55-FZ “On Amendments...”) in Art. 77 of the Labor Code of the Russian Federation, changes were made that affected the text of paragraph 6. They consisted of adding to the grounds specified in this paragraph (the employee’s reluctance to continue working when there is a change of owner, a change in the subordination of the employer or its reorganization), one more: a change in the type of state or municipal institution .
At the same time, the text of Art. was clarified (also by adding a reference to a change in the type of state or municipal institution). 75 of the Labor Code of the Russian Federation, indicating that the employer does not have the right to initiate termination of the contract with employees when the employer’s subordination changes or during its reorganization. Dismissal in such a situation can only occur if there is a refusal by the employee to continue working in the changed circumstances.
Judicial practice under Article 77 of the Tax Code of the Russian Federation
Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 26, 2019 N 48
In cases where a person commits a large or especially large amount of concealment of funds or property, at the expense of which, in the manner prescribed by the legislation on taxes and fees, tax arrears must be collected , fees, insurance premiums, and the subject of concealment are funds or property in respect of which methods have been applied to ensure the fulfillment of the obligation to pay taxes, fees, insurance contributions in the form of suspension of transactions on accounts (Article of the Tax Code of the Russian Federation) and (or) seizure of property (Article Tax Code of the Russian Federation), the act is fully covered by the elements of the crime provided for in Article 199.2 of the Criminal Code of the Russian Federation. At the same time, intentional actions of an employee of a credit institution who carried out banking operations with funds (deposits) in accounts that have been seized, if there are grounds for this, are qualified under Part 1 of Article 312 of the Criminal Code of the Russian Federation.
What is remarkable about dismissal by agreement of the parties (clause 1 of Article 77 of the Labor Code of the Russian Federation)?
Paragraph 1 of Article 77 of the Labor Code of the Russian Federation refers to Art. 78 of the Labor Code of the Russian Federation, which adds only one detail to the specified grounds for dismissal: by agreement of the parties, the contract can be terminated at any time.
Meanwhile, such a dismissal has a number of other points that distinguish it from a dismissal caused by the employee’s initiative:
- It presupposes the existence of mutual consent of the parties (and any of them can become the initiator), while the dismissal of an employee on his own initiative can only occur by his will, regardless of the consent or disagreement of the employer.
- The agreement of the parties to terminate the contract does not have a set form and can be drawn up either as a bilateral document or as an application from the employee with a corresponding request.
- The agreement may provide for the payment of monetary compensation associated with such dismissal. Moreover, this will be a completely independent type of payment. The employee will be entitled to severance pay only when it is expressly provided for in internal regulations or in the text of the employment contract in the event of dismissal for such a reason.
- An employee will no longer be able to change his mind about resigning unilaterally. To renew labor relations, a mutual agreement on this will also be required (clause 20 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).
Read about the specifics of taxation of payments upon termination of a contract in the material “Tax consequences of dismissal payments” .
Commentary to Art. 77 Tax Code of the Russian Federation
Seizure of property - an inventory of property and a ban on its disposal.
1. Paragraph 1 of the commented article of the Tax Code defines the seizure of property - another way to ensure the payment of taxes and fees:
a) seizure of property is an action of a tax or customs (in relation to taxes and fees payable in connection with the movement of goods across the customs border of the Russian Federation) authority, which:
- carried out with the sanction of the prosecutor. The latter circumstance ensures the legality and validity of the seizure, the protection of the interests of the property owner from unlawful restrictions on his rights, as well as the adoption of timely and comprehensive measures to prevent or eliminate facts of unlawful actions of tax and customs authorities and eliminate their consequences;
- aimed at limiting the property rights of the taxpayer, fee payer, tax agent, which are organizations (hereinafter referred to as tax payers). Such a restriction may include:
1) to exercise the right to own and use property;
2) only to the exercise of the right to dispose of property;
3) to all three powers of the owner - possession, use, disposal of property;
b) seizure of property is an independent way of ensuring the payment of taxes. It is necessary to very clearly understand and understand the differences between the seizure of property and a pledge, and from a guarantee (the latter are used when changing the deadlines for paying taxes), and from the suspension of transactions on the bank accounts of taxpayers and fees (this method only ensures the forced collection of taxes and fees).
In what cases, or rather, what conditions are necessary for the legal and justified use of seizure of property?
It is produced under the following conditions:
1) failure by the payer to fulfill his tax obligations within the time limits established by law or amended in accordance with Articles 61 - 67 of the Tax Code of the Russian Federation;
2) when the tax (customs) authority has sufficient grounds to believe that the tax payer will take any action to escape. In this case, we are talking about any actions of the payer that give reason to believe this, for example, purchasing a travel ticket to travel to another city, obtaining a foreign passport, applying for the acquisition of citizenship of another country or the right to permanent residence in this country, systematic evasion of appearing in tax (customs) authorities, etc.;
3) when there are sufficient grounds to assume that the taxpayer is taking actions to conceal his property. For example, he placed an advertisement for an urgent sale of property, transported it to another warehouse, the location of which was unknown to the tax (customs) authority, and re-registered the property to dummies. At the same time, the property mentioned in Article 77 of the Tax Code of the Russian Federation must be understood as things, securities, vehicles, real estate, other property (we talked about this in detail with you in the commentary to Article 47 of the Tax Code of the Russian Federation), owned by the payer by right of ownership or other property rights;
c) seizure of property is also used as a way to ensure the execution of a decision to collect taxes (Article 47 of the Tax Code of the Russian Federation). In other words, the seizure of property ensures the execution of:
and obligations to pay taxes when deadlines change (as a pledge and surety, Articles 73, 74 of the Tax Code of the Russian Federation);
and such an obligation in case of violation of the deadlines established by the legislation on taxes and fees (as a fine, Article 75 of the Tax Code of the Russian Federation);
and decisions on collection (such as suspension of transactions on bank accounts of tax payers, Article 76 of the Tax Code of the Russian Federation).
2. In paragraph 2 of the commented article, the legislator classifies the types of seizure of property.
So, there are two types of seizure of property:
a) complete seizure of property is such a restriction of the rights of the payer of taxes and fees in which he:
- has absolutely no right to dispose of the seized property. That is, this right of the owner is paralyzed: the latter does not have the right to sell the property, donate it, lease it, transfer it as a contribution to a commercial organization or a simple partnership, or make any other transaction aimed at alienating this property;
- may exercise the powers of ownership or use of seized property (for example, travel in your car, use machine tools in the production process, etc.), but only with the written permission of the tax (customs) authority and under its control;
b) partial seizure of property is such a restriction of the rights of the tax payer in which, with the permission and under the control of the tax (customs) authority, all three powers of the owner are exercised.
A tax payer, for example, may receive the right to sell certain types, lots, or parts of property in order to pay taxes on the proceeds.
3. Paragraph 3 of Article 77 of the commented Code is of a referential nature:
a) allows the use of property seizure to ensure the collection of taxes only at the expense of the property (Article 47 of the Tax Code of the Russian Federation) of the tax payer, but not at the expense of funds in bank accounts;
b) establishes the procedure for foreclosure on seized property, referring us to Art. 47 of the Tax Code of the Russian Federation (clause 5 of Article 47 of the Code indicates the sequence of foreclosure on certain types of property).
4. In paragraph 4 of the commented article of the Tax Code of the Russian Federation, the legislator establishes that arrest can be:
a) imposed on all property of the taxpayer. What did the legislator mean by the term “all property of the payer of taxes and fees”? We will try to answer this question in detail. Seizure can be applied to the following types of property of an organization that pays taxes and fees:
— property not directly involved in the production of goods, performance of work, provision of services (including vehicles, real estate, securities, etc.);
— finished products (goods);
— raw materials, materials, semi-finished products, as well as fixed assets of the organization (machines, buildings, structures, equipment, etc.);
- other property. In this case, it is necessary to take into account, firstly, the rules of paragraph 5 of Article 47 of the Tax Code of the Russian Federation (on the sequence of application of arrest in relation to one or another type of property). Secondly, the rules of paragraph 5 of Article 77 of the Tax Code of the Russian Federation (that only property that is necessary and sufficient to fulfill the obligation to pay taxes and fees is subject to arrest). Thirdly, the rules of paragraph 1 of Article 103 of the Tax Code of the Russian Federation (on the inadmissibility of unlawful harm to a tax-paying organization);
b) the phrase “all property” does not refer to money in a bank account;
c) arrest cannot be applied to the property of an individual taxpayer.
5. In paragraph 5 of the commented article, the legislator defined the following rules:
a) the tax (customs) authority cannot determine the limits and quantity for which property may be seized;
b) only that part of the property (its volume, its quantity) that:
necessary to pay taxes (based on its market value, demand for this property in a given region, consumer properties, degree of wear, etc.);
enough to pay taxes. In other words, let’s say: you cannot seize an excessive amount of property (otherwise, a situation arises that is described in Article 103 of the Tax Code of the Russian Federation as causing unlawful damage to the payer of taxes and fees).
The rules of paragraph 5 of Article 77 of the Tax Code of the Russian Federation must be observed both in case of full and partial seizure of property.
6. Paragraph 6 of the commented article establishes the following imperative rules, namely, the decision to seize property is made:
a) the head (his deputy) of the tax (customs) authority;
b) in the form of an appropriate resolution. Order of the Ministry of Taxes and Taxes of July 31, 2002 No. BG-3-29/404 approved the current form of a resolution to seize the property of a taxpayer (fee payer) or tax agent.
The absence of a properly executed resolution provides grounds for appealing against the seizure of property and recognizing it as unlawful (by a court or a higher tax (customs) authority).
7. Paragraph 7 of the commented article establishes important procedural rules for the seizure of property:
a) firstly, we are talking about the seizure of property only of organizations - payers of taxes and fees, organizations - tax agents, but not about the seizure of property of their representatives;
b) witnesses (whose participation is mandatory when seizing property) are any individuals who are not interested in the outcome of the case (Article 98 of the Tax Code of the Russian Federation);
c) the tax (customs) authority seizing property does not have the right to refuse the tax payer (or his representatives) to be present when the property is seized. The presence of the payer (his representative) must be reflected in the protocol on the seizure of property (Article 99 of the Tax Code of the Russian Federation);
d) specialists (listed in paragraph 2 of paragraph 7 of Article 77 of the Tax Code of the Russian Federation) are persons with special knowledge and skills who are not interested in the outcome of the case. The involvement of a specialist is carried out on a contractual basis (Article 96 of the Tax Code of the Russian Federation);
e) the body seizing property is obliged to explain to witnesses and specialists their rights provided for in Articles 96, 98, 131 of the Tax Code of the Russian Federation, as well as the duties and responsibilities assigned to them (Articles 128, 129 of the Tax Code of the Russian Federation);
f) the taxpayer participating in the seizure of property (as well as his representatives, tax agent, payer of fees), the tax (customs) authority is obliged to explain their rights and obligations provided for in Art. Art. 21 - 24, 26 - 29 of the Tax Code of the Russian Federation, as well as the penalties provided for in Art. Art. 124, 125, 129.1 Tax Code of the Russian Federation.
8. The norms of paragraph 8 of the commented article of the Code also contain procedural rules, such as:
a) they prohibit (as a general rule) the seizure of property at night. Night time is considered to be from 10 pm to 6 am (meaning local time);
b) only in urgent cases (if the taxpayer takes measures to conceal property), it is allowed to seize property from 10 p.m. to 6 p.m.
9. The rules of paragraph 9 of Article 77 of the Code require officials who are entrusted by the management of the tax (customs) authority with seizing property to present to the taxpayer (his representative):
a) decision of the head (his deputy) of the tax (customs) authority to seize property;
b) the prosecutor's sanction to seize property, issued in accordance with the procedure established by law, signed and sealed;
c) documents proving their identity and authority (indicating rank, position, place of work and other details);
d) before proceeding with the seizure of property. In other words, the process of seizing property must begin with the presentation of the mentioned documents.
10. Paragraph 10 of the commented article of the Code establishes mandatory procedural norms - drawing up a protocol on the seizure of property and what must be indicated in this protocol, namely:
a) name of the document;
b) place and date of seizure of property;
c) the time of the beginning and end of the seizure of property;
d) position, surname, name, patronymic of the person who compiled the protocol;
e) last name, first name, patronymic of each person participating in the seizure of property;
f) description of the seizure of property and the sequence of its implementation;
g) other information specified in Art. 99 Tax Code of the Russian Federation.
In the protocol of seizure of property (or in the inventory attached to the protocol):
the property subject to seizure is listed (item by item);
the mentioned property is described (indicating the exact name, for example: a Lada passenger car, VAZ-2110, body number, chassis, engine number, etc.; the quantity of seized property, for example: 10 tons of AI-95 gasoline; individual characteristics of the items , which have been seized, for example: a five-story brick building, its total area, located on the left bank of the Volga River, at the address: Pobeda Street, building 11);
If possible, the value of the property to be seized is indicated. The current form of the protocol for the seizure of property was approved by Order of the Ministry of Taxes of Russia of July 21, 2002 No. BG-3-94/404.
Paragraph 2 of paragraph 10 of the commented article contains another important rule: officials seizing property are required to present to the payer of taxes and fees (his representative), as well as to witnesses, all items subject to seizure.
11. In accordance with paragraph 11 of the commented article of this Code, the head of the tax (customs) authority (who made the decision to seize property) is obliged to:
determine the place where the property that is seized should be located (i.e. indicate, for example, a warehouse, terminal, premises, address of an open parking lot, other storage facility, etc.);
determine such a place either in advance (if it is known what kind of property will be seized) or immediately after the seizure.
12. Paragraph 12 of the commented article establishes the following rules, but before we talk about them, it is necessary to clarify some concepts used by the legislator in the commented article:
1) alienation is, for example, the sale, exchange of property, transferring it as a gift, making a contribution to the authorized capital of a commercial organization, making other transactions in which the ownership of property is transferred to another person;
2) embezzlement of seized property is not only its alienation in favor of third parties, but also its consumption, use, partial damage, loss due to dishonest storage;
3) concealment of seized property is the adoption of measures that make it difficult or impossible to discover the real location of the property.
Let's return to the commentary of paragraph 12 of this article of the Code:
a) alienation of property is prohibited:
without permission from the tax (customs) authority; without proper control by the tax (customs) authority;
b) paragraph 12 of the commented article of this Code does not mean any tax (customs) authority, but specifically the one that made the decision to seize property, therefore the sanction of a higher tax (customs) authority is not a sufficient basis for the alienation of seized property;
c) for failure to comply with the established procedure for the possession, use, and disposal of seized property, the guilty persons (including payers of taxes and fees, officials of tax and customs authorities) may be subject to liability measures provided for:
— in Article 125 of the Tax Code of the Russian Federation;
- in other federal laws (for example, Article 312 of the Criminal Code of the Russian Federation “Illegal actions in relation to property subject to inventory or seizure or subject to confiscation”).
13. Paragraph 13 of the commented article establishes a number of important rules:
a) that the decision to seize property is canceled by an authorized official of the tax (customs) authority. This person can only be the head (or his deputy) of the tax (or customs) authority, since it is he who makes the decision to seize property (see paragraph 6 of Article 77 of the Tax Code of the Russian Federation);
b) the said decision is canceled if the obligation to pay taxes or fees has ceased:
- due to their payment;
- for other reasons (for example, due to the fact that taxes were canceled in the manner prescribed by the Tax Code of the Russian Federation);
c) the decision to seize property can also be canceled by any higher tax (customs) authority (up to the Ministry of Taxation of Russia and the State Customs Committee of Russia);
d) the said decision to seize property is valid:
- from the moment of seizure (i.e. drawing up and signing in the prescribed manner a protocol on seizure). In this case, the countdown begins precisely from the day when the arrest was imposed;
- until the decision is canceled in the prescribed manner by the body that imposed the seizure, by a higher authority (to which, for example, the payer of taxes and fees filed a complaint) or by the court (if the payer of taxes and fees appealed the seizure of property in court).
14. The rules of paragraph 14 of Article 77 of the commented Code extend the effect of subparagraphs 1 - 13 of Article 77 of this Code to the seizure of the property of a tax agent and payer of fees.
However, these rules apply to representatives of payers of taxes and fees, as well as persons mentioned in Art. 51 of the Tax Code of the Russian Federation, there are no grounds.
15. Tax authorities (when seizing property) in their practice are guided by the Methodological Recommendations on the procedure for seizing a taxpayer’s property to ensure the obligation to pay tax.
What should you remember when dismissing at the end of the contract (clause 2 of article 77 of the Labor Code of the Russian Federation)?
- An agreement concluded for a period must satisfy a number of requirements, if not met, it can be reclassified as unlimited (Article 58 of the Labor Code of the Russian Federation).
- It is issued only in a number of specific cases specified in the Labor Code of the Russian Federation (Article 59), and this reason is given in its text (Article 57 of the Labor Code of the Russian Federation).
- Its validity period is no more than 5 years, and it is fixed in the text (Article 58 of the Labor Code of the Russian Federation).
A contract that satisfies the above requirements ends:
- Within the period specified in its text (clause 2 of Article 77 of the Labor Code of the Russian Federation), and the employee must be notified about this in writing at least 3 calendar days in advance (Article 79 of the Labor Code of the Russian Federation), if the contract was not drawn up in connection with the replacement of an absent employee.
- When an event occurs to which the period specified in the contract is attached (Article 79 of the Labor Code of the Russian Federation): when the replaced employee returns to work, the end of the season or the performance of the agreed work.
If a person continues to work after the expiration of the fixed-term contract, the contract will be considered unlimited (Article 58 of the Labor Code of the Russian Federation).
Special situations may arise in relation to a contract concluded with a pregnant woman, the validity of which ends during pregnancy (Article 261 of the Labor Code of the Russian Federation):
- At the request of the woman, it is extended until the end of this period.
- If continuation of work during which pregnancy occurred is impossible due to this condition, and the employer does not have other suitable work or the woman does not agree to it, then the contract will be terminated during pregnancy.
Other reasons for termination of a fixed-term contract may also include any other grounds given in Art. 77 of the Labor Code of the Russian Federation.
Article 77. General grounds for termination of an employment contract
Ruling of the Supreme Court of the Russian Federation dated November 14, 2007 N 83-G07-7 Otherwise, the employer, after receiving a medical report on existing contraindications to performing the assigned work, will be forced to terminate the employment contract in accordance with clause 11, part 1, art. Labor Code of the Russian Federation for violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (paragraph 3 of Article 84 of this Code), or transferring the employee to another job available to the employer that is not contraindicated to the employee due to his condition health (Part 1 of Article of the Labor Code of the Russian Federation).
Review of judicial practice, Appendix to the letter of the FSS of the Russian Federation dated July 11, 2005 N 02-18/07-6203
As follows from the case materials, Bulava A.A. from 07/01/1999 he worked as a leading specialist in branch No. 1 of the Fund’s branch. 07/22/2004 Bulava A.A. warned the employer in writing about the termination of the employment contract from 08/05/2004 at his own request. On 08/03/2004, the plaintiff, as a change and in addition to the application dated 07/22/2004, submitted to the employer a statement that he asked to consider 08/12/2004 as the last working day, indicating that 08/12/2004 was the last day of the vacation due to him. By order of the Fund branch manager N 325-K dated 08/02/2004 Bulava A.A. dismissed on 08/05/2004 under paragraph 3 of article of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code) at his own request. The plaintiff was familiarized with the dismissal order on August 5, 2004.
Determination of the Supreme Court of the Russian Federation dated 06.06.2007 N 83-G07-2
Deputy of the Bryansk Regional Duma P. appealed to the Bryansk Regional Court with an application to invalidate this provision from the moment of adoption, citing its contradiction with part 1 and part 9 of the article, part 1 and part 4 of the article, part 2 of the article, paragraph 14 of the article of the Russian Labor Code Federation.
Determination of the Supreme Court of the Russian Federation dated April 18, 2003 N 3-G03-5
The guarantees specified in Art. 24 of the contested Law are generally consistent with the principles of joint rule-making of the Russian Federation and the constituent entities of the Russian Federation, allowing the constituent entities of the Russian Federation to adopt, on subjects of joint jurisdiction, their own normative legal acts on issues, including those not regulated in the relevant federal laws, and the provisions of Art. . Art. 5, 18 of the Federal Law “On the General Principles of the Organization of Local Self-Government in the Russian Federation” dated August 28, 1995 N 154-FZ with subsequent amendments and additions, Art. Art. , , 164, 165, 172 of the Labor Code of the Russian Federation, providing for the creation of necessary conditions for deputies of representative bodies of local self-government for the unhindered and effective exercise of powers by establishing for them a special status by the Constitution of the Russian Federation, federal law, and laws of the constituent entities of the Russian Federation, which includes additional labor guarantees that protect deputies from illegal dismissal from work and unjustified changes in their essential working conditions. Since there is no federal law on the status of deputies of representative bodies of local self-government in the Russian Federation, taking into account the above circumstances, the Komi Republic justifiably adopted its own regulatory legal act containing rules on the status of deputies of councils of municipal formations of the Komi Republic, which provide for a higher labor standard than the current labor legislation level of protection of the labor rights of these deputies. At the same time, established in Art. 24 of the Law of the Komi Republic “On Local Self-Government in the Komi Republic”, measures to protect the labor rights of deputies of representative bodies of local self-government do not in themselves contradict the basic principles of labor legislation, since do not exclude the employer’s right to apply the provisions of Art. Art. , , Labor Code of the Russian Federation, with the consent of the relevant representative body of local self-government, and from the point of view of the right of citizens to exercise local self-government through their elected bodies, are proportionate and justified.
Determination of the Supreme Court of the Russian Federation dated March 27, 2003 N 46-G03-5
The prosecutor of the Samara region filed a petition with the court to declare that clause 1 of Art. 24 of the Law of the Samara Region dated July 16, 1998 N 16-GD “On Municipal Service in the Samara Region”, adopted by the Samara Provincial Duma on June 25, 1998, in the part defining the basis for termination of municipal service as the expiration of the contract, referring to the fact that in this Part of this norm contradicts Part 4 of Art. Labor Code of the Russian Federation, which provides that if neither party has requested termination of a fixed-term employment contract due to the expiration of its term, and the employee continues to work after the expiration of the employment contract, the employment contract is considered concluded for an indefinite period and clause 2 Art. The Labor Code of the Russian Federation, which provides that the basis for termination of an employment contract is the expiration of the term of the employment contract (clause 2 of Article 58), except in cases where the employment relationship actually continues and neither party has demanded its termination.
Review of judicial practice of the Supreme Court of the Russian Federation dated May 28, 2008
Clause 11 of Part 1 of Art. Labor Code of the Russian Federation, is not deprived of the right to receive severance pay under the conditions provided for in the employment agreement. When resolving the dispute, the court found that, on the basis of an order dated May 5, 2003, plaintiff S. was appointed chief accountant of the organization, and on June 10, 2003, an employment contract was concluded with her in writing, in accordance with section seven of which, in case of forced termination of work through no fault of the employee, as well as in case of early termination of an employment contract on the initiative of the administration, during reorganization or liquidation of the enterprise, compensation in the amount of at least two annual actual wages (for the past period) is paid at the expense of the enterprise.
Determination of the Supreme Court of the Russian Federation dated May 14, 2008 N 63-G08-1
The article of the Labor Code of the Russian Federation determines that an employment contract may be terminated on the grounds provided for by this Code and other federal laws. Federal legislation does not provide for grounds for termination of a service contract (employment contract), established by the contested norm, as the court correctly indicated in its decision.
Determination of the Constitutional Court of the Russian Federation dated January 29, 2009 N 24-О-О
In his complaint to the Constitutional Court of the Russian Federation, T.V. Ivanova challenges the constitutionality of parts five and six of Articles of the Labor Code of the Russian Federation, according to which a change in the jurisdiction (subordination) of an organization or its reorganization cannot be grounds for termination of employment contracts with employees of the organization, and if the employee refuses to continue working in these cases, the employment contract is terminated in in accordance with paragraph 6 of article of the Labor Code of the Russian Federation. According to the applicant, these legal provisions violate the principle of freedom of labor, deprive the employee of established guarantees and compensations and contradict Articles 2, 7, 15 (parts 1, 2 and 3), 17 (parts 1 and 3), 18, 19, 21 (part 1 ), 24 (part 2), 29 (part 4), 37 (parts 1, 2, 3 and 4), 45, 46 (parts 1 and 2), 52, 55 and 57 of the Constitution of the Russian Federation.
“Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2010”
D. filed a lawsuit against the Oyna Mining Artel for the collection of arrears of wages, compensation for unused vacation upon dismissal, compensation for delayed payment of wages and compensation for unused vacations. In support of her claims, the plaintiff indicated that she worked in the artel from October 13, 1997 to March 27, 2009. During this period, she was not provided with paid leave. On December 19, 2008, she contacted her employer with an application for paid leave for 2007-2008 with subsequent dismissal. By order of the head of the organization dated December 19, 2008, D. was dismissed on March 27, 2009 at her own request on the basis of clause 3 of Art. Labor Code of the Russian Federation. According to the plaintiff, upon her dismissal, the defendant incorrectly made the final payment and did not pay money for unused vacations in the period from 1997 to 2007.
Determination of the Supreme Court of the Russian Federation dated January 21, 2011 N 2-B10-6
The prosecutor of the city of Vologda, acting in the interests of Timofeeva E.A., went to court with the specified claims, citing the fact that the prosecutor's office of the city of Vologda carried out an inspection at the request of Timofeeva E.A. due to illegal dismissal. During the inspection, it was established that on March 31, 2008, between the State Educational Institution of Higher Professional Education "... State Law Academy ..." (hereinafter referred to as the State Educational Institution of Higher Professional Education ... State Law Academy ...) and Timofeeva E.A. an employment contract was concluded for the period from August 31, 2008 to August 31, 2009, according to which Timofeeva E.A. Based on the results of a competitive selection, she was accepted to the position of teacher at the department of State Educational Institution of Higher Professional Education ... State Law Academy ... (branch ... State Law Academy). By order of August 27, 2009 Timofeeva E.A. dismissed on August 31, 2009 under clause 2, part 1, art. Labor Code of the Russian Federation in connection with the expiration of the employment contract. Meanwhile, on the basis of the certificate of incapacity for work, Timofeeva E.A. Maternity leave was granted for the period from July 3, 2009 to November 19, 2009, and she was dismissed while on maternity leave. Considering the dismissal illegal, the prosecutor of the city of Vologda asked to oblige the State Educational Institution of Higher Professional Education ... State Law Administration ... to reinstate Timofeeva E.A. at work in the previously held position - teacher of the department ... State Educational Institution of Higher Professional Education ... State Law Academy ... since September 1, 2009.
Determination of the Constitutional Court of the Russian Federation dated July 15, 2010 N 1002-О-О
Termination of an employment contract due to the expiration of its validity period (clause 2 of part one of article of the Labor Code of the Russian Federation) corresponds to the general legal principle of stability of the contract; the employee, giving consent to the conclusion of an employment contract in the cases provided for by law for a certain period, knows about its termination after the expiration of a pre-agreed period, including in connection with the return to work of the employee, who, in accordance with the current legislation, retains his place of work (position) .
What are the rules for dismissal at the initiative of an employee (clause 3 of Article 77 of the Labor Code of the Russian Federation)?
Regarding the rules for dismissing an employee on his own initiative, clause 3 of Art. 77 of the Labor Code of the Russian Federation refers to Art. 80 Labor Code of the Russian Federation:
- 2 weeks before the date of dismissal, the employee submits a statement of his intention. The 2-week period begins on the day following the day of filing and ends on the day of dismissal.
- During the 2-week work period, the employee can change his mind and either withdraw his application, or (if the contract with him is not terminated) continue working after the last day of the notice period for dismissal. This rule becomes ineffective when an employee who cannot be denied (Article 64 of the Labor Code of the Russian Federation) employment (a pregnant woman or an employee arriving on transfer) has already been invited in writing to replace the person who submitted the application.
- A person who has not changed his mind about quitting has the right to stop working from the day following the last day of the notice period of his intention. His last working day is the day of his dismissal. On this day, the employer must pay him all the money due for the time of work that has not been paid by this day (salary and compensation for untaken vacation), and issue all the necessary documents (work book, salary certificate for sick leave).
The 2-week period can be changed in the following cases:
- by agreement of the parties;
- if it is impossible to continue the work;
- if the reason for dismissal was the employer’s violation of labor laws;
- when the Labor Code of the Russian Federation establishes a different period:
- Art. 71 (test) - 3 calendar days;
- Art. 280 (for a manager) - 1 month;
- Art. 292 (short fixed-term employment contract) - 3 calendar days;
- Art. 296 (for a seasonal worker) - 3 calendar days;
- Art. 307 (for an employee of an individual employer) - according to the terms included in the employment contract;
- Art. 348.12 (for an athlete or coach) - 1 month.
About the rules for drawing up a resignation letter on your own initiative, read the article “How to write a resignation letter correctly - sample?” .
How to fire an employee due to a transfer (clause 5 of Article 77 of the Labor Code of the Russian Federation)?
Dismissal due to transfer differs from dismissal on one’s own initiative in just a few things:
- Availability of a written invitation from another employer indicating the start date of future work and the position of the invitee or an act of election to an elective position that involves release from the main job.
- Indication of the appropriate reason in the text of the employee’s application.
- Sending by the employer, in response to the invitation, a letter confirming consent to the transfer.
- It is impossible for an employee to withdraw a statement containing such a reason, since it is essentially identical to that reached as a result of an agreement between the parties.
- The text of the entry in the work book. In this case, the reason for the transfer (to a new employer or to an elective position) will require a link to it in the text of the entry.
- Impossibility for a new employer to refuse employment within 1 month after dismissal (Article 64 of the Labor Code of the Russian Federation).
- It is impossible to establish a probationary period for a transferred employee in a new place (Article 70 of the Labor Code of the Russian Federation).
What distinguishes dismissal when the terms of the employment contract change (clause 7, article 77 of the Labor Code of the Russian Federation)?
Such dismissal occurs when the employer intends to change some of the basic terms of the employment agreement, and the employee is not satisfied with this. In this procedure, the sequence of actions and adherence to established deadlines are important:
- Notification of changes must be made in writing and in advance:
- for 2 months by an employer-legal entity that is not a religious organization (Article 74 of the Labor Code of the Russian Federation);
- 14 days in advance by an individual entrepreneur or an individual employer (Article 306 of the Labor Code of the Russian Federation);
- 7 days in advance by the employer - a religious organization (Article 344 of the Labor Code of the Russian Federation).
Does not require approval from the employee:
- moving it between workplaces, if this does not affect the mandatory terms of the contract (Article 72.1 of the Labor Code of the Russian Federation);
- temporary transfer to another job for a period of no more than a month, if this is caused by an emergency situation (Article 72.2 of the Labor Code of the Russian Federation).
How to fire an employee who needs to be transferred to another job for medical reasons (under clause 8, part 1, article 77 of the Labor Code of the Russian Federation)? The answer to this question is in ConsultantPlus. If you do not have access to the K+ system, get a trial online access for free.
What is meant by other grounds for dismissal?
Other grounds for dismissal not specified in Art. 77 of the Labor Code of the Russian Federation, apply to employees of certain categories or industries. Their list is not limited by law; there is only a requirement that it be established by law at the federal level. The Labor Code of the Russian Federation, in particular, provides for them:
- for the head of a legal entity (Article 278);
- part-time worker (Article 288);
- employee of an individual employer (Article 307);
- homeworker (Article 312);
- foreigner (Article 327.6);
- teaching worker (Article 336);
- head (deputy head) of a state or municipal scientific organization (Article 336.3);
- employee of a foreign mission (Article 341);
- employee of a religious organization (Article 347);
- employee of the employer-notary (Article 351.4).
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
