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 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 and other documents related to the work, upon the employee’s written application, and make a final payment to him.
If, upon expiration of the notice period for dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues.
The essence and procedure of dismissal at the initiative of an employee
It is necessary to describe the reasons in detail if the employee believes that the employer has created inappropriate conditions for the implementation of labor relations. This may be expressed in unlawful calls to work outside of working hours, refusal to issue special clothing, or other violations of the law.
The motivation for detailing the reasons for dismissal may be a move to another city or the occurrence of any important event that is incompatible with the continuation of the employment relationship. For example, an employee entered full-time full-time education at an educational institution.
In all these cases, you can submit an application for dismissal with a request to dismiss on the day it is transferred to the personnel department, which must be specifically indicated in the application.
Otherwise, if the resignation letter contains a standard brief wording, then you will have to come to the place of work within two weeks from the date of filing the resignation letter. However, this should not be considered a workout. The legislation does not provide for such a process at all.
An employee can write a letter of resignation and then go on sick leave or apply while on vacation. The Labor Code of the Russian Federation says that an application must be submitted no later than two weeks, but this does not mean that the employee who wrote the resignation letter becomes some kind of temporarily obligated person.
There are two exceptions. If the employee has undergone a test period, then he must notify the employer of his desire to resign no later than three days before the actual payment date, and managers transfer the matter within a month from the date of writing the application. In addition, the procedure itself is significantly different.
In his application, the employee may not indicate any articles of the codes. Having received it, the employer can take steps to retain the employee. For example, offer him a higher salary or some additional preferences. If there is no motivation to retain or it is impossible to persuade the employee to do so, the employer issues a dismissal order. It is drawn up on the basis of the unified form No. T-8, which was approved by the State Statistics Committee on January 5, 2004.
A reference to the article of the Labor Code of the Russian Federation is made in it, but most often it is clause 3, part 1, art. 77 of the Labor Code of the Russian Federation, and not Art. 80 Labor Code of the Russian Federation. The point is that Art. 77 of the Labor Code of the Russian Federation is normative in nature, and a reference is needed specifically to the norm of legislation. Article 80 of the Labor Code of the Russian Federation is considered procedural, or explains how an employee can correctly contact the employer with a letter of resignation if he has such a desire or need.
The order specifies the details of the application. After its publication, the resigning employee is familiarized with it against his signature. Subsequently, dismissal is made on the basis of an order, not a statement. The calculation is made on the day of dismissal or the last day of work.
In Art. 80 of the Labor Code of the Russian Federation there is a paragraph stating that, by agreement of the parties, dismissal can occur earlier than two weeks from the date of writing the application. Here you need to keep in mind that agreement of the parties is the most uncertain form of termination of employment relations. The law does not precisely define the form of this agreement. Therefore, the agreement of the parties that the employee be dismissed on the day the application is written is also an agreement.
As a result, the basis may no longer be Art. 80, and art. 78 Labor Code of the Russian Federation. Although, in essence and in the spirit of the law, it refers to other, more significant circumstances, for example, the employer offered the employee enough money to make him want to terminate the employment relationship.
True, the legal difference between dismissal at one’s own request and by agreement of the parties is not that great. It is much more significant if the employee is fired on the initiative of the employer, but disguises this by agreement of the parties. In this case, all hope of being reinstated by virtue of a court decision disappears.
Commentary on Article 80 of the Labor Code of the Russian Federation
The commented article defines the procedure and conditions for terminating an employment contract at the initiative of the employee (at his own request), concluded both for an indefinite period and for a fixed-term one. The previously valid norm (Article 32 of the Labor Code) provided for the termination of a fixed-term employment contract, but in the presence of valid reasons. According to the Labor Code, an employee has the right to terminate an employment contract (including a fixed-term one) by notifying the employer in writing two weeks in advance.
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 (see subparagraph “a”, paragraph 22 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2) .
The commented norm is supplemented by a provision according to which the specified period begins the next day after the employer receives the employee’s resignation letter. An application for voluntary resignation should, in our opinion, be submitted to the employer against signature (on the second copy of the application or the employee is given a receipt of receipt).
In accordance with Art. 40 of the Penal Code, while serving correctional labor, convicts are prohibited from leaving work at their own request without permission in writing from the penal inspection.
In accordance with Part 2 of the commented article, by agreement (agreement) between the employee and the employer, the employment contract can be terminated before the expiration of the established notice period for dismissal. However, if the parties have not agreed on a specific notice period (within a two-week period), the employee is obliged to work for the established two-week period. If the resignation letter does not indicate a specific date of dismissal, then the employer does not have the right to dismiss the employee until two weeks after he submits the application or before the expiration of the period specified in the application. Likewise, an employee does not have the right to leave work without permission without notice of dismissal or before the expiration of the notice period. Such abandonment of work may be considered a violation of labor discipline with corresponding adverse consequences for the employee.
An employee can terminate an employment contract at his own request at any time (including while on vacation, during a period of temporary disability, or on a business trip, since the purpose of such a statement is to notify the employer of dismissal so that he has the opportunity to select a new employee).
In cases where the employee’s application for dismissal is due to the inability to continue working (him accepting full-time training, retirement, transfer of a spouse to another locality, etc.), as well as in cases where the employer has violated the law or other regulatory legal acts on labor , the terms of an employment or collective contract, agreement, the employer is obliged to terminate the employment contract within the period specified by the employee. 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 unions, and the court (see paragraph 2, subparagraph “b”, paragraph 22 of the Resolution Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).
When demanding immediate termination of the employment contract (or within the period specified by the employee), the employee must provide evidence demonstrating the impossibility of continuing work (for example, an order for enrollment in full-time study at a university or an order (instruction) of the employer to send a pregnant woman or a minor on a business trip) .
The main purpose of the notice of dismissal, on the one hand, is to enable the employer to select a new employee to replace the dismissed one, and on the other, to provide the employee with the opportunity to reconsider his decision to dismiss. Part 4 of the commented article establishes the employee’s right to withdraw his application before the expiration of the warning period, except in the case when another employee who cannot be refused employment is invited to take his place in writing (see Article 64 of the Labor Code and the commentary thereto). Thus, the employee can withdraw his application at any time (except in the specified case), and the employer can return it to the employee.
After the warning period has expired, the employer has no right to detain the employee. In practice, there are cases of illegal refusal to dismiss an employee, despite the expiration of the notice period (for example, the employee did not hand over the material assets assigned to him or has a monetary debt, etc.). The legislator clearly defined that the day of termination of the employment contract is considered the last day of work and on this day the employee must be given a work book and other documents related to work, at the written request of the employee, and a final settlement must be made with him (Article 140 of the Labor Code). If the employer has not fired the employee after the expiration of the notice period, he has the right not to go to work. In accordance with Art. 234 of the Labor Code (see commentary to it), the employee is paid the earnings he did not receive during the illegal deprivation of his opportunity to work, since he cannot take another job without a work book.
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. Essentially, this provision provides for the right of the employee and the employer to maintain the validity of the employment contract. In this case, no additional agreements are required.
The commented article does not provide for the employee’s obligation to indicate the reason for dismissal. However, in some cases, the legislator links the reason for dismissal with the provision of certain benefits and guarantees to the employee. In such cases, the reason for dismissal must be indicated (for example, when dismissing voluntarily due to the husband (wife) moving to work in another area or retiring for an old-age pension, the employee retains continuous work experience regardless of the duration of the break in work (in general As a rule, continuous work experience is maintained for three weeks)).
Judicial practice under Art. 80 of the Labor Code of the Russian Federation and the importance of correct understanding of deadlines
The position of the high court regarding the correct understanding of the issue of dates is disclosed in the ruling in case No. 78-KG14-12, which was issued on July 11, 2014. The essence of the matter is that the citizen decided to quit her job. At that moment she was on sick leave, so she sent the application by registered mail via Russian Post. However, some time after the dismissal, she decided to withdraw her application, but she did not succeed, since the organization had already fired her and did not want to reinstate her.
Then she went to court, motivating her statement of claim to declare the dismissal illegal by the fact that it was carried out on the day the organization received the application for dismissal, without waiting two weeks. The opinions of the trial court and the appellate court coincided. The courts decided that the claim should be dismissed. The Supreme Court also agreed with this point of view.
The resignation letter was written on November 2, 2012, received on November 8 of the same year, and by order of November 9, the employee was dismissed on November 2, 2012. The statements that she was forced to sign the statement through moral pressure were not supported by anything, and the employer did not make any mistakes with the dates. The last day on which the employee could withdraw her application was the day it was written and sent. Sending a telegram about the withdrawal of the application on November 22, 2012, as well as a statement at the place of work made in person, no longer had any legal force.
This should be remembered by all those who can write a statement without thinking, guided by emotions. You can withdraw your resignation at your own request only before the dismissal procedure is completed. Two weeks is not some kind of control period when it is still impossible to fire an employee. Dismissal occurs from the day when the employee submitted a statement to the employer. The law simply requires that this happen no later than two weeks before the actual settlement. This is not the time to think and make a final decision. You need to write an application for calculation only after the final decision has been made.
