How to quit voluntarily without work. Dismissal of one's own free will - registration rules and disputes Article 80 of the Labor Code of the Russian Federation

The employee has the right to terminate the employment contract by notifying the employer in writing no later than two weeks in advance, unless another period is established by this Code or other federal law. The specified period begins the next day after the employer receives the employee's application for dismissal.

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

In cases where the employee’s application for dismissal on his own initiative (of his own free will) 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.

Prior to the expiration of the notice of 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 refused to conclude an employment contract.

Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer is obliged to give the employee a work book, other documents related to work, at the written request of the employee, and make the final settlement with him.

If the employment contract has not been terminated after the expiration of the term of notice of dismissal and the employee does not insist on dismissal, then the employment contract continues.

The provisions of Article 80 of the Labor Code of the Russian Federation are used in the following articles:

According to statistics, leaving at will (Article 77 of the Labor Code of the Russian Federation) is the most common type of termination of cooperation. Employees choose this option because there is no need to write the real reason for leaving the organization. And employers welcome: there is no need to carry out a complicated procedure for terminating a contract, paying additional compensation, or looking for good reasons to cancel an agreement.

According to the Labor Code, in order to terminate an employment contract on your own initiative, you must:

To write an application. There is no strict form, follow the general rules. A sample can be requested at .
Submit the document personally to the head or through personnel officers. You can send a valuable letter with an inventory by mail.
Work 2 weeks. You can leave without working out if:
1. Mutual consent of the parties.
2. Enrollment in the university for full-time education.
3. Retirement.
4. Moving to a new place of military service of the spouse.
Familiarize with an order get on hand a work book and calculation.

The legislation provides for the possibility of going on vacation with the subsequent termination of cooperation.

Voluntary dismissal of an employee

When terminating a TD, the employer takes the following measures:

Registration of the application. Accept the document from the employee, check the correctness of the drafting, endorse it and determine the working period of 2 weeks, unless otherwise provided by law.
Dismissal order. After observance of the formalities related to mandatory working off, the personnel officer is obliged to make an order (form T-8 or T-8a). On the day of departure, the employee is familiarized with the document against signature; at his request, the manager is obliged to issue a certified copy.
Income statement for the last 2 years. Received in the accounting department (in accordance with the norms of the Order of the Ministry of Labor No. 182n). If one has not been issued, the employee has the right to request it at any time. Law No. 255-FZ dated December 29, 2006 takes 3 working days to issue a certificate. The rules for compiling are regulated by letters of the FSS No. 25-0314 / 12-7942 and No. 15-02-01 / 12-5174l.
Certificate of deductions to the FIU. According to Law No. 27-FZ of April 1, 1996, the accounting department is obliged to prepare a document containing information on all deductions and information intended for the pension fund. Depending on the place of presentation, a certificate is issued in the form of SZV-M or RSV-1 PFR.
Fixing data in(Form No. T-2). In the column "Grounds for terminating the TD" they write "Employee's initiative", in the line "Date" indicate the last day of work, enter information about the order. The data is endorsed by the personnel officer and the resigning person.
Note-calculation. On the day of departure, an internal document is drawn up in the form No. T-61. On the front side, information about the employee and the termination of the TD is indicated. On the reverse side, the accounting department calculates the due amounts.
Calculation. According to Art. 84.1 and 140 of the Labor Code, on the last day, the employee is paid wages for hours worked, bonuses and other payments due.
Fixing dismissal in labor. The personnel officer is obliged to fill out the seniority record book in accordance with the requirements of part 5 of Art. 84.1 of the Labor Code, certify the record with the signature of a specialist in the personnel department, the employee himself and seal it with a wet seal. Then on receipt.

During the dismissal, the employee may request in writing and other documentation, for example, a copy of the order for admission to the state, and so on. The employer is obliged to issue the required duplicates, duly executed.

Application deadlines

The procedure for dismissal at the request of the employee (Article 77 of the Labor Code of the Russian Federation) requires that an application be submitted 2 weeks before leaving. If, the paper is sent 3 days before the date of termination of cooperation. But the heads of organizations are required to notify the higher management and the personnel department at least a month before the termination of the TD.

The employer does not have the right to increase the working time, but there are cases when they can be reduced:

the employee goes on vacation, after which he immediately quits. The application is submitted on the last actually worked day, and all personnel documents are drawn up on the same date;
by mutual agreement of the parties;
found an employee for the position of the resigning;
violations of discipline, norms of the Labor Code or local acts have been committed.

Part 4 Art. 80 of the Labor Code provides for the possibility of withdrawing a letter of resignation during the period of working off.

Which article of the Labor Code to refer to when applying - 77 or 80

Representatives of Rostrud gave an exhaustive answer:

Clause 15 of the “Rules for maintaining and storing work books” states: “upon termination of the TD at the initiative of the employee, Art. 77 with the corresponding paragraph.
The instruction that is followed when filling out the labor also prescribes a reference to article 77 with an indication of the paragraph.

Based on the norms of the law, the correct entry should look like: “Dismissed of her own free will, paragraph 3 of part 1 of article 77 of the Labor Code of the Russian Federation”, you can also add the reason for the calculation - in connection with moving, studying. The indication of Article 80 makes information about the termination of the TD invalid.

Letter of dismissal to work

What difficulties may arise

Despite the fact that the termination of activities in the organization of one's own free will is a simple procedure from the point of view of the law, practice shows that difficulties often arise. Let's look at the most common ones and find a solution:

The employer refuses to accept the application. Send the document by mail with an inventory and notification.
The employee filed a complaint and did not go to work. This is considered absenteeism and.
The manager forces the employee to resign at will. Go to court, this is a violation of Art. 391, 394 and 395 of the Labor Code.
The dismissal was issued before the due date. Challenge the action in court.

Many do not defend their rights in court, fearing high costs. According to Article 393 of the Labor Code, all costs of conducting a case are paid by the employer if the court recognizes the actions of the head as illegal. The employee will be reinstated and compensated.

With the withdrawal of the application, too, there are nuances. The employer has the right to refuse to recall if an employee who is transferred to work from another institution has already been found for the position of the dismisser.

If you are taking a vacation and then plan to quit, remember that you can withdraw your resignation only before the start of the vacation (Article 127 of the Labor Code).

Conclusion

The Constitution guarantees the right to work, and the Labor Code enshrines the right of an employee to quit of his own free will without giving reasons. To terminate employment, it is enough to correctly draw up an application and comply with the formalities provided for by law.

For the employer, this form of termination of the TD is not burdensome: there is no need to collect evidence of the employee’s non-compliance or draw up internal documentation about absenteeism or disciplinary violations, using a special dismissal procedure.

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

If the employment contract has not been terminated after the expiration of the term of notice of dismissal and the employee does not insist on dismissal, then the employment contract continues.

Commentary on Art. 80 of the Labor Code of the Russian Federation

Employment contract- urgent or with an indefinite period of validity - can be terminated at the initiative of the employee with a mandatory written warning of this to the employer at least two weeks before dismissal, unless another period is established by the Labor Code or other federal law (see,).

Dismissal of an employee of his own free will before the expiration of the warning period is possible both by agreement of the parties, and if there are good reasons (retirement, enrollment in studies, etc.), as well as in cases of established violation by the employer of the labor rights of employees (see clause 22 of the PPVS of the Russian Federation of March 17, 2004 N 2).

If the employee withdraws the application before the expiration of the warning period, dismissal is not carried out, except in cases established by the Labor Code and other federal laws (see).

After the warning period has expired, the employer does not have the right to detain the employee and must dismiss him with the issuance of a work book on the last day of work and the final settlement (see).

If, after the expiration of the warning period, the employment contract has not been terminated, i.e. the corresponding order (instruction) of the employer was not issued, and the employee does not insist on dismissal, the employment contract continues.

Article 80 of the Labor Code of the Russian Federation, like all other articles of Chapter 13, are special relatively - they regulate the features of each method of termination of labor relations. Article 80 regulates the termination of an employment contract at the initiative of the employee (at his own request).

Most often, employers are faced with such problems of these articles - if article 80 is special regarding, then how should an employee be fired, which article should be indicated in the work book?

According to government decree No. 225 of April 16, 2003, it was established that when employees are dismissed for the reasons provided for in Art. 77, an entry is made in the work book with reference to the relevant paragraph of this article. Exceptions are clause 4 (termination of the contract at the initiative of the management) and clause 10 (conditions independent of the will of the parties), in such a case a mark is made with reference to the relevant article of the legislation.

So, when an employee is dismissed at his own request, it is indicated.

Second commentary on Article 80 of the Labor Code

1. Article 80 of the Labor Code of the Russian Federation grants the right to the employee on his initiative at any time to terminate the employment contract by notifying the employer in writing no later than two weeks in advance, unless the Labor Code of the Russian Federation or other federal law establishes a different period. You need to know that the specified period begins the next day after the employer receives the employee's application for dismissal. This provision reflects the principle of freedom of labor and freedom of labor contract.

2. An employment contract, by agreement of an employee who has submitted an application for resignation of his own free will, with the employer may be terminated even before the expiration of the notice of dismissal.

3. In cases where the employee's application for dismissal is due to the impossibility of continuing work (accepting him for full-time study at a university or other educational institution, retirement, transfer of a spouse to another locality and other good reasons), as well as in case of violation by the employer of the employee's labor rights, the terms of the labor or collective agreement, agreement, the employer is obliged to terminate the employment contract within the period specified in the employee's application.

4. The employee has the right to withdraw his application at any time before the expiration of the warning period, except when an employee from another organization is invited to his place in writing, to whom. The employer is obliged (except for the specified case) to cancel the application of the employee (to return it to him).

5. It should be borne in mind that the Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 of March 17, 2004 in paragraph 22 indicated that if after the expiration of the warning period the employment contract was not terminated and the employee does not insist on dismissal, the employment contract is considered continued.

If an employee under the age of 18 has submitted an application for dismissal, the commission on minors' affairs must be notified of this.

6. If an employee left work before the expiration of the warning period and without an order for his early dismissal, the employer may qualify this as absenteeism without good reason and dismiss such an employee for absenteeism (see).

The employer does not have the right, without the consent of the employee, to dismiss him on the application submitted by him before the expiration of the notice period. He cannot fire him under Art. 80 of the Labor Code of the Russian Federation, if there is no written statement from the employee about this.

7. After the warning period has expired, if the employer does not dismiss the employee for some reason (which is often found in practice), the latter may leave the job. The employer is obliged to issue him a work book and make settlements with him. Otherwise, according to, the employee is paid the earnings that he did not receive for the time of illegal deprivation of his opportunity to work, since he cannot enter another job without a work book.

8. During the warning period, the employer has the right to dismiss the employee if he committed an offense that is the basis for dismissal (appeared at work in a state of intoxication, etc.).

In case of dismissal of a temporary and seasonal employee at his own request, the notice period is three calendar days.

9. The notice period is calculated from the next day after the employee submits the application. If the last day of the notice period falls on a non-working day, the expiration date of the notice period is the next business day following it. On the last day of work, the employer is obliged to issue a dismissal and make a calculation, issue a work book to the employee with a completed record on the grounds for dismissal.

10. Since Art. 80 does not stipulate (as it was in Article 31 of the Labor Code) that in this way the employment contract is terminated for an indefinite period, we conclude that it provides a similar right to terminate a fixed-term employment contract at will.

11. Those sentenced to correctional labor without imprisonment during the period of their serving cannot be dismissed at their own request without permission in writing from the criminal correctional inspection (

Labor Code of the Russian Federation:

Article 80 of the Labor Code of the Russian Federation. Termination of the employment contract at the initiative of the employee (at his own request)

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

Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer is obliged to issue a work book to the employee or provide information on labor activity (of this Code) with this employer, issue other documents related to work, at the written request of the employee and make the final settlement with him.

If the employment contract has not been terminated after the expiration of the term of notice of dismissal and the employee does not insist on dismissal, then the employment contract continues.

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Comments on Article 80 of the Labor Code of the Russian Federation, judicial practice of application

Article 80 of the Labor Code of the Russian Federation establishes a general (uniform) procedure and conditions for terminating, on the initiative of an employee, both a fixed-term employment contract and an employment contract concluded for an indefinite period. The right of the employee to terminate the employment contract before its expiration on his own initiative is not connected with the presence of valid reasons. The employee has the right to terminate at his own request any employment contract at any time. He is only obliged to notify the employer in writing no later than For two weeks.

Other deadlines for warning the employer of dismissal

The employee has the right to terminate the employment contract by notifying the employer in writing no later than two weeks in advance. The following norms of the Labor Code of the Russian Federation establish other terms for the notice of dismissal:

. The result of the test for employment. If during the trial period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, notifying the employer in writing about this. three days.
. Early termination of the employment contract at the initiative of the head of the organization. The head of the organization has the right to terminate the employment contract ahead of schedule by notifying the employer (owner of the organization's property, his representative) in writing no later than one month.
. Termination of the employment contract. An employee who has concluded an employment contract for a period of up to two months is obliged to notify the employer in writing of three calendar days on early termination of the employment contract.
. Termination of an employment contract with employees engaged in seasonal work. An employee engaged in seasonal work is obliged to notify the employer in writing about the early termination of the employment contract for three calendar days.
. Termination of an employment contract (with an employee working for an employer - an individual). The terms of the notice of dismissal, as well as the cases and amounts of severance pay and other compensation payments paid upon termination of the employment contract are determined employment contract.
. Features of termination of an employment contract with an athlete, with a coach. An athlete, a coach have the right to terminate the employment contract on their own initiative (at their own request), notifying the employer in writing no later than one month, except in cases where the employment contract is concluded for a period of less than four months.

Written notice of resignation is required. An oral statement by an employee about the termination of an employment contract cannot be the basis for the employer to issue an appropriate dismissal order.

By agreement between the employee and the employer, the employment contract may be terminated even before the expiration of the established notice period. At the same time, it should be borne in mind that in this case the basis for dismissal will be the employee’s own desire, and not the agreement of the parties, provided for in paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

Clarifications of the Supreme Court of the Russian Federation

Clause 22 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" contains the following explanations:

Termination of the employment contract at the initiative of the employee

When considering disputes on termination at the initiative of an employee of an employment contract concluded for an indefinite period, as well as a fixed-term employment contract (paragraph 3 of the first part of Article 77, Article 80 of the Labor Code of the Russian Federation), the courts must keep in mind the following:

a) termination of the employment contract at the initiative of the employee is permissible in the case when the filing of an application for dismissal 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 obligation to prove it rests with the employee;
b) the employment contract may be terminated at the initiative of the employee and before the expiration of the two-week notice period for dismissal by agreement between the employee and the employer.
c) based on the content of part four of article 80 and part four of article 127 of the Labor Code of the Russian Federation, an employee who warned the employer about the termination of the employment contract has the right to withdraw his application before the expiration of the warning period (and if leave is granted with subsequent dismissal - before the day the vacation begins), and dismissal in this case is not carried out, provided that another employee is not invited to his place in writing ... (for details, see clause 22 of the Resolution).

Positions of the Constitutional Court of the Russian Federation

Part 1 Art. 80 of the Labor Code of the Russian Federation on the possibility of an employee to quit at any time does not contradict the Constitution

Having provided in the first part of Article 80 of the Labor Code of the Russian Federation the possibility for an employee to quit without hindrance at any time on his own initiative and at the same time establishing the only requirement - to notify the employer about this no later than two weeks in advance, the federal legislator created a legal mechanism that ensures the exercise of the right of citizens to freely dispose of their abilities to work. In addition, in order to take into account the interests of employees as much as possible, part four of the same article gives the employee the right to withdraw his application before the expiration of the notice of dismissal (unless another employee is invited in writing to take his place, who cannot be refused to conclude an employment contract).

At the same time, the Supreme Court of the Russian Federation in Resolution of the Plenum dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" indicates the need for the courts to check, when considering disputes on termination of an employment contract at the initiative of an employee, the assertion that there is no voluntary expression of the employee's will to dismiss (subparagraph "a" of paragraph 22).

Thus, the specified legal regulation is aimed at protecting the labor rights of employees and cannot be considered as violating the constitutional rights of the applicant (determination of the Constitutional Court of the Russian Federation of November 20, 2014 N 2577-O)

Part 3 Art. 80 of the Labor Code of the Russian Federation on the possibility of an employee to quit at any time in case of violation of the law by the employer does not contradict the Constitution

Part three of Article 80 of the Labor Code of the Russian Federation provides the employee with the opportunity to terminate the employment relationship at the time chosen by him in the event that the employer violates the requirements of labor legislation, regulations and other regulatory legal acts containing labor law norms, local regulations, the terms of the collective agreement, agreement or labor contract; this norm is of a guarantee nature and in itself cannot be regarded as violating any constitutional rights of citizens (determination of the Constitutional Court of the Russian Federation of June 23, 2015 N 1242-O)

Part 3 Art. 80 of the Labor Code of the Russian Federation on the possibility of an employee to quit at any time in the event of retirement does not contradict the Constitution

The Labor Code of the Russian Federation provides for the right of an employee to terminate an employment contract with an employer by notifying him of this in advance in writing. At the same time, as the Constitutional Court of the Russian Federation previously noted, the requirement addressed to the employee to warn the employer of his dismissal, as a general rule, no later than two weeks (part one of Article 80 of the Labor Code of the Russian Federation) is due to the need to provide the employer with the opportunity to timely select a new employee for the vacant position, and the right of the employee, enshrined in part four of the same article, to withdraw his application before the expiration of the notice period for dismissal (unless another employee who cannot be denied a contract is invited to take his place ii of the employment contract) is aimed at protecting the labor rights of the employee (determinations of January 25, 2007 N 131-О-О and of March 22, 2011 N 297-О-О).

As an exception to the general rule about the need to work for two weeks from the moment of filing a letter of resignation at one's own request, part three of Article 80 of the Labor Code of the Russian Federation obliges the employer to terminate the employment contract within the period specified in the employee's application, if the dismissal is due to the impossibility of continuing work (enrollment in an educational organization, retirement and other cases).

Thus, the contested legal provision, allowing to determine the date of dismissal in the application for dismissal of one's own free will, acts as an additional guarantee for persons wishing to leave work due to retirement, is aimed at maximum consideration of their interests in a situation where it is impossible for them to continue working, and does not violate the constitutional rights of the applicant (ruling of the Constitutional Court of the Russian Federation of 03.07.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

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

(as amended by Federal Laws No. 90-FZ of 30.06.2006, No. 185-FZ of 02.07.2013)

If the employment contract has not been terminated after the expiration of the term of notice of dismissal and the employee does not insist on dismissal, then the employment contract continues.