Employment contract article 80. Dismissal of one's own free will - registration rules and disputes. Notice period for dismissal

What is a defined labor law violation? This question is answered by subparagraph “b” of paragraph 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, which states that it must be borne in mind that these violations can be established, in particular, by the bodies that carry out state supervision and control over compliance with labor legislation, trade unions, labor dispute commissions, courts.

Many controversial questions can arise: does the right to dismiss at will without working off depend on the form of employee training - full-time, evening, part-time? Is it necessary to dismiss an employee without working off, if he is only enlisted and has not yet started classes? What about pensioners who continued to work after retirement age - do they have the right to be fired without working off?

Dismissal of a pensioner, the latest clarifications of the Ministry of Labor

All terms of the required working off are prescribed in paragraph 3 of Art. 80 of the Labor Code of the Russian Federation. Should a pensioner work out the prescribed period?
If an employee is dismissed on the basis of retirement, then he has the right to receive a calculation on the same day on which he writes an application indicating the reason for dismissal. But most often, the employer calculates such an employee on the day the next salary is paid, having agreed on this with the retired pensioner. It is not necessary to work out the prescribed two weeks. To avoid misunderstandings on the part of the accounting department, it is advisable to indicate your desire to terminate the employment relationship on the day of retirement in advance.

In the presence of such a right, the employer is obliged to dismiss the employee within the period determined by him. This is stated in paragraph 3 of Art. 80 of the Labor Code of the Russian Federation. This article does not say that a resigning employee must explain the reason for his dismissal. But if the dismissal gives the employee the right to receive any additional benefits, then the reason must be indicated. The dismissal of a pensioner at his own request without working off in 2020 is a benefit guaranteed to him by the labor code. Therefore, the application must indicate the reason.

Dismissal "without working off two weeks": is it possible or not

The government often considers raising the retirement age as many continue to work. The enterprise is also not interested in the loss of able-bodied people with valuable experience and knowledge. Dismissal of a pensioner at his own request “without working off” is possible subject to two conditions:

The wording "working off two weeks" is incorrect. According to Art. 80 of the Labor Code of the Russian Federation, it is necessary to notify the director of the termination of cooperation. We are talking about the warning period, not additional responsibilities. Since the name is common, we will continue to conditionally call this period “working off”.

How to properly issue a dismissal of one's own free will, according to article 77, paragraph 3, part 1

As a rule, each organization has its own generally accepted form of writing all kinds of statements. But by law, a letter of resignation does not have a mandatory form, and no one has the right, upon dismissal on their own initiative (according to the first part of Article 77, paragraph 3 of the Labor Code), to tell the employee - write like this or the document will not be accepted.

Also, the employee can continue his labor activity, if he was not familiarized with the dismissal order against signature. But the management, on the basis of part 6 of article 80 of the Labor Code, may consider the application canceled if the employee went to work after the period indicated in the application as the last day of working. And when re-expressing a desire to quit, the employee will be required to work for two weeks again.

Should a pensioner work out upon dismissal of his own free will, and what articles of the Labor Code regulate this

When a pensioner leaves, the employer may not have this time, because, having submitted an application today, the employee may not go to work tomorrow. Therefore, it is recommended to agree in advance with the employee on the date of dismissal. To agree or refuse the date proposed by the manager is the right of the employee. The employer does not have the right to detain a retired pensioner in any way under any circumstances.

The legislation does not contain a special form or an approved sample, therefore it is written in a free form indicating the details of the parties, the date and signature. The wording itself may look like this: “I ask you to dismiss me of your own free will (day, month, year) in connection with retirement.”

How to quit voluntarily without work

  1. During the probationary period, when the refusal of the employment relationship follows from the employee or directly from the employer. The form of registration of a break in relations at the initiative of an employee is a letter of resignation, an employer is an order to terminate the contract. Such an opportunity is provided for when the parties are in labor relations for a period of not more than 3 months. If the specified time is exceeded, the processing will be 14 days.
  2. When performing seasonal work. An employee can notify the administration 3 days in advance, but if the initiative comes from the company, the notification is given to the employee 7 days in advance. Often this happens when an employment contract is terminated due to the liquidation of an enterprise or a reduction in personnel.
  3. If the contract is of a short-term nature, it is concluded for a period of not more than 2 months. This requirement applies to relations during the liquidation of an enterprise or the closure of an individual enterprise.
  • grounds for termination of the contract - art. 80 of the Labor Code of the Russian Federation;
  • date of dismissal - the employer can agree with it or set a different period - this is his right, not an obligation;
  • full name of the employee;
  • comment on the termination of obligations without working off - pension, pregnancy, poor health, change of residence, enrollment in a university, etc .;
  • attachment of documents - confirmation of the reason for leaving the workplace.

Dismissal of a pensioner without working off at his own request

  1. achievement by the employee of retirement age;
  2. the need to move to another city or country;
  3. transfer of a pensioner's spouse to work in another city or country;
  4. a disease that makes it impossible to continue working;
  5. violation of the employment contract by the head of the organization;
  6. caring for a disabled or sick family member. In this case, the retired employee is required to provide a medical certificate.
  1. Article 3 of the Labor Code warns employers that they have no legal right to fire an employee who has reached retirement age. If the head violates this law, the pensioner has every reason to apply to the court with a request to reinstate him in his position. The court will satisfy such a claim and will consider such a situation as discrimination of a person by age. In this situation, the pensioner can count on compensation for moral damage.
  2. The employer has the right to dismiss the pensioner if it does not correspond to the position held. To confirm that the employee does not have the knowledge and skills to perform the job, the manager is required to conduct a performance appraisal. When a retired employee does not pass the certification, the conclusion indicates the absence of the necessary labor skills.
  3. If the company is going to be liquidated, the process of dismissal of pensioners is carried out on a general basis.
  4. When a pensioner does not want quit voluntarily and has the necessary skills to perform the job, the manager may suggest that such an employee switch to part-time work. This option will enable the employer to reduce wage costs and save a job for a retired employee.

Dismissal of one's own free will

Good afternoon. For good reasons, in connection with the change of residence, I was forced to resign. But there is no time to work off the spirit of weeks. I am not leaving yet, because there is no own housing at the place of moving. Therefore, I cannot provide supporting documents. In addition, I have two children, one of them is 6 years old. Tell me please. How can I quit without working two weeks. Thanks

In cases where the employee's application for dismissal on his initiative (of his own free will) 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 norms of labor law, 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.

Article 80 of the Labor Code of the Russian Federation: dismissal of one's own free will without working off

The general procedure for terminating an employment contract at the initiative of an employee is enshrined in Article 80 of the Labor Code of the Russian Federation. It also establishes the period of working out, which in a standard situation is two weeks. If an employee who is employed in seasonal work quits or signed an employment contract for a period of up to two months, you need to warn the employer about leaving three calendar days in advance. A similar rule applies to those who decide to quit during the period tests for employment(it does not matter what probationary period the employer has set under the Labor Code 2020 - a week, a month or more).

Does Article 80 of the Labor Code of the Russian Federation provide for voluntary dismissal without working out? Yes, moreover, in Part 2 of Article 80 of the Labor Code of the Russian Federation, the possibility of terminating labor relations by agreement of the parties before the warning period expires, and in Part 3 of the same article, circumstances under which an employee cannot be denied early dismissal.

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When dismissed, the working class does not want to work for two weeks, as required by employers. There can be many reasons - the inability to continue working for health reasons, lack of time, an urgent transition to a new job. How to avoid "working off" and immediately after the letter of resignation legally stop working? Told below

The procedure for dismissal of one's own free will without warning the authorities is prescribed in article 80 of the Labor Code of the Russian Federation, part 3. It says the following:

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

But this wording is very vague. It is necessary to analyze each item in more detail in order to understand in which cases an employee of the company is obliged to continue working for 14 days, and when he has the right to leave immediately.

When is an employee required to work their 14 days?

Legally, in Article 80 of the Labor Code of the Russian Federation on the dismissal of an employee at his own request without working off, there is no term "working off". Working off 14 days upon dismissal is not prescribed in the Labor Code of the Russian Federation. This term is exclusively public, it was introduced by employers for their own convenience. In fact, the employee is not legally required to perform his job duties for at least another two weeks. All that he is required to do by law is to notify his superiors of his departure at least fourteen days before the actual dismissal. At the same time, he can already submit all documents for calculation, collect his things and leave (if he was approved for sick leave, vacation, parental leave, additional days off).

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

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

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

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

Exemption from work without the consent of superiors

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

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

In 2004, the Plenum of the Supreme Court of the Russian Federation (equivalent to Article 80 of the Labor Code of the Russian Federation “Dismissal of one’s own free will without working off”) ruled one more reason why one can quit without prior notice - the transfer of a spouse (wife) abroad.

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

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

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

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

Step-by-step guide: leaving work without work

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

The main ways to avoid mining, apart from the above cases:

  • take sick leave;
  • take extra days off
  • go on vacation;
  • come out decree.

Each method should be analyzed step by step.

Sick leave

Sick leave does not need to be coordinated with superiors. It is enough to show a certificate from a medical institution that it is necessary. The employer will be required to sign a paper on the provision of days off for treatment.

Immediately after signing the sick leave (preferably 2 weeks or more), you can announce your decision to leave the organization. At the same time, the requirements of the law will be observed - the employee notified in advance of his departure from the organization. The employer after the news cannot cancel the sick leave.

How to avoid working off with a decree

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

  • announce the decision to dismiss, then immediately submit documents for a decree;
  • being on maternity leave, a pregnant woman can call her superiors or go to a working building and announce her decision to leave;
  • first submit documents for maternity leave, and immediately after signing them, inform about dismissal.

In none of the three cases, the management can not refuse either a dismissal or a decree. The employee goes on maternity leave, while he remains obliged to work for 14 days upon dismissal of the Labor Code of the Russian Federation.

Dismissal before vacation or weekend

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

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

An example of a declarative order

The presence or absence of working out does not depend on the form of the application. Only the reason for leaving is stated on the application. Those employees who have the following in the column "Reason for dismissal" can refuse to work out:

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

Other points when considering the question of working off are not important. Sample letter of resignation standard.

How else can you quit a job?

You can easily quit without working off if an individual (employee) does not attend work at the time of the announcement of his decision. During a vacation, a day off to care for a child, a hospital employee, after submitting an application for resignation, simply continues to be on vacation, and the employer does not have the right to force him to “work” for 2 weeks. If the employee is no longer fulfilling his duties due to vacation or sick leave, he will receive legal vacation deductions for another 2 weeks, after which he will officially be unemployed.

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

You can just not show up for work. No one will send an employee to court for this. However, during all two weeks, when he avoids his work duties, the person will still be listed in the organization. Absence from work will be regarded as absenteeism. For absenteeism, the authorities deprive the employee of part of the wages. But the more dangerous thing he can do is to leave a negative note in the recommendations about the employee. It will not be possible to dispute it in any way, because the person leaving really did not visit the workplace and did not fulfill his duties, although he was still registered in the organization under the employment contract.

Possible subtleties and nuances

Since the provisions under which an employee can quit abruptly are not clearly spelled out, a dispute arises between the parties. If this dispute is not resolved through negotiations, you can apply to the court or labor bodies authorized to resolve disputes of a similar nature.

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

In extreme cases, the parties go to court. This makes sense only if the coercion to perform work duties caused severe moral and material damage to the person leaving, if the situation is controversial - the person had to be fired on probation, the boss wanted to fire the employee himself, but a dispute began about the initiative, etc.

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

Full text of Art. 80 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2020. Legal advice under 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 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 norms of labor law, 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.

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

1. Article 80 of the Labor Code of the Russian Federation refers to the most common basis for terminating an employment contract - at the initiative of an employee. Such an initiative can be caused by any reasons - moving, the desire to move to another job, etc.

In this case, the employee is obliged to notify the employer in writing of the upcoming dismissal, which he has no right to interfere with.

A prerequisite is that such a notice (application) is submitted two weeks before the upcoming dismissal (which protects the interests of the employer, who is given sufficient time to find a new employee). Within 14 days, the employee continues to work on the same terms.

It should be borne in mind that the two-week period begins only on the day after the delivery of the letter of resignation of one's own free will to the employer.

The application for dismissal of one's own free will is submitted in writing. It is advisable to draw up an application in duplicate so that one copy with the employer's mark of receipt remains with the employee. Similarly, it is possible to send the relevant application to the employer by registered mail with acknowledgment of receipt (in this case, the two-week period will start from the date the letter is received by the employer).

In paragraph 22 of the resolution of the Plenum of the Supreme Court of the Russian Federation on the application by the courts of the Labor Code of the Russian Federation, attention is drawn to the fact that termination of an employment contract at the initiative of an employee is permissible only if the filing of an application for dismissal was his voluntary expression of will. If the employee claims that the employer forced him to submit a letter of resignation of his own free will, then this circumstance is subject to verification. The obligation to provide evidence of such coercion rests with the employee.

2. The federal law may provide for a shortened or extended term for warning the employer of voluntary dismissal.

However, the legislator retains one more opportunity for the employee and the employer to maintain labor relations. If the notice period for dismissal has expired, and the employment contract has not been terminated, and the employee does not insist on dismissal, the employment contract continues. This is possible, in particular, when the parties to the employment contract settle any conflict situations that caused the employee to submit a letter of resignation of his own free will.

For example, by the ruling of the Supreme Court of the Russian Federation of August 10, 2012 N 78-KG12-10, the claim for reinstatement was satisfied, since the defendant (employer) did not verify the intention of the plaintiff, who was absent from work on the last day, to quit under Art. 81 of the Labor Code of the Russian Federation, did not make a final settlement with her that day, did not issue her a work book and other necessary documents; legal grounds to consider that the plaintiff lost the opportunity to exercise the right to withdraw her application for dismissal from the moment the employer issued the order to dismiss her or from the end of the working day, the defendant did not have.

Another commentary on Art. 80 of the Labor Code of the Russian Federation

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

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

In practice, it is not uncommon for an employer to delay making a settlement with an employee and issuing a work book to him, citing the fact that the employee did not fill out the so-called bypass sheet, did not hand over the material values ​​he accepted, etc. This kind of practice is not provided for by labor legislation, and therefore is illegal. Moreover, after the expiration of the term of notice of dismissal, the employee has the right to stop working, and the employer is obliged to issue him on the day of dismissal (the last day of work) a work book and, upon a written request from the employee, copies of documents related to work, as well as pay all amounts due to him from the employer (see articles 62, 140 of the Labor Code and commentary to them).

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

4. The Supreme Court of the Russian Federation draws the attention of the courts to the need to proceed from the fact that termination of an employment contract at the initiative of an 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 file a letter of resignation of his own free will, then this circumstance is subject to verification and the obligation to prove it rests with the employee (subparagraph "a", paragraph 22 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 " On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation). However, the threat of the employer to terminate the contract with him on his own initiative cannot be considered as forcing the employee to resign at his own request, provided that the employer had the grounds for this, provided for by law (see article 81 of the Labor Code and commentary to it).

5. If, before the expiration of the notice period for terminating the employment contract, the employee refused to be dismissed of his own free will, he is considered not to have submitted an application and cannot be dismissed on the grounds under consideration. An exception is the case when another employee is invited in writing to replace the resigning employee, who, by virtue of the law, cannot be refused to conclude an employment contract. The wording of the commented article is quite unambiguous: only those cases are meant when another employee is invited to take the place of an employee leaving of his own free will, moreover, in writing, i.e. a person employed by another employer, dismissed in the order of transfer to this employer (see article 72, paragraph 5 of article 77 of the Labor Code and commentary to them). Accordingly, all other guarantees established by law for concluding an employment contract (see Article 64 of the Labor Code and the commentary thereto) do not apply to the situation provided for by the commented article. For example, a voluntary resignation letter cannot be denied to an employee on the grounds that the job is to be filled by a pregnant woman who is promised the job.

When granting leave with subsequent dismissal in the event of termination of the employment contract at the initiative of the employee, this employee has the right to withdraw his application for dismissal before the day the vacation begins, if another employee is not invited to his place in the order of transfer (see article 127 of the Labor Code and commentary to it ). In the event that during the period of being on vacation a temporary disability of the employee has occurred, as well as for other valid reasons, the vacation is subject to extension by the appropriate number of days (see Article 124 of the Labor Code and the commentary to it), while the day of dismissal is considered the last day of vacation. However, if the employee insists on terminating the employment contract from the originally determined date, his claim must be satisfied.

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

6. If after the expiration of the termination notice period, the employment contract has not been terminated and the employee does not insist on dismissal, then the contract continues. Thus, the fact of the expiration of the work period by the employee excludes the possibility for the employer to terminate the employment contract on the basis in question, if "the employee does not insist on dismissal." The last wording is broad and vague. It should be assumed that it covers the case when, after the expiration of the term of notice of dismissal, the employee went to work and was admitted to it (that is, continued to fulfill the obligations under the employment contract). At the same time, part 6 of the commented article should also apply when the employee expressed a desire to continue working and was not admitted to it, however, the employer delayed the issuance of a work book, other documents required by the employee related to work, as well as making settlements with him.

The forms in which an employee can "insist on dismissal" are not defined by law. The most obvious is the termination of work after the expiration of the termination notice; however, the will of the employee in other forms is not excluded during the continuation of work. In the latter case, the dismissal must be carried out within other terms agreed by the parties.

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

7. The period of notice by the employee of the employer about the upcoming dismissal is determined by labor legislation. In accordance with the commented article, an employee, when terminating an employment contract, is obliged to notify the employer in writing no later than two weeks in advance. Therefore, a notice of dismissal of one's own free will can be made earlier than two weeks in advance.

A temporary or seasonal worker must notify the employer of this three days in advance (see Articles 292, 296 of the Labor Code and commentary thereto). The same period is provided for when an employee is dismissed of his own free will during the test period (see article 71 of the Labor Code and commentary thereto). 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 no later than one month in advance (see Article 280 of the Labor Code and commentary thereto). The expiration of the term begins the next day after the calendar date, which determines the submission of the application (see Article 14 of the Labor Code and commentary thereto).

The absence of an employee at work for good reasons (for example, due to temporary disability) is not a basis for extending the period of working out upon dismissal of one's own free will. At the same time, the employee's refusal to dismiss may be declared by the employee during the period of his absence from work for the indicated reasons.

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

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

The fact that an employer violates laws and other regulatory legal acts containing labor law norms, the terms of a collective agreement, an agreement or an employment contract, as a circumstance obliging the employer to terminate the employment contract within the period specified in the employee’s application, can be established, in particular, by the bodies exercising state supervision and control over compliance with labor legislation, trade unions, CCC, the court (subparagraph "b", paragraph 22 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2). In these cases, the employer is obliged to terminate the employment contract within the period requested by the employee.

In all other cases, regarding the termination of the employment contract at the initiative of the employee without working off the period established by law or with a reduction in this period, the consent of the parties must be reached (subparagraph "b", paragraph 22 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2). It can be expressed in the form of a written statement of the employee about the dismissal of his own free will, indicating in it the conditions for dismissal without working off or with a reduced term of working off, or the corresponding order of the employer containing the signature of the leaving employee. Since the Labor Code does not provide for a form of agreement between the employee and the employer regarding the period of working out upon dismissal of one's own free will, such an agreement can also be reached orally. However, one should take into account the difficulty of proving the existence of this agreement.

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

The submission by an employee of a written application for dismissal of his own free will cannot be considered a circumstance that excludes the possibility of terminating an employment contract with him at the initiative of the employer - if there are grounds for this established by law.

9. On the specifics of termination of an employment contract with an athlete at the initiative of the latter, see Art. 348.12 of the Labor Code and commentary to it.

Consultations and comments of lawyers on Article 80 of the Labor Code of the Russian Federation

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  • Chapter 8. PARTICIPATION OF EMPLOYEES IN THE MANAGEMENT OF THE ORGANIZATION
  • Chapter 9. RESPONSIBILITY OF THE PARTIES OF SOCIAL PARTNERSHIP
  • PART THREE
  • PART FOUR
    • Section XII. FEATURES OF LABOR REGULATION OF CERTAIN CATEGORIES OF EMPLOYEES
      • Chapter 40. GENERAL PROVISIONS
      • Chapter 41
      • Chapter 42
      • Chapter 43
      • Chapter 44
      • Chapter 45
      • Chapter 46
      • Chapter 47
      • Chapter 48
      • Chapter 48.1. PECULIARITIES OF LABOR REGULATION OF PERSONS WORKING FOR EMPLOYERS - SMALL BUSINESS ENTITIES, RELATED TO MICRO-ENTERPRISES (introduced by Federal Law of 03.07.2016 N 348-FZ)
      • Chapter 49
      • Chapter 49.1. FEATURES OF REGULATION OF THE LABOR OF REMOTE WORKERS (introduced by the Federal Law of 05.04.2013 N 60-FZ)
      • Chapter 50
      • Chapter 50.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES WHO ARE FOREIGN CITIZENS OR STATELESS PERSONS (introduced by Federal Law No. 409-FZ of December 1, 2014)
      • Chapter 51
      • Chapter 51.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES EMPLOYED IN UNDERGROUND WORKS (introduced by Federal Law No. 353-FZ of November 30, 2011)
      • Chapter 52
      • CHAPTER 52.1. PECULIARITIES OF REGULATION OF THE LABOR OF SCIENTIFIC WORKERS, HEADS OF SCIENTIFIC ORGANIZATIONS AND THEIR DEPUTIES (introduced by Federal Law No. 443-FZ of December 22, 2014)
      • Chapter 53.1. PECULIARITIES OF REGULATION OF THE LABOR OF EMPLOYEES SENT TEMPORARYLY BY THE EMPLOYER TO OTHER INDIVIDUALS OR LEGAL ENTITIES UNDER THE LABOR AGREEMENT FOR EMPLOYEES (STAFF) (introduced by Federal Law No. 116-FZ of 05.05.2014)
      • Chapter 54
      • Chapter 54.1. PECULIARITIES OF LABOR REGULATION OF ATHLETES AND COACHES (introduced by Federal Law No. 13-FZ of February 28, 2008)
      • Chapter 55
  • PART FIVE
  • PART SIX

    • 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)

    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 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 norms of labor law, 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 if another employee is not invited in writing to take his place, who, in accordance with this Code and other federal laws may not be denied the conclusion of 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 must extradite work book to the employee or provide information about 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.

    Early termination of a fixed-term contract

    Urgent labor. an agreement is an agreement between an employee and an employer concluded for a certain period of time (for example, for six months). After the expiration of the period specified in the agreement, the contract is terminated or, if the employment relationship continues, it is transformed into an indefinite one. A fixed-term contract can be terminated for the same reasons as a regular contract before its validity period ends. So, the fixed-term contract is terminated ahead of schedule:

    • by agreement of the parties (Article 78 of the Labor Code of the Russian Federation);
    • due to circumstances beyond anyone's control (for example, conscription of an employee into the army) (Article 83 of the Labor Code of the Russian Federation);
    • at the employee's own request (Article 80 of the Labor Code of the Russian Federation);
    The deadline for filing an application for leaving on one's own initiative for a conscripted employee depends on the period for which his contract was concluded. So, if a fixed-term contract was signed for seasonal work or work lasting up to 2 months, then an application must be submitted at least 3 calendar days before the date of departure (Article 292 of the Labor Code of the Russian Federation). If the term of the contract is more than 2 months, then according to Art. 80 of the Labor Code of the Russian Federation, an application is submitted no later than 2 weeks in advance, that is, on the same date as when terminating ordinary work. contracts. When leaving by agreement with the management or due to unexpected circumstances, the employee may not work out the 3-day or 2-week period prescribed by law. But only if he reaches an agreement with the management or presents a document confirming the need to urgently quit (a summons to the army, a document on transferring a spouse to another city or sending him to study, etc.). Early dismissal of a temporary employee is processed in the usual manner. According to the general rules, the final cash settlement is also made. Temporary employees are also compensated for unused vacation. Moreover, for an employee with whom the contract was signed for less than 2 months or for a season, the calculation of paid leave is carried out according to the scheme: 2 working days for each month (Article 291 and Article 295 of the Labor Code of the Russian Federation).

    Dismissal of a remote employee due to retirement

    Part 1 Art. 80 of the Labor Code of the Russian Federation gives employees the right to terminate labor. agreement of their intention, notifying the management of this at least 2 weeks in advance. In this case, a different notice period may be established by the Code or the Federal Law. The countdown of 2 weeks begins the next day after the manager receives the letter of resignation. There is a general rule that you can quit without working off only with the consent of the employer. However, there are exceptions to the rule - special circumstances provided for in part 3 of article 80 of the Labor Code of the Russian Federation. So, if the dismissal of an employee occurs due to the inability to work further for objective reasons, then the employer must dismiss him within the period that the employee writes in the application. Part 3 of Article 80 of the Labor Code of the Russian Federation includes the following grounds for dismissal without working off:

    • documented valid reason for termination of employment - retirement, enrollment in a university, conscription, etc. (the list is not closed);
    • proven violation by the employer of the provisions of the Labor Code of the Russian Federation, norms. acts or contracts with employees.
    Retirement is a special circumstance in connection with which an employee can put any date suitable for himself in the letter of resignation on his own initiative. At the same time, judges, considering disputes, clarify that the right of a pensioner to be dismissed at a convenient time does not depend on the immediate moment of retirement (Court ruling of 08.12.2010 N 33-38420). An employee can take the opportunity to leave immediately after retirement, or work for some time after retirement, and then quit without working for 2 weeks. That is, part 3 of article 80 of the Labor Code of the Russian Federation establishes a guaranteed opportunity for retired workers to go on vacation at a convenient time. But does the fact that he is a remote worker matter when dismissing an employee of retirement age? First, let's define remote work. According to Article 312.1 of the Labor Code of the Russian Federation, this is the fulfillment of duties prescribed in the employment contract outside the workplace when interacting with management through means of communication (telephone, Internet). Work is done with remote employees. contracts that spell out their working conditions. The effect of labor law in full extends to remote workers. Art. 3 of the Labor Code of the Russian Federation indicates the unacceptability of labor restrictions. rights and freedoms of employees due to circumstances not related to their business skills and qualities. Therefore, the fact that a pensioner works remotely cannot affect his right to quit at a convenient time. Labor employees. remote work contracts have the same rights and obligations as full-time employees. The dismissal of a remote employee upon retirement must be formalized by the management within the time period specified by the retiree in the application.

    Labor Code, N 197-FZ | Art. 80 of the 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) (current version)

    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 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 norms of labor law, 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 issue a work book to the employee or provide information about labor activity (Article 66.1 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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    Commentary on Art. 80 of the Labor Code of the Russian Federation

    1. Article 80 establishes the general (uniform) procedure and conditions for terminating, on the initiative of the employee, both a fixed-term employment contract and an employment contract concluded for an indefinite period. Thus, the possibility of terminating an employment contract before its expiration at the initiative of the employee is not related to the presence of good reasons for him. 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 two weeks in advance. The head of the organization is obliged to warn the employer (the owner of the property of the organization or his representative) in writing about the early termination of the employment contract no later than one month in advance (see comments to Article 280). An employee who has concluded an employment contract for a period of up to two months, as well as an employee engaged in seasonal work, must notify the employer in writing of the early termination of the employment contract three calendar days in advance (see comments to Articles 292, 296).

    2. The written form of the application for dismissal is obligatory. 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. The obligation of the employee stipulated by the Labor Code to notify the employer of the termination of the employment contract at his own request no later than two weeks in advance (the head of the organization - one month in advance) means that he can do this for a longer period. Two weeks (month) is the minimum period for which the employee is obliged to notify the employer of the desire to terminate the employment relationship. The notice period begins the day after the employer receives the employee's application for dismissal. So, if the employee submitted a letter of resignation on June 1, then the two-week period expires on June 15. This day will be the last day of work (the day of dismissal) (see comments to Article 84.1).

    3. In accordance with part 2 of the commented article, 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 Art. 77 TK. Termination of an employment contract by agreement of the parties is possible only when the consent of the employer to the dismissal has legal significance and without such consent the employment contract cannot be terminated (see comments to Article 78). In the case when the employee himself expressed a desire to terminate the employment relationship and asks to dismiss him before the expiration of the established notice period, the consent of the employer to the very termination of the employment contract has no legal significance. It matters only for determining the specific date of dismissal, because. the employee asks to be dismissed before the expiration of the period established for the notice of dismissal at his own request. If the parties have agreed to terminate the employment contract before the expiration of the established notice period, the employment contract is terminated on the basis of paragraph 3 of Art. 77 Labor Code on the day determined by the parties.

    The agreement of the parties on early (before the expiration of the two-week period) termination of the employment contract must be expressed in writing, for example, in the form of an employer's resolution on the application of the employee who applied for dismissal from a specific date. A verbal agreement between the parties cannot be evidence of such an agreement. Judicial practice also testifies to this. Thus, the Supreme Court of the Republic of Buryatia rightfully declared unfounded the decision of the Railway Court, which refused c. L. was reinstated at work, pointing out that in L.'s application there is no employer's resolution that would confirm his consent to terminate the employment contract before the expiration of the notice of dismissal. Therefore, on the basis of this statement, it cannot be concluded that there was a bilateral agreement to terminate the employment contract before the expiration of the notice of dismissal (Review of the cassation practice in civil cases of the Supreme Court of the Republic of Buryatia for 12 months 2006 of 10/19/2007).

    If the employer has not agreed to terminate the employment contract before the expiration of the warning period, the employee is obliged to work for the established period. Early termination of work in this case is a violation of labor discipline. Termination of work without notice of dismissal will also be a violation of labor discipline. An employee who arbitrarily left work may be dismissed for absenteeism. In turn, the employer does not have the right to dismiss the employee before the expiration of two weeks after the filing of an application for termination of the employment contract, if the application does not indicate the date of dismissal, or before the expiration of the period specified in the application. During the entire period of warning, the employee retains his workplace (position).

    4. If the employee's application for dismissal of his own free will is due to the impossibility of continuing his work (enrollment in an educational institution, retirement, sending a husband (wife) to work abroad, to a new place of service, and other cases), the employer is obliged to terminate the employment contract in the period specified in the employee's application.

    The same obligation arises for the employer also 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. At the same time, it must be borne in mind that these violations can be established, in particular, by bodies exercising state supervision and control over compliance with labor legislation, trade unions, commissions on labor disputes, the court (paragraph 22 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

    Judicial practice under article 80 of the Labor Code of the Russian Federation:

    • Decision of the Supreme Court: Definition N 20-KG17-7, Judicial Collegium for Civil Cases, cassation

      Part 4 of Article 80 of the Labor Code of the Russian Federation provides that before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time ...

    • Decision of the Supreme Court: Determination N 78-KG14-12, Judicial Collegium for Civil Cases, cassation

      Meanwhile, the Judicial Board finds the plaintiff's arguments erroneous, based on the incorrect application of substantive law, and the court's conclusions are relevant to the circumstances of the case and the provisions of paragraph 3 of the first part of Article 77, Article 80 of the Labor Code of the Russian Federation. According to paragraph 3 of part one of Article 77 of the Labor Code of the Russian Federation, the basis for terminating an employment contract is the termination of an employment contract at the initiative of an employee ...

    • Decision of the Supreme Court: Determination N 5-KG13-155, Judicial Collegium for Civil Cases, cassation

      Termination of an employment contract at one's own will (Article 80 of the Labor Code of the Russian Federation) is the realization of the right guaranteed to the employee to free choice of labor and does not depend on the will of the employer ...

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