Article 80. Termination employment contract at the initiative of the employee own will)
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.
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 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 labor law, local regulations, the terms of the 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 his place in writing, who, in accordance with this Code and other federal laws cannot refuse 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 must give the employee work book or provide information about labor activity(Article 66.1 of this Code) from this employer, issue other documents related to the 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 Art. 80 Labor Code of the Russian Federation
1. An employment contract - fixed-term or with an indefinite period of validity - may 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 commentary to Art. 280, 292, 296 of the Labor Code).2. Dismissal of an employee of his own free will before the expiration of the notice period is possible both by agreement of the parties, and if there are good reasons (retirement, enrollment in education, etc.), as well as in cases of established violation by the employer of the labor rights of employees (see clause 22 RF PPVS dated March 17, 2004 N 2).3. When an employee withdraws an 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 commentary to Article 64 of the Labor Code). After the expiration of the warning period, 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 commentary to Article 84.1 of the Labor Code) .5. 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.Judicial practice under article 80 of the Labor Code of the Russian Federation
The decision of the Supreme Court of the Russian Federation of 20.08.2002 N GKPI2002-771
Labor Code Russian Federation does not regulate relations on compulsory social insurance, therefore the applicant's arguments about the inconsistency of the provisions of the contested normative acts with Art. 6 of the International Covenant on Economic, Social and Cultural Rights art. Art. , , , of the Labor Code of the Russian Federation and the violation of the applicant's rights to freely dispose of his abilities for work are not based on law.
Determination of the Constitutional Court of the Russian Federation of January 22, 2004 N 11-O
1. In his complaint to the Constitutional Court of the Russian Federation, citizen Yu.V. Rogov asks to recognize as contradicting Article 37 (parts 1, 2 and 3) of the Constitution of the Russian Federation, part three of Article of the Labor Code of the Russian Federation, according to which, in cases of established violation by the employer of laws and other regulatory legal acts containing labor law norms, the terms of a collective agreement, agreement or of the employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee's application.
Determination of the Supreme Court of the Russian Federation of July 28, 2006 N 75-В06-12
By the decision of the Lakhdenpokhsky District Court of the Republic of Karelia dated December 14, 2004, the claims were partially satisfied. The wording of the grounds for G.'s dismissal was changed, entry No. 25 in G.'s work book was declared invalid. The obligation was imposed on the children's music school in Lahdenpokhya to make an entry in its work book about the invalidity of entry No. 25 and the entry "dismissed on September 1, 2004 of her own free will on the basis of Art. Labor Code of the Russian Federation." From the nursery music school Lakhdenpokhya in favor of G. recovered 18,290 rubles. 88 kop. during the delay in issuing a work book, compensation for non-pecuniary damage in the amount of 3,000 rubles., in reimbursement of costs associated with the consideration of the case, 525 rubles. The rest of G.'s claim was denied.
Decision of the Supreme Court of the Russian Federation of November 16, 2006 N GKPI06-1188
As the Applicant points out, paragraph 7.2 of the disputed normative legal act in part of the words: "for good reasons" contradicts the third part of Article of the Labor Code of the Russian Federation.
On August 18, 2005, she addressed the administration kindergarten with a letter of resignation due to moving to permanent residence in the city of Moscow from the moment the application was submitted. The administration refused to terminate the employment contract with her before the expiration of the two-week period.
Determination of the Supreme Court of the Russian Federation dated February 8, 2007 N KAS06-550
Ya. applied to the Supreme Court of the Russian Federation with an application to invalidate clause 7.2 of the Clarification regarding the words "for good reasons". At the same time, the applicant pointed out that this paragraph of the Clarification in the part of the words: “for good reasons” contradicts part three of Article of the Labor Code of the Russian Federation.
Review of judicial practice, Appendix to the letter of the FSS of the Russian Federation dated July 11, 2005 N 02-18 / 07-6203
According to an article of the Labor Code, an employee has the right to terminate an employment contract by notifying the employer in writing two weeks in advance.
By agreement between the employee and the employer, the employment contract may be terminated even before the expiration of the notice of dismissal.
Determination of the Constitutional Court of the Russian Federation of January 25, 2007 N 131-О-О
According to Article 37 (Part 1) of the Constitution of the Russian Federation, labor is free; Everyone has the right to freely dispose of their abilities to work, to choose the type of activity and profession. In accordance with these constitutional provisions, the employee has the right to terminate the employment contract with the employer at any time by notifying him of this in advance in writing. At the same time, the requirement addressed to the employee to warn the employer of his dismissal no later than general rule than two weeks (part one of article 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 of dismissal (if in his place not invited in writing to another employee who cannot be refused to conclude an employment contract) is aimed at protecting the labor rights of the employee.
Determination of the Supreme Court of the Russian Federation of July 28, 2006 N 51-В06-4
Kh. filed a lawsuit against the district administration for reinstatement, recovery wages during forced absenteeism and compensation for non-pecuniary damage. She motivated her demands by the fact that she was dismissed in violation of the procedure established by Art. Labor Code of the Russian Federation.
Determination of the Supreme Court of the Russian Federation of September 29, 2005 N 71-Г05-12
The representative of T., by proxy I., did not agree with B.'s demands, explaining that the applicant did not indicate what the violation of his rights consisted of. G., to whom T. was directly subordinate, has now gone on vacation in connection with his participation in the upcoming elections and the grounds provided for by subparagraph “l” of Part 1 of Art. 29 of the Federal Law "On Basic Guarantees ...", which prevents T. from holding the position of chairman and member of the territorial election commission, has disappeared. In addition, on August 30, 2005, he submitted a letter of resignation from the post of head of the Municipal Unitary Enterprise Zelenogradskaya Chisto from August 31, 2005 in accordance with Part 3 of Art. of the Labor Code of the Russian Federation in connection with earlier violations of labor legislation in relation to him by the head municipality G., but his dismissal was unreasonably denied.
Determination of the Supreme Court of the Russian Federation of September 26, 2008 N 6-В08-12
K.A. filed a lawsuit against the fire brigade N 31 State Fire Service for the protection of p.g.t. Alexander Nevsky State institution of the Ryazan Region "Center for Fire Safety, Civil Defense and Emergencies" on reinstatement, recovery of average earnings for the time of forced absenteeism and compensation for non-pecuniary damage, referring to the fact that he was wrongfully dismissed on the grounds established by the article of the Labor Code of the Russian Federation i.e. voluntarily.
Determination of the Supreme Court of the Russian Federation of July 11, 2008 N 48-В08-6
Meanwhile, this conclusion of the court does not comply with the articles and the Labor Code of the Russian Federation, since on February 9, 2007, at the time of the withdrawal of the letter of resignation, M. continued to work at the same place, the defendant had not yet become obliged to conclude an employment contract with her, in admission to work in the transfer order she could be denied.
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)
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 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 - 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 has warned the employer about 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) to withdraw his application, and dismissal in this case, it is not carried out, provided that another employee is not invited in writing to take his place ... (for more 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 opportunity 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 realization of the right of citizens to free management of one's ability 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 of 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 indicated 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 employment 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 noted earlier, the requirement addressed to the employee to notify the employer of his dismissal, as a general rule, no later than two weeks in advance (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 promptly select a new employee for the vacant position. of the employee, and the right of the employee, enshrined in part four of the same article, to withdraw his application before the expiration of the term of notice of dismissal (unless another employee is invited in writing to take his place, who cannot be refused to conclude an employment contract) is aimed at protecting the labor rights of the employee ( definitions of January 25, 2007 N 131-О-О and of March 22, 2011 N 297-О-О).
As an exception to general rule on the need to work for two weeks from the date of filing a letter of resignation of one's own free will, 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 his work (enrollment in an educational organization, retirement, etc.).
Thus, the challenged 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 (determination of the Constitutional Court of the Russian Federation of 03.07.2014 N 1487-O)
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. 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 settlements with an employee and issuing a work book to him, arguing that the employee did not fill out the so-called bypass sheet, did not pass the material values 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 who is dismissed as a 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 meaning only at the time of expiration. 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.
From this rule one exception is provided 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, KTS, court (subparagraph "b", paragraph 22 of the Decree of the Plenum of the Supreme Court 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 commentary on it), the employee’s refusal to continue work due to a change essential conditions employment contract (see article 74 of the Labor Code and commentary thereto), refusal to transfer to another job in accordance with a medical report, refusal to transfer in connection with the relocation of the employer to another area (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.
Termination of the employment contract at the initiative of the employee (at his own request)
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 notify 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). 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, are required to notify the employer in writing of the early termination of the employment contract three calendar days in advance (see comments to Art.,).
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 labor relation. 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 (day of dismissal) (see).
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. 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. 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 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 notice, the employee retains his workplace(job title).
4. If the employee's application for dismissal of his own free will is due to the impossibility of continuing his work (enrollment in 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 within 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).
5. The need to terminate the employment contract may arise for the employee not only during the period of work, but also during the time when he is absent from work for any reason, for example, during a period of temporary disability, vacation, business trip. In this regard, the question arises whether the employee has the right to apply for dismissal of his own free will at this time and whether it is counted in the notice period for dismissal of his own free will.
The answer to this question follows from the main purpose of the notice of dismissal, namely: to enable the employer to select a new employee to replace the one who leaves on his own initiative. Having warned the employer about the dismissal in advance in writing, the employee provides him with such an opportunity. It does not matter if he is at work, on vacation or sick. The employer has the right to start looking for a new employee from the moment of filing a letter of resignation. Therefore, all this time from the date of filing an application for dismissal of one's own free will is counted in the notice period for dismissal.
If an employee who is on vacation asks to be dismissed during the vacation period and before the expiration of the notice period established by law, and the employer agrees to this, the dismissal is made within the period requested by the employee.
The employer has the right to terminate the employment contract with the employee at the end of the term of notice of dismissal at his own request and in the event that during the period of the notice the employee fell ill and continues to be ill at the end of the notice period, because. the period of illness does not suspend the period after which the employee is subject to dismissal. The dismissal of an employee of his own free will in accordance with his application is also possible during a period of temporary disability, because. The initiative to terminate comes from the employee, not from the employer.
6. Submission by an employee of an application for termination of an employment contract of his own free will is not always the actual desire of the employee to terminate the employment relationship.
The Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 clarifies 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 submit a letter of resignation of his own free will, then these circumstances are subject to verification, and the obligation to prove them lies with the employee (subparagraph "a", paragraph 22). At the same time, any pressure from the employer, incl. and the threat to fire him on his own initiative in cases where the employer had any reason to do so. Otherwise, it is impossible to talk about the termination of the employment contract at the initiative of the employee. This conclusion was rightly made by the Laginsky District Court of Elista, satisfying the claim for the reinstatement of c. U., who filed a letter of resignation of her own free will under pressure from her manager, who threatened her to “spoil her work book”, dismissing her “under the article” for losing a report and failing to submit it (see Review of the judicial practice of the Supreme Court of the Republic of Kalmykia on the consideration of civil cases in cassation and supervisory procedure in 2006).
7. In accordance with part 4 of the commented article, an employee who has warned the employer about the termination of the employment contract of his own free will has the right to withdraw his application before the expiration of the warning period (and in case of granting leave with subsequent dismissal - before the day the vacation begins) and dismissal in this case is not performed, provided that another employee is not invited to his place in writing, who, in accordance with the Labor Code and other federal laws, cannot be refused to conclude an employment contract (subparagraph "c", paragraph 22 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 17.03. 2004 No. 2). For example, an employee who has submitted a letter of resignation of his own free will cannot withdraw his application if another employee is invited to his workplace (position) in the order of transfer from another organization in agreement with the heads of these organizations, because in accordance with such an employee cannot be refused to conclude an employment contract within a month from the date of dismissal from former place work (see commentary to Art. 64).
8. After the expiration of the term of notice of dismissal of his own free will, the employer has no right to detain the employee. No reasons (monetary debt, the need to complete the work begun, material values \u200b\u200bhave not been handed over, the hostel has not been vacated, etc.) can serve as a basis for this. On the day of dismissal - the last day of work - the employer is obliged to issue him a work book with a record of dismissal made in it, other documents at the written request of the employee and make settlements with him. On this day, the employee may be released from work for the time necessary to receive the calculation and work book, if for objective reasons he cannot do this at the end of the working day (shift). If the employee is absent from work on the day of dismissal, then the employer must send him a notice on the same day about the need to appear for a work book or agree to send it by mail. Sending a work book by mail with delivery to the specified address is allowed only with the consent of the employee (clause 36 of the Rules for the maintenance and storage of work books) (see comments to article 84.1).
In the event that the employer did not dismiss the employee after the expiration of the warning period, the employee has the right not to go to work.
9. If, after the expiration of the notice period, the employment contract is not terminated and the employee does not insist on dismissal, the validity of the employment contract is considered continued. At the same time, no additional agreements are required in this regard.
Assigning to the employee the right to terminate the employment contract on his own initiative at any time, Art. 80 does not oblige the employee, upon dismissal of his own free will, to indicate in the application the reason why he wants to terminate the employment contract. But if the provision of certain benefits or guarantees to the employee depends on the reason for dismissal in accordance with the law, then such a reason should be indicated in the application.
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.
(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.
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.
(as amended by Federal Laws No. 90-FZ of 30.06.2006, No. 185-FZ of 02.07.2013)
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.
