Termination of the employment contract n 3 st 77 of the LC RF: dismissal at will

Leaving work "on one's own" is the most common reason for dismissal. There are two interesting points:

1. Very often there are situations when an employee is simply forced to write a statement at his own request, so as not to have any legal proceedings in the future.
2. Cases of "improper dismissal" are common.

The first point will be discussed in more detail later. As for the second, the main reason is the incorrect application of certain provisions of the Labor Code.

The "right" article

Despite the basic basic principles of regulatory legal acts, namely - "absolute clarity in the wording", very often there is a misunderstanding. Which article should be fired? P. 3 of Art. 77 or art. 80 TC RF?

But in fact there is no problem in understanding. One is considered procedural (as it is legally correct to change work), and item 3 of Art. 77 TC RF - normative, i.e. Indicates the very fact.

Almost everyone knows that you need to work 2 weeks before you leave the organization. Immediately explain one very important nuance.

Dismissal (paragraph 3 of Article 77 of the RF Customs Code) does not envisage any workings.

It is only necessary to warn the employer not later than this deadline. Of course, during this period you will have to perform your functions at the enterprise. Hence the erroneous opinion. But we will clarify that the compulsory work of a fortnight is not necessary.

You can go on sick leave or leave, warning about the future dismissal of the employer. In this case, there can be no work off.

P.3 Art. 77 of the Labor Code of the Russian Federation: a record in the workbook

The most common mistake is an incorrect entry. Very often, clerks incorrectly indicate an article in the workbook. After that, many former employees face a problem during a new job placement or when applying for a pension. Clerks put the mark "dismissed on the basis of Art. 80 of the LC RF ".

But the law does not provide for the termination of duties on the basis of this article. It is important to see the order to terminate the contract. If it is based on the same article, then legally the employee is not dismissed, because The lawful procedure is not observed.

Hence the problem for a former employee: he can not be taken to a new position. It is necessary to contact the former organization for correction. In the document there should be a record: point 3 of Art. 77 of the Labor Code of the Russian Federation (termination of an employment contract at the initiative of the employee).

But let's move on to another common mistake.

P. 3 of Art. 77 of the Labor Code of the Russian Federation: entry in the workplace. Sample Writing

Often, clerks and directors are faced with a similar problem. The article seems to be specified exactly, but the record is still invalid. The fact is that the formulation is the following: "P. 3 tbsp. 77, dismissal at will. "

But according to the rules of filling the record must fully comply with the norms of the Labor Code of the Russian Federation.

Therefore, the sample of writing will look like this: "Fired according to point 3 of Art. 77 TC RF - termination of the employment contract on the initiative of the employee. "

The record radically changes, despite the fact that the main reason remains the same.

Consent of the parties: what is the difference?

There are situations when an employee is forced to write an application for dismissal on his own. The reasons, of course, are purely individual. The new director selects the cadres, the worker has stopped organizing, reorganizing, often forcing pregnant women to do this, etc. In the Labor Code there are two paragraphs of Article 77, which ordinary citizens seem to be equivalent:

• By agreement.
• At will.

Many professional lawyers dealing with labor disputes know that the termination of the contract in the second case can be challenged in court. It is enough to give arguments and prove that the employee was subjected to psychological influence from the administration of the enterprise. Therefore, in court order, the termination order will be annulled, and the employee will be reinstated with all the rights.

Art. 1, Art. 77 TC RF does not provide such a loophole. It just follows from the fact that the employee and the employer have any conflicts and disagreements.

As a rule, the former employee is paid any "compensation" means to peacefully and without consequences for both parties to terminate the employment relationship. In court all arguments will be useless. It is almost impossible to restore labor rights .

How to quit right

To do this, you must notify the employer within 2 weeks. If the relationship is trustworthy, then it can be done orally. But in the event of a conflict, it will be difficult to prove this later in court. Therefore, to avoid misunderstanding, you should write a statement.

Sample Writing

Special requirements and special legal education does not require. You can write the following in the name of the manager: "In accordance with Art. 80 TC RF I ask you to dismiss me from my post. "

Below - the number, signature. From the day the head or other authorized official receives this application, a two-week period will be counted.

Everyone should know this

It is important to know two very important things:

• Normative acts when writing such a statement is optional.
• No one has the right to prohibit resigning at will.

Do not sign the application. What to do?

It is quite common practice when a person wants to change a company for one reason or another, and he is put into the wheel: "there is no director in place", "let's, I'll sign later", etc. And after a while they refuse to say "there is nobody to work for," "I do not give consent to your dismissal." Some are so dishonorable that you can hear the answer "I have not seen your application" and so on.

To avoid these or other problems, it is enough to do one of two scenarios:

1. Write a written application and register it with the secretary or other authorized person.
2. Send a registered letter.

Faster will be the first option, because The two-week period starts on the day after registration. The employer can not then say that he "did not see and did not know". The duty of the secretary or other authorized person to do so in the shortest time to notify the authorities.

With the option of sending through the service "Russian Post" everything will be a little longer. The two-week period will start on the next day, when the employer received the letter, not from the moment of sending. When the application reaches the addressee, it will be indicated in the notification, which means that the employee will know the exact date of receipt.

After that, the director will have to let go of the employee. P.3 Art. 77 TC RF is obliged to do this.

If you change your mind, what should I do?

Such cases are also frequent. The reasons are different: they did not agree on a new place of work, the director realized that the employee really wants to leave, and improved working conditions and much more.

To cancel an application that has already been submitted, it is necessary to write and also officially register a new one according to all the rules. No matter how good the employee seemed to be, there would be no relations between him and his employers, it is important to know the main rule: the application for refusal of dismissal must be handed in officially, i.e. In writing through a secretary or by mail.

What is it for?

It is not uncommon for an employer not against such dismissal. But he had no reason to do this himself. And then the employee himself brings such an application for dismissal under clause 3 of Art. 77 of the LC RF.

Then after a while the employee says that he changed his mind. Director, knowing the legislation, with joy on his face says that "I understand everything, work on."

After the expiration of a two-week period from the moment of writing the application, the dismissal order is issued in accordance with Clause 3, Article 77 of the RF Labor Code - at will. To go to court is useless. Legally, the director did everything right. Here one of the principles of law worked: "Most moral principles become legal norms, but not all".

If you reject the application at will, there is one very important nuance. If from the moment of the employee's resignation before his refusal another person was sent a written invitation to accept this position, then it will be impossible to cancel it.

Here the law will be on the side of the future worker, i.e. The one who has already been invited. Because Now no one has the right to refuse to take up employment.

Therefore, it is necessary to weigh everything well before writing a statement of dismissal. There are cases when the road is no longer there.

Where to assert labor rights

If during the dismissal procedure or in any other case that occurred during the employment relationship, your rights were violated, then you must defend them in one of the following ways:

• Appeal to the Labor Protection Inspectorate.
• The statement of claim in court.
• Appeal to the prosecutor's office.

A citizen of the Russian Federation whose rights are violated can apply simultaneously to all competent authorities. There is an administrative penalty for the guilty person. But the citizen himself has no right to initiate such a case through the court. This can only be done by either the prosecutor's office or the labor inspectorate. For this, it is necessary to send a complaint to these structures.

In parallel, the employee has the right to file a claim with a court in order to receive compensation for moral damage or any other payment from the employer, if this is provided by law, because This does not provide for administrative sanctions. All the penalties issued by the prosecutor's office will go in favor of the state. Therefore, it is better to apply to the supervisory authorities in order to bring the infringer to justice and to court for moral or other payments.

Cases exempted from workmanship

In the Labor Code, there are reasons that allow an employee to leave earlier than 14 calendar days. Let's say right away that the report starts the day after the notification is given.

These include:

• Study of an employee.
• Mutual agreement.
• Violation of labor rights.
• Other.

With the first two more or less clear. As for the violation of labor rights, it is not the subjective opinion of the employee that is meant. This refers to the official involvement of the employer in responsibility. And it must necessarily concern the employee, who decided to leave before the due.

When will the calculation?

After the official order, all payments for worked time should be made on the day of dismissal. And this is not a "gift" from the company, it is a duty according to the TC. Violation of this rule is an occasion to assert one's rights and apply to the controlling bodies. In addition to the salary, the employee is paid for unused vacation. You can calculate it yourself if you know the average monthly earnings and the exact number of days worked. Payments on it must also be made on the day of the dismissal order.

The only exception to this rule is the payment of a sick leave. From the moment the medical certificate is provided, the accounting department within 10 days recalculates and pays it on the day of salary at the enterprises.

If the employee on the day of calculation is not in place (business trip, vacation, sick leave), then all payments should be made no later than one day after his treatment.