Termination of an employment contract at the initiative of the employee
Article 37 of the Constitution of the Russian Federation explains that workers have freedom of choice of work activity and the right to perform work in the desired place and institution. Articles 77 and 80 of the Labor Code of the Russian Federation state that the manager does not have the right to retain an employee without his consent and without good reason. Detailed explanation in letter No. 1551-6 from Rostrud dated September 5, 2006.
Before resigning, an employee of an organization must notify the director of his resignation 14 days in advance. Notification is allowed in several ways:
- In person, with presentation of your resignation document.
- By internal email with an electronic signature.
- By mail. By registered mail.
When sent by post, the time for calculating the work starts from the date that will be indicated upon receipt by the boss, and not from the date of dispatch.
After the application is accepted, the manager is obliged to sign it and in no way interfere with further two-week work. The worker must perform his work conscientiously during this time. After completion of work, management issues a work book and full payment without any hindrance.
Read: What to do if the employer does not sign the resignation letter.
Dismissal without service is possible in several cases:
- While going on vacation, a resignation document was signed. Vacation lasts at least 14 days, which means this time is considered as worked and you don’t have to go to the workplace after your vacation.
- During sick leave. If 2 weeks have passed since the application was recorded, and the employee is on sick leave, then work is not required.
Unscrupulous bosses refuse to terminate a contract without any particular reason. It is illegal. If management refuses to record the resignation letter, it must be sent by registered mail. When sent, there will be a notification of receipt, and this is considered conclusive evidence in court about the receipt of the resignation letter.
In order not to let employees go, management goes to extreme measures and does not hand over the work book or paycheck. In such cases, those leaving are interested in the question: where to complain.
In cases where the employer does not dismiss workers at their own request, they must file a complaint with:
- Labor inspection.
- The prosecutor's office.
- Court.
When filing an application with the court, it is possible to demand compensation for moral damage, citing the fact that the work permit was not received on time and there was no opportunity to find a new job.
The procedure for dismissal at will
If an employee needs to quit his job, he can do this at any time without giving reasons for his decision. And the employer has no right to interfere with this. But the employee must do this correctly so that problems do not arise later. Since not all employers say goodbye to their employees peacefully and quickly. Any dismissal consists of three main stages:
- Providing a written statement at work about your intention to quit.
- Work for fourteen days, which is counted from the moment the application is submitted.
- Obtaining a work book and cash payment.
Therefore, first of all, you need to write a letter of resignation, in which the employee indicates that he is doing this of his own free will. It is best not to give it to the employer, but to take it yourself to the HR department. Moreover, such a statement should be written in two copies and each of them should bear the stamp, date and signature of the person who accepted it. Or you can simply make a copy of the application, but in this case, the HR department must also put an acceptance mark on it.
There are situations when it is not possible to deliver the application yourself, or they simply do not want to accept it, in this case you can proceed as follows:
- Send the application by mail and do it by registered mail with acknowledgment of receipt and a list of the contents. In this case, the employee will have a receipt confirming the sending of the letter and a signed postal notification.
- Send a telegram with acknowledgment of delivery.
- Submit an application through a notary.
In these cases, two weeks of work must be counted not from the moment the application was submitted, but from the time it reached the addressee.
But even after the employee has submitted an application and worked for two weeks, there are cases when the director does not fire him of his own free will. If you cannot quit peacefully, then you need to resort to extreme measures.
Reasons for refusing dismissal
Employers do not want to fire at will due to a number of reasons:
- highly qualified employee;
- A big waste of time looking for a new employee.
Sometimes, when managers do not allow you to quit, you can try to come to an agreement with them:
- specifically explain the reason for leaving;
- try to select a qualified replacement employee yourself;
- agree to stay a little longer.
Term
Compliance with legal deadlines is one of the main points in terminating a contract, since the legislator strictly outlines the days that the employee must work, and after which all monetary compensation must be transferred to the financial account of the dismissed person.
So, according to the general rule, the employee undertakes to provide the company administration with a statement of his desire to terminate the contract at least 14 days before his final departure. The specified period of time may be longer due to special circumstances. In particular, this does not apply to personal delivery of a petition to terminate an employment agreement, but to sending it to the employer by mail. In this case, the countdown of the two-week period will begin on the next day after the manager receives the letter. Also, in order to avoid inaccuracies and possible disputes, it is necessary to indicate in the application not a specific date, but a legal fact after which the agreement will be terminated.
Important! Internal documents may establish a different notice period for the employee about dismissal. But a person is warned about this during employment, and this is also directly stated in the contract.
An exception to this rule is situations when the employee desires to terminate the employment agreement during the probationary period. In this case, the employer's notice must be complied with three days before the final termination of the agreement.
Penalties
- Calculation of compensation for unused vacation upon dismissal
If the manager is proven guilty of unlawfully obstructing dismissal, failure to issue required documentation and full payment to the employee, the manager may be held accountable by paying an amount equal to the salary for the period of time while he had the documentation and a fine of 20 thousand rubles.
The legislative framework
Before considering the question of whether an employer has the right to oppose the dismissal of an employee at his own request, you need to take a closer look at the legislation that governs this issue.
Knowing the relevant legal norms, both the employer and the employee will be able to protect their own interests in unexpected situations.
Refusal to dismiss at one's own request is regulated by the following norms of legal acts:
- Article 37 of the Constitution of the Russian Federation. This norm affirms the human right to free work and the prohibition of forced labor. Consequently, barriers to voluntary care clearly violate the plot of this article. However, the Constitution does not contain established legal rules regulating this issue, but only the general rights of the employee,
- Article 71 of the Labor Code of the Russian Federation. It regulates the establishment of a probationary period, and also contains some features of voluntary dismissal during this period,
- Article 77 of the Labor Code. The plot of this article establishes the general principles of dismissal of employees and termination of employment contracts,
- Article 80 of the Labor Code. This rule of law regulates the dismissal of a working citizen at his request. At the same time, the employer’s refusal to dismiss at his own request is not provided for.
Is it possible to take sick leave after dismissal?
The above-mentioned rules of law regulate to a greater extent the general principles of dismissing employees at their request. The head of the organization can regulate this process within the framework of his powers, using local acts, if such actions do not worsen the interests of employees in this area of labor relations.
Management Notice
If an employee decides to leave work, he has the right to do so at any time, without explaining his own decision. All he has to do is file a letter of resignation.
The employee is obliged to notify the manager in advance of his desire to terminate the employment contract. This is done through a resignation letter, which should be submitted two weeks before the expected date of actual departure from work.
If the employee is on a probationary period, the application must be submitted three days in advance. This time is allotted for preparing the necessary documents, orders and searching for another employee for the vacant position.
In addition, this period is given to the employee to weigh his decision about leaving work.
If the established date of dismissal occurs before the end of the period established by law, then the employer has the right to refuse the employee.
Deadline for issuing a work book upon dismissal.
Under what circumstances can an employee be deprived of a bonus, read here.
How to cancel a dismissal order, read the link: https://novocom.org/dokumenty/prikazy/prikaz-ob-otmene-prikaza-ob-uvolnenii.html
Drawing up an application
applications for resignation of one's own free will in word format
There are several rules that are important to follow when writing a resignation letter:
- the application can be typed on a computer or written by hand on an A4 piece of paper,
- “cap” is written at the top of the sheet. Here you need to indicate the full name and position of the person to whom the document is addressed (usually the director), and the full name and position of the applicant (employee),
- in the middle is the title “Statement”,
- after which the text of the statement is given in free form. Here you should indicate the reason for leaving your job. In case of dismissal at your own request, you can simply indicate one phrase “at your own request.” In addition, it is advisable to set a date of dismissal. When calculating it, you should take into account the deadlines established in the Labor Code. It is worth paying attention to this detail, since if the date is not entered, the manager will calculate it independently, and it may not coincide with the date expected by the employee,
- After the contents of the application, the date of its writing and a signature with a transcript should be indicated. The document must be signed personally.
Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.
Working off
Work off is not a prerequisite and is assigned only at the initiative of the manager. If the employer insists on the need for two-week work, then the employee must obey and during this period responsibly fulfill his obligations, in particular - prepare all the necessary documents for subsequent transfer, hand over all the employer’s property provided for work, and inform trainees.
During the work period, the manager may impose additional requirements on the employee, but they cannot become a reason for refusal to leave the place of work. The requirement to completely complete the entire range of tasks and only then leave is unlawful.
It will be possible to resign without work if there is an agreement with the manager. Intentional failure to complete work may be classified as a disciplinary offense (absenteeism), which will enable the employer to dismiss the employee under another article.
Watch the video. Dismissal at your own request:
What can an employer do?
According to labor law, the employer does not have the right to prevent the dismissal of an employee on his own initiative; such a refusal is not permitted.
What to do if your employer forces you to work on weekends?
However, in certain situations, generally accepted rules diverge from law enforcement practice, and some employees face obstacles placed by the organization’s management to an employee who wants to leave.
There are two common methods used by employers to refuse dismissal:
- refusal to accept a resignation letter,
- evasion of transfer of payment documents.
An application to terminate an employment contract drawn up by an employee is the only legal basis for terminating the contract with the employer. And it is with the transfer of such a document to the management of the company that the procedure for leaving work begins, and the countdown of the working time begins.
Therefore, it is necessary to record the moment the application was received by the organization’s management.
Remember! Evasion from transferring payment documents is a financially punishable act. For example, managers often simply “overwhelm” employees intending to leave with additional tasks in order to delay the return of the employer’s tools or documents.
There is a legal mechanism to protect against such a situation, which is that the employee can stop working after the expiration of the two-week period, regardless of the fact that all cases have been submitted.
The manager must, within the time limits established by law, hand over to the employee the financial payments and work book due to him. For every day of delay, the employee is entitled to monetary compensation in the amount of average income.
Often, in order to retain an employee, company management tries to increase the scope of a citizen’s job responsibilities, thinking that if during the work period the employee fails to cope with such a volume of tasks, then he can continue to be used in the activity until all tasks are completed.
This is a big mistake, because additional job tasks are not a reason to extend work against the employee’s wishes.
But the employee must also know that while the work period continues, he must fulfill his own duties in full and with the highest quality possible. In another situation, he may be subject to disciplinary measures.
Malicious violations may serve as grounds for termination of an employment contract not at the request of the employee, but due to a disciplinary violation.
What should an employee do?
If an employee is not allowed to resign of his own free will, and the employee himself fully complies with the requirements of the law, then such actions of the employer are unlawful.
At the same time, judicial practice in disputes regarding refusal of dismissal indicates full acceptance of the side of working citizens by the courts. They, as a rule, satisfy claims on this issue in full.
To avoid potential difficulties, an employee who has received information about a refusal to dismiss must follow clear instructions.
When submitting a resignation letter of your own free will, you should check the availability of documents that can confirm the fact of the employer’s refusal. An employee may demand that the management of the organization or office record the fact of receipt of documents.
Another way to receive supporting documents is to send documentation via mail with a list of the contents and a receipt.
However, in such a situation, the time period of work will be counted from the moment of actual transfer of documents to the employer.
There are a number of circumstances under which you can leave your job without working off. For example, in the event of an employer violating the rights of an employee as set forth in Article 80 of the Labor Code of the Russian Federation.
In addition, short-term employment agreements, as well as probationary periods, may have shorter work periods.
Note! An employee's stay in hospital or on vacation does not deprive him of the opportunity to resign. The working time will be calculated without stopping and during such periods. Consequently, the manager does not have the right to prevent voluntary dismissal by pointing out the employee’s vacation or period of incapacity for work.
