Sample notice of dismissal of an employee 2021

Termination of a contract with workers occurs by decision of the employee himself, on the initiative of the employer, or by general agreement of the participants in legal relations. A notice of dismissal is issued if the contract is terminated unilaterally at the request of the company administration. The absence of a warning is a violation of the procedure, which may become the reason for the cancellation of such a decision and the basis for the forced reinstatement of a dismissed citizen in the service with the subsequent payment of monetary compensation for forced downtime.

What is a notice of termination?

This document is a letter addressed to an employee of the organization.
It must contain information about the reasons for termination of the employment relationship, the procedure for compensating unused vacation days and other nuances. The notice of dismissal of an employee must be handed over to an employee of the human resources department or the person responsible for personnel records management. The document must be registered in the notification log. The notice must be given to the employee personally. He must put his signature and date on it, thereby confirming the fact of familiarization with the document. If for some reason the employer is unable to deliver the document to the employee in person, he can send it by registered mail with notification. The recipient's signature in the notification will further serve as confirmation of receipt and familiarization with the registered letter.

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A situation may arise when an employee refuses to sign a document. In this case, the employer must draw up a notice of refusal. It must be signed by the person serving the notice of dismissal and by any witnesses.

An employee is not recommended to refuse to serve a notice, as it can become important evidence in legal disputes with the employer. It can be used to protect labor rights by assessing the employer’s actions for compliance with the labor legislation of the Russian Federation. A sample notice of dismissal will be presented below.

Requirements for storage periods and rules

As soon as an employee is fired, the notice must be attached to his personal file, which is located in the company archives. The storage period depends on legal requirements and information that is recorded by local acts of the organization. Proper storage allows the business manager to protect himself from future litigation if the fired employee wants to hold the former employer accountable for any trumped-up violations.

Typically, the document is stored for 3 years, but this period can be increased by decision of the company management . Once a notice is no longer valid, it should be disposed of in the standard manner. If, within three years, legal proceedings are initiated or a dismissed employee writes a complaint to the labor inspectorate, then the documentation will act as proof of the correctness and legality of the employer’s actions.

Notice period for dismissal at the initiative of the employer

If a company or individual entrepreneur decides to dismiss an employee, then in certain cases they must inform him about this in advance in writing against signature. There is no single notice period, since it depends on the reason for termination of the employment contract:

if a staff reduction is being prepared, the affected employees are notified of the upcoming dismissal at least two months in advance (Article 180 of the Labor Code);
if a seasonal employee is laid off or fired due to the liquidation of an enterprise, he must be notified of this at least a week in advance (Article 296 of the Labor Code);
if an employee worked under a fixed-term contract and the employer does not intend to renew it, the employee is informed about this three days in advance, not working days, but calendar days (Article 79 of the Labor Code);
if a subordinate does not pass the test during the probationary period and it is decided to dismiss him, the employer must give written notice to the employee also three calendar days in advance (Article 71 of the Labor Code).

If the dismissal is related to the liquidation of the company (termination of individual entrepreneurs) or reduction of employees, you should report it to:

to the employment service:
no later than two months, if the employer is an organization;
no later than two weeks, if the employer is an individual entrepreneur (Article 25 of the Law “On Employment” No. 1032-1 of 04/19/1991);

to the trade union body, if there is one at the enterprise, no later than two months (Article 82 of the Labor Code).

If workers are threatened with mass dismissal, the notification period for trade unions and the employment service is increased to three months before the start of the procedure.

1) mandatory notification by the employee to the employer of the desire to terminate the contract;

2) the absence of a defect of will in the employee;

3) the employer provides the employee with the opportunity to change his mind, that is, to withdraw the application.

As an analysis of judicial practice shows, compliance with these requirements is one way or another put up for discussion, and if any of them “falls out,” the dismissal will be considered invalid.

1. The employee has been granted leave with subsequent dismissal - the recall must take place before the start date of the leave (Part 4 of Article 127 of the Labor Code of the Russian Federation).

2. An employee who cannot be refused employment under the law is invited to the vacant position in writing. The latter is very important - refusal must be prohibited by law. Thus, the Primorsky Regional Court recognized the dismissal as unlawful, since the employee withdrew his application, and the other employee, even if invited in writing by way of transfer, had not yet been dismissed from his previous place of work (Appeal ruling dated May 30, 2017 in case No. 33-5276/ 2017).

1. A special document - an application: it can be written by hand or printed on a printer (typewritten). It is also possible for the employee to fill out a special form prepared by the employer. In the latter case, it is advisable to leave more space for handwritten text, so that in case of disputes there is an opportunity to have the handwriting examined. The application must be signed by the employee.

2. In the form of a telegram or by fax.

A telegram to the employer with the text of dismissal must be certified by postal workers with the affixing o and “I certify the handwritten signature ... (full name of the person resigning). ... (position of postal worker, surname)” (clauses 108, 114 of the Requirements for the provision of telegraph communication services). But there are also cases when an uncertified telegram has the force of a statement (more on this below).

3. In the form of an electronic document, including by email.

As a rule, this form is provided for remote workers. In this case, the application is certified by the employee’s electronic signature - only then is it equivalent to a regular written one. For example, the Moscow City Court declared illegal the dismissal of an employee based on an application by e-mail, since this method does not guarantee that the author of the sent document was the employee, therefore, the employer did not have a written application (Appeal ruling dated 06.06.

The opposite practice also occurs, especially if the parties have established a certain algorithm for exchanging documents and there is no doubt about the sender. Thus, the employee challenged the legality of his voluntary dismissal, citing the fact that the application he sent by email was not signed with an electronic signature.

How to inform if a fired person is absent from work

The dismissal order requires mandatory review and signature of the employee.

If the latter does not come for the paycheck and documents on the day of dismissal, the employer sends him a written notice of the need to come to the employer to get a work book and familiarize himself with the order.

This indicates that the company notified the employee of the settlement.

In such circumstances, a special mark is placed on the order, indicating that it is impossible to familiarize the employee with the order due to his absence.

The employer must personally familiarize the employee with the dismissal order. Therefore, if he does not appear on the day of settlement and does not sign the order, a corresponding entry is made in it.

Orders regarding personnel are not signed by proxy, since they concern the employee personally. The actions of a trusted person can always be challenged.

Therefore, the option of entrusting the right to sign a dismissal order to another person does not work.

According to the law, an employee’s refusal to sign an order cannot serve as an obstacle to its execution.

When an employee refuses to affix his visa, the personnel officer will affix o.

At the same time, labor legislation requires in such circumstances to additionally draw up an act of refusal.

The law does not provide for mandatory service upon dismissal

1. Circumstances have arisen in which it is impossible to continue working (moving to another area, conscription into the army, enrollment in an educational organization, retirement, etc.).

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The list of these circumstances is in the Labor Code of the Russian Federation, it is open, that is, the parties themselves can assess the “respectfulness” of a particular circumstance. Most often, retired workers try to take advantage of this reason, but the “benefit” is provided only once - during retirement. The “current” pensioner will have to resign in the general manner, since it is impossible to retire again (appeal rulings of the Khabarovsk Regional Court dated July 7, 2017 in case No. 33-5200/2017, Moscow City Court dated July 26, 2017 in case No. 33-29119/2017 ).

2. The employer violated labor legislation, labor regulations, and the terms of the collective and (or) employment contract.

The fact of such a violation must be established by the labor inspectorate, trade union, labor dispute commission or court (clause b, clause 22 of Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2). However, the courts are more loyal in this matter; they can assess the presence of violations based on the evidence presented in the case materials. For example, the fact of the existence of salary arrears can be established on the basis of bank account statements and accounting documentation (see the Appeal ruling of the Moscow City Court dated 08.08.2013 in case No. 11-23649).

If the employee refers in the application to Part 3 of Art. 80 of the Labor Code of the Russian Federation, he is obliged to indicate the reason, otherwise the employer has the right not to dismiss him within the specified period.

Thus, the court rejected the employee’s argument about the employer’s obligation to dismiss him within the period specified in the application, since the application itself did not make reference to the termination of the employment contract specifically in connection with retirement and did not mention the plaintiff as a pensioner at all. The employer cannot, for the employee, speculate on the circumstances of the dismissal and determine its date (Appeal ruling of the Moscow City Court dated November 24, 2014 No. 33-46635/2014).

Sometimes the notice period for dismissal is mistakenly called “working off”, but the law does not provide for any mandatory working off. An employee can submit an application during vacation, while on sick leave, etc., that is, while absent from work. The notice period in this case must be counted, since it is needed to maintain a balance of interests between the employee and the employer - so that the latter can quickly select a replacement for the resigning employee.

Upon expiration of the notice period, the employer is obliged to formalize the dismissal of the employee if the application is not withdrawn (Appeal ruling of the Moscow City Court dated January 10, 2018 in case No. 33-445/2018). Moreover, dismissal is carried out even if the employee is on vacation or on sick leave at that time (Appeal ruling of the Moscow City Court dated August 28.

Rules for filling out the refusal act

In accordance with paragraph 63 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated {amp}lt;date No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” in accordance with Article 237 of the Code, compensation for moral damage is compensated in monetary form in the amount determined by agreement employee and employer, and in the event of a dispute, the fact of causing moral damage to the employee and the amount of compensation are determined by the court, regardless of the property damage to be compensated.

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The amount of compensation for moral damage is determined by the court based on the specific circumstances of each case, taking into account the volume and nature of moral or physical suffering caused to the employee, the degree of guilt of the employer, other noteworthy circumstances, as well as the requirements of reasonableness and fairness.

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Familiarization with the dismissal order

A selection of the most important documents upon request Familiarization with the dismissal order (regulatory acts, forms, articles, expert consultations and much more). Regulatory acts: Familiarization with the order of dismissal “Labor Code of the Russian Federation” dated December 30, 2001 N 197-FZ (as amended on February 5.

The applicant’s position that the employee, as a financially responsible person, failed to fulfill a number of duties, which made it impossible to pay upon dismissal, does not relieve the employer of the obligation to pay wages and other payments due upon dismissal. The applicant’s reference to the impossibility of fulfilling the order is far-fetched, since the labor inspector determined the period during which the employer, in order to comply with the requirements of the Labor Code of the Russian Federation, was obliged to take the necessary actions, sending the employee documents on dismissal for review, a work book, making a settlement with the employee, determining the amount payment taking into account compensation for violation of deadlines and offering the employee a procedure for receiving it.

Attention

The arguments of the appeal that the defendant was not notified of the consideration of the case scheduled for {amp}lt;date cannot be taken into account since they contradict the materials of the case. Thus, from the case materials it is clear that the defendant was duly notified of the consideration of this case by the court of first instance, and repeatedly took part in court hearings of the court of first and appellate instances, (ld.

78, 89, 91 - 93, 97 - 100, 117, 152 - 153, 154), however, he did not appear at the court hearing scheduled for {amp}lt;date, refusing to receive court notice (case file 160 - 160 revolutions). In this situation, the court of first instance, in full accordance with Art. 117 of the Code of Civil Procedure of the Russian Federation considered the case in the absence of the defendant. The appeal does not contain any other arguments. N 4а-340/2014 Deputy Chairman of the Samara Regional Court Shkurov S.I., having considered the supervisory complaint of the representative of the Municipal Unitary Enterprise "A" (MUP "A") FULL NAME1 against the decision of the Bezenchuksky District Court of the Samara Region dated 29.01 .2014 and the decision of the judge of the Samara Regional Court dated 04/01/2014 in the case of an administrative offense under Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, established: By the resolution of the chief state labor inspector of the State Labor Inspectorate dated January 14, 2014, MUP “A” was found guilty of committing an administrative offense under Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, and was subjected to administrative punishment in the form of a fine in the amount of 50,000 rubles for violation of labor and labor protection legislation.

Refers to the fact that a number of duties specified in the order cannot be fulfilled due to the passage of time, which was not taken into account, to the fact that the applicant’s guilt as an employer was not established in the framework of the administrative proceedings, and therefore there were no grounds for issuing disputed there were no acts. The applicant did not appear at the court hearing of the appellate instance; the representative supported the arguments set out in the complaint.

The representative of the State Labor Inspectorate in the Perm Territory did not appear at the court hearing and was notified of the consideration of the complaint. Interested person G. requested that the complaint be considered without her participation. Having checked the legality of the decision of the court of first instance according to the rules of Part 1 of Art. 327.1 of the Code of Civil Procedure of the Russian Federation, within the limits of the arguments of the complaint, the judicial panel comes to the conclusion that there are no grounds for cancellation.

When filling out, it is fundamentally important to take into account the timing. The more accurately the time is specified, the better. In court, questions will be asked regarding time periods and testimony will be compared. It is also advisable to mention in the text where the order was read (office, HR office, manager’s office, etc.).

“I, the head of the HR department, Vasily Ivanovich Tarasov, in the presence of the cleaner Elena Vitalievna Markova and the manager Ivan Sergeevich Knyazev, have drawn up this act stating that...”

Employees or persons who agreed to record the fact of refusal must also be present in this room and clearly understand that the employee refused to read the order and sign on it. Witnesses must sign to confirm this fact. Only in this case will the act have legal force.

The regulations do not provide a unified form of this document. That is, this form is developed by the organization independently. The type of document may vary depending on the specifics of the company. When drawing up an act, you must rely on the standards contained in GOST R 6.30-2003. You should also pay attention to archival rules.

The act is an information and reference document. It confirms some action or event. The document must indicate various details. This is a must. An act can only be drawn up by a commission, that is, several persons. One manager cannot draw up this paper. The document includes three parts:

Introductory part. Includes the date of preparation, number, link to the document (an order in which the employee does not want to sign). The composition of the commission must be indicated. Each member of the commission is registered in alphabetical order, indicating their full name and position.
The main part. It sets out the established facts of the case, findings and conclusions. For example, this part may contain the following entry: “The commission found that employee Ivan Ivanov, holding the position of sales manager, refused to sign the dismissal order.”
The final part. All commission members put their signatures on the document. Information about the number of copies of the document is indicated.

IMPORTANT! It is very important for the employer to draw up an act in full compliance with the law. Fundamentally, this is because an employee’s refusal to sign already indicates a conflict of interest. If the act is drawn up incorrectly, there is a high risk that the employee will go to court to challenge this document.

Let's consider the basic requirements for the act of refusal to sign:

The document is drawn up by a HR employee.
The paper must include this information: information identifying persons (position, etc.), full name of the employee who refused, full name of the commission members.
The document is signed by the manager and two witnesses.

The paper must contain a heading, the name of the act, and the event that is being confirmed.

In what cases is it necessary to notify an employee of dismissal?

If the notice was not given to an employee of the organization, he has the right to challenge his dismissal. First, you should submit a corresponding application to the labor inspectorate. You can also apply to the court.

You can also challenge a dismissal if the employee has read the notice of dismissal but has not signed it. But the employer did not draw up the corresponding act.

In most disputes between employers and employees, the courts side with the workers. The exception is the liquidation of a legal entity, because in this case it is much more difficult to restore justice.

When an employee resigns on his own initiative, he also has an obligation to notify the employer in advance of his departure. The law establishes the following notice periods:

3 days – upon dismissal of a seasonal worker or an employee on a probationary period (Articles 71 and 296 of the Labor Code);
1 month – upon dismissal of the head of the organization (Article 280 of the Labor Code);
2 weeks – in other cases (general rule, Article 80 of the Labor Code).

Notification means the advance submission of an application to the employer, in which the employee indicates the date of the upcoming dismissal at his own request.

According to the requirements of labor legislation, the dismissal procedure must follow the following algorithm:

the emergence of grounds for termination of the employment contract;
management prepares a written notice of dismissal, which is handed to the employee against signature;
issuing an order to stop working;
delivery of a work book and full settlement with the citizen.

The absence of at least one of these stages indicates the incompetence of the participants and the illegality of the decision made. In practice, most often conflicts arise due to the lack of official notification. Thus, according to the provisions of the Labor Code, the company administration is obliged to inform the employee about the expected dismissal in the following circumstances:

complete liquidation of the organization (indicate the number of the administrative document of the founders of the company, as well as the date of the commission meeting);
termination of an agreement with a foreign citizen (the message is sent to the person himself and to the Federal Migration Service of Russia);
completion of the legal force of a fixed-term employment contract (if necessary, its extension for a limited period or indefinitely is allowed);
reorganization of the company or reduction of staff (the warning should include an offer of a new position that the employee can take due to his qualifications);
due to failure to complete the probationary period;
termination of legal relations with part-time workers (the reason why the citizen’s services are no longer required is indicated);
if the employee has financial obligations (if regular deductions of alimony or loan payments were made from wages, then the notice indicates the amount of the remaining debt and the obligation to continue further repayments independently).

The notification can be sent in any way that guarantees receipt of the document (in person, by post). The main thing is to get confirmation that the worker has become familiar with the upcoming termination of the contract.

Subtleties of dismissal depending on the reason

As noted above, there are different reasons for dismissal. Each of them has its own characteristics that must be reflected in the notification. For example:

if the dismissal occurs due to staff reduction, then in the notice the employee must be offered available vacancies for his transfer to another position;
if the reason for dismissal was the liquidation of the company, then the notice must provide a link to the minutes of the meeting of founders who made this decision;
if the dismissal occurs due to inadequacy of the position held, then the notification form should refer to the law that allows dismissal on this basis, etc.

How is a notification letter sent to an employee?

You can notify the employee of the termination of the contract by personally delivering written information or sending it by mail. With the latter option, the paper is sent by registered mail with an inventory of the contents and a return receipt.

Sending a notification by mail takes longer and requires calculating the warning period taking into account the delivery of correspondence. This method is mainly used when the employee is absent from work.

If an employee refuses to sign a notice of dismissal received in person, a report about this is drawn up. If, upon receipt of the notification by mail, the employee does not sign the notice of acceptance or the item is returned, this is confirmed by the information in the notification of delivery.

These documents will serve as evidence that the citizen was informed about the termination of the employment relationship within the period specified by law.

How to correctly inform an employee about dismissal

Dismissal at the initiative of a manager is stressful for almost every employee, because uncertainty looms ahead. A dismissed employee urgently needs to look for a job, join a new team, and experience stress from talking with loved ones. Do not forget about wounded pride, hidden resentment, it is even possible that a former employee will want to “annoy” his former employer. In addition, parting ways with an employee too harshly may have an adverse effect on other team members, who may feel that they might be treated in the same way. And this will result in a decrease in motivation, trust in management will disappear, and employees will begin to secretly look for a new job.

But still, to a greater extent, it’s all emotions. Dismissal at the initiative of the employer occurs in strict accordance with the law for a number of objective reasons. Moreover, if the manager had previously given repeated warnings to the employee, he should have already understood that serious punishment could soon follow.

Psychologists recommend having a difficult conversation about dismissal in a personal, private conversation. If the organization has a personnel department, then the presence of its representative will not hurt. In addition to oral information about dismissal, you need to take care of a written statement of organizational issues: the dismissal procedure, when the employee will be given a paycheck and the necessary certificates and documents, etc.

It is better not to drag out the conversation; 15–20 minutes of adequate conversation will be enough. The employee should have a positive impression of the company. Therefore, if the dismissal was not due to the employee’s low professionalism, you can prepare a number of letters of recommendation for him that will help him quickly find a decent job.

Competently constructing a dialogue during separation will help reduce the risks of spreading negative reviews about the company in the information space.

Notice period for voluntary resignation

Less time - three days	More than one month	The employee himself determines the notice period (Part 3 of Article 80 of the Labor Code of the Russian Federation)
During the probationary period (Part 4 of Article 71 of the Labor Code of the Russian Federation)	If the employee is the head of the organization (Article 280 of the Labor Code of the Russian Federation)	If he cannot continue working for the employer for objective reasons
If the employment contract is concluded for a period of up to two months (Article 292 of the Labor Code of the Russian Federation)	If the employee is an athlete or coach and the contract with him is concluded for a period of more than four months (Part 1 of Article 348.12 of the Labor Code of the Russian Federation)	The employer violated the requirements of labor legislation, labor regulations, the terms of the collective and (or) employment agreement
The employee is engaged in seasonal work (Article 296 of the Labor Code of the Russian Federation)

Errors when registering termination of an employment contract

True, even in this case there is still a risk that in the future the employee will challenge his dismissal. He will have a month to challenge it under Art. 392 of the Labor Code of the Russian Federation, the limitation period will be calculated from the moment the dismissal order is served. Thus, the deadline for challenging it when notified by registered mail will be significantly extended. At the same time p.

Therefore, it is so important to make every effort to find such workers, documenting all measures taken for this purpose.

In addition, Part 1 of Art. 84.1 of the Labor Code of the Russian Federation provides for the obligation of the employer, at the request of the employee, to issue him a copy of the dismissal order, although the norm does not indicate a clear period within which this document must be provided.

Notice period for dismissal at the initiative of the employer

Employees dismissed at the initiative of the employer retain the right to:

receiving severance pay if the reason for dismissal is staff reduction or liquidation of the enterprise. In addition, when staffing is reduced, the employee must be offered all available vacancies at the enterprise before dismissal;
receiving wages for the time actually worked;
receiving compensation for unused vacation;
obtaining all necessary documents for employment in a new place.

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Dismissal while the employee is on sick leave or on vacation is unacceptable.

How to compose correctly

Depending on the case for which the notification is being prepared, its appearance and content vary. Be sure to include information:

name of the enterprise;
personal information about the employee, position, details of the employment contract;
reason and date of termination of the contract;
signature of the person authorized to prepare the document;
data on the transmission and direction of the document to the addressee.

But the sample letter to the bailiffs about the dismissal of an employee necessarily contains information about whether the alimony provider has any debt, whether the final payment has been made to him and when this happened.

A notification about the need to receive a payment and documents is sent if the employee does not appear for payments due to him after termination of the contract. It does not have a unified form, so they compose it in any order.

A notification for a foreigner is prepared in the form approved by Order of the Federal Migration Service of Russia dated June 28, 2010 No. 147.

The drafting of the document can be entrusted to HR department employees or any specialist with the necessary skills and knowledge in the field of labor law. There is no unified sample notification; it is drawn up according to the template approved in the accounting policy of the organization.

The document should include the following information:

Name of the organization;
date and place of the notification;
information about the dismissed employee;
the reason and date of the upcoming dismissal;
other information related to dismissal (for example, an offer of available vacancies during layoffs).

What to do if on the day of dismissal the employee does not come for documents

The Labor Code of the Russian Federation requires that an “appropriate entry” be made if, on the day of dismissal, it is impossible to familiarize the employee with the order of his dismissal.
But the code does not say exactly how to formulate and where to make this record, who should make it, or whether it needs to be certified with signatures. Therefore, we turn on logic. It is logical that the entry is made by the person who formalizes the dismissal (an accountant, a personnel officer, the employer himself).

We make a note by hand below the entire text of the order, below all the lines.

It can be formulated as follows: “the contents of the order cannot be brought to the attention of the employee due to his absence on the day of dismissal.” It is advisable to indicate who exactly made the entry, i.e. put your signature after the entry and date: “HR Inspector M.I.

It is necessary to notify the employee that an act has been issued and he needs to familiarize himself with it. If it is not possible to contact the employee by traditional means (telephone, e-mail), then you should send a registered letter with return receipt requested to the address contained in the personal file. You must keep the shipping receipt.
If the employee never showed up for familiarization, then you can draw up an act of impossibility of familiarization, similar to the act of refusal to familiarize yourself.
Although there is no requirement for such an act to be mandatory.
Make a note stating that it is not possible to familiarize the employee with the order, as required by Part.
2 tbsp. 84
Labor Code of the Russian Federation.
REFERENCE: example of an entry: “It is impossible to familiarize the employee with this order due to his absence.”
As we can see, the dismissal procedure includes several stages.

to the Russian Federation). However, it is often not possible to obtain it for two reasons:

The employee openly refuses to confirm his familiarization with the text of the dismissal order;
The employee is absent from the workplace on the day of termination of the employment contract.

With this development of events, you can take advantage of a very convenient assumption of labor legislation - make an appropriate entry on the dismissal order:

“The order cannot be brought to the attention of the employee due to his refusal to familiarize himself with its contents”;
“The order cannot be brought to the attention of the employee due to his absence from the workplace on the day of termination of the employment contract.”

It only remains to add that labor legislation contains information about who exactly should make such a record (the manager or inspector of the personnel service), as well as that witnesses are required to confirm it.

“sent by mail Receipt No.” I want to draw the moderator’s attention to this message, because: A notification is being sent...Send it faster, the time limit for issuing the TC is limited. I want to draw the moderator’s attention to this message because: A notification is being sent... Sveta Russian Federation, Nizhny Novgorod #3[70883] October 28, 2009, 1:30 pm Sorry, I didn’t read it carefully. The order and everything else are also not signed. Search the topics.

It was somewhere. I want to draw the moderator’s attention to this message because: A notification is being sent...

The employee’s will to terminate the employment contract must be clearly expressed

1. Indicate the desire to terminate the employment contract: “I ask you to fire me”, “I notify you of the termination of the employment contract”, etc. If something else is written, it is advisable to clarify the will of the employee and ask either to rewrite the application or to make an appropriate clarification in the original one . Two cases provide an excellent illustration.

In the first case, the employee traveled long distances every day for work, while the employer ignored requests for official transport. After another dispute with the director, she wrote a letter of resignation from her position and was dismissed under clause 3 of part 1 of Art. 77 Labor Code of the Russian Federation. The court found this illegal, since dismissal from a position does not yet mean termination of the employment contract;

https://www.youtube.com/watch?v=ytpolicyandsafetyru

In the second case, the employee himself made a mistake: he wrote an emotional resignation letter, but the employer fired him for absenteeism, and the court found it legal, since in the application the employee asked to return the work book and expressed dissatisfaction with the salary, there was no clearly expressed will to dismiss in the application was (Appeal ruling of the Moscow Regional Court dated August 20, 2014 in case No. 33-16314/2014).

2. Contain the date from which the employee wishes to terminate the employment relationship: in this case, in practice, recommendations have been developed to avoid the preposition “from” (for example, “to dismiss on March 1”) due to legal uncertainty as to which day is considered the last (March 1 or February 28/29?). No matter what the employer does in this case, he may find himself in an unpleasant situation - the dismissal will probably be declared illegal.

It’s better to ask the employee to write simply: “...fire on March 1”). The date must be clearly stated. For example, K. asked the court to oblige the employer to fire him. He wrote a letter of resignation, but the employer ignored it. The court rejected the claim because the resignation letter must not only express the desire to quit, but also clearly indicate the date (period) from which the employee wishes to terminate the employment relationship, otherwise uncertainty arises regarding the will of the employee.

There are so many controversial situations with the date and timing of dismissal that it would be enough for a separate article. Let's mention just a few.

The employee may forget to indicate the date on the application. There is even a practice of collecting applications “with an open date” specifically so that if an employee “disappears”, the employer can fire him. This practice is considered illegal: the employee cannot determine the moment of termination of the employment contract (Appeal ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated July 7, 2014 in case No. 33-2230-2014).

So, you should not accept applications without a specifically specified date of dismissal; it is better to ask the employee to clarify the date. After all, there is a risk that the court may conclude that the employee’s freedom has been infringed if the employer himself determines the date.

True, there is an opinion that you can independently count two weeks and fire an employee with reference to the “default” period indicated in Part 1 of Art. 80 of the Labor Code of the Russian Federation, and the courts sometimes take this into account (see, for example, the Determination of the Moscow City Court dated July 4, 2012 in case No. 11-11079). In any case, if there is no date, the employee cannot be dismissed before the expiration of the two-week period (Decision of the Primorsky Regional Court dated 04/08/2015 in case No. 33-2767/2015), unless the employee’s behavior indicates otherwise (he asks or does not object).

But it is possible to dismiss after two weeks or the period specified in the application, especially if the application was sent by mail and the employer received it after the notice period. In this case, it is possible to formalize the dismissal “retrospectively”, but it is necessary to preserve evidence of the late receipt of the application (Determination of the RF Armed Forces dated July 11, 2014 No. 78-KG14-12).

The second interesting aspect is the employer’s disagreement with the date of dismissal, for example, when an employee asks to dismiss him before the minimum notice period established by law. What to do in this situation? Count down the due date and fire or refuse to fire? Let's give an example. The employee asked to be dismissed on the day of submitting the application, which he sent by email, but the employer fired him only after a two-week period.

The court recognized this as legal: an earlier date was not agreed upon by the parties, and there were no grounds for early dismissal (Determination of the Krasnoyarsk Regional Court dated June 30, 2015 No. 4g-1010/2015). At the same time, there is an opposite position, according to which the employer does not have the right to determine the date for the employee (see Review of the cassation and supervisory practice of the judicial panel for civil cases of the Krasnoyarsk Regional Court for the 4th quarter of 2006).

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In such a situation, it is better to refuse to dismiss the employee or send a written request citing the notice period provided for in the law and asking for an indication on what basis the employee is asking for earlier dismissal. If such reasons are not specified or the employer considers them disrespectful, you can refuse dismissal or act as in the example above.

In general, in many disputes, both regarding the date of dismissal and regarding the application form, the behavior of the employee plays an important role, which may indicate his desire to quit. Let's look at examples from practice.

The workers sent telegrams notifying them of their dismissal, but since they were not certified, the employer refused to fire these people. The court of first instance sided with him, but the appeal and cassation pointed to the behavior of the workers, which indicated their intention to quit: the appearance of a representative of the workers on the day of the alleged dismissal for documents, a complaint to the labor inspectorate, the sending of a repeated telegram, the plaintiffs’ absence from work - in such conditions, the employer unlawfully avoided terminating the employment contract (Determination of the Supreme Court of the Russian Federation dated March 21, 2014 No. 5-KG13-155).

In another case, an employee sent a scanned copy of her application by email and did not return to work two weeks later. She was fired for absenteeism. The employer argued that the electronic copy could not be taken into account, and there was no original application. But the court thought differently: the testimony of witnesses confirms the sending of the application and its receipt by the employer, the behavior of the employee showed her desire to quit, and she could not personally submit the application due to the remoteness of the workplace, but she sent the original application additionally by courier (Appeal ruling of the Omsk regional court dated October 23, 2013 in case No. 33-6776).

When dismissing, the absence of an attempt to withdraw the application, any objections, receiving a work book and copies of the order in hand, etc. can also be regarded as behavior in favor of dismissal (see, for example, the Determination of the Moscow City Court dated September 12, 2011 in case No. 4g/8-6955).

Meanwhile, we must also keep in mind the opposite behavior. Thus, one employer did not take into account the employee’s repeated statements about being forced to quit, about wanting to work, about disagreement with dismissal before the expiration of the “work off” period. In this situation, the employee’s will had to be clarified and the date of dismissal agreed upon, but the employer did not do this.

* * *

We have considered only some basic aspects of dismissal at the initiative of the employee. There are many more controversial issues. To minimize the risk of a conflict situation, it is necessary to take into account the will of the employee and draw up documents for dismissal as if tomorrow you will have to present them to the court. And remember, sometimes it is better to play it safe than to pay compensation for moral damages to the employee.

Does an employee have the right not to sign?

I want to draw the moderator’s attention to this message because: A notification is being sent... Sveta Russian Federation, Nizhny Novgorod #3[70883] October 28, 2009, 1:30 pm Sorry, I didn’t read it carefully. The order and everything else are also not signed. Search the topics. It was somewhere. I want to draw the moderator’s attention to this message because: A notification is being sent...

“sent by mail No. receipt” I want to draw the moderator’s attention to this message because: A notification is being sent...However, even if recognized, the courts of second instance, as a rule, cancel such decisions. As an example, we can cite the appeal ruling of the Krasnodar Regional Court dated May 17.

2012 in case No. 33-7701/2012. The court of first instance did not support the plaintiff’s request to declare the dismissal illegal due to late familiarization with the order. The appellate court considered this a significant violation of Art. 79, as well as part 1 of Art. 84.1 and overturned the decision of its predecessor, satisfying the plaintiff’s demands.

Separate articles are devoted to the timing of notification of dismissal, but information can be provided in writing without presenting the order itself, which means that such norms should not be considered as mandatory guidelines regarding familiarization with the order. However, Art. 62 of the Labor Code of the Russian Federation states that, at his request, an employee must be given duly certified copies of all documents accompanying his work, including a copy of the dismissal order, no later than 3 days after his request.

Some people mistakenly interpret this provision as the employer’s obligation to issue a dismissal order at least 3 days before dismissal. Dedicated to the termination of an employment contract at the initiative of the employee, Art.

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80 also does not provide for a period of familiarization with the order.

The employee has no complaints. Question: who is right? what references are there not only to legislation, but also to judicial practice. Answer Answer to the question: According to Part 2 of Art. 84.1 of the Labor Code of the Russian Federation, the employee must be familiarized with the order to terminate the employment contract against signature.

At the request of the employee, the employer is obliged to provide him with a duly certified copy of the said order. In the event that the order cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it against signature, a corresponding entry is made on the order (instruction).

From the analysis of judicial practice, it does not follow that the employer is obliged to look for the employee to familiarize himself with the dismissal order or send him a copy of the order without his application. A violation is the absence of both the employee’s signature on the order and a note indicating refusal to sign or impossibility of familiarization (see.

Refusal to sign is a sign of a conflict of interest between the employee and the employer. For example, an employee does not agree with the manager’s decision, and therefore tries to create obstacles. A similar situation is common when an employee is fired. The manager is trying to fire the specialist, but the latter does not want to leave his job. Therefore, he does not agree with the dismissal order in the form of a signature.

The duties and rights of an employee are specified in Article 21 of the Labor Code of the Russian Federation. The list of responsibilities does not include such an action as putting a signature on orders. Refusal to sign, according to Article 379 of the Labor Code of the Russian Federation, can be recognized as self-defense by an employee of his labor rights. Such provisions of regulations are fully justified, since in practice it is impossible to force a person to sign.

At the same time, the law obliges the employer to familiarize its employees with the order upon signature. Some contradiction is created. However, legislators provided for the situation of a specialist’s refusal. An employee’s refusal, according to Article 84.1 of the Labor Code of the Russian Federation, cannot become an obstacle to the execution of a dismissal order. In such a situation, you need to make this entry in the document: “Refused to sign.”

Article 193 of the Labor Code of the Russian Federation states that the employer must also draw up a certificate of refusal. The preparation of this document must be carried out in accordance with the rules. If this paper is not drawn up, the manager’s order will not be valid. An employee can challenge the validity of this document.

Let's look at an example. The manager wants to fire an employee. He draws up an appropriate order. The employee refuses to sign. The employer still terminates the employment contract. The employee is challenging his dismissal in court. He argues his claim with the fact that he was not familiarized with the order. The employer cannot challenge the plaintiff’s argument in any way, since both the signature confirming familiarization and the document are missing.

Refusal to sign will result in the following consequences:

Refusal will not be an obstacle to the implementation of the manager’s order if the latter draws up the act correctly.
Refusal may be considered as disagreement with management's order. That is, this is a violation of labor discipline. This is relevant for cases where an employee is asked to sign orders for a business trip or to undergo a medical examination. In this case, disciplinary punishment follows.

The consequences of the situation in question depend almost entirely on the actions of the employer. Therefore, he must be guided by the law. This will help prevent future litigation.

Important

It's fast and free! Table of contents:

Obligation to familiarize yourself with the dismissal order
How to present a document to an employee?
What to do if the employee does not sign it?
The procedure for drawing up an act of refusal
Impossibility of presenting a document to a worker

Obligation to familiarize yourself with the dismissal order In the event of a breakdown in the employment relationship, an order to dismiss the employee is issued, taking into account the existing grounds. REFERENCE: The State Statistics Committee of the Russian Federation has approved a unified form of dismissal order.

Article 84.1 of the Labor Code of the Russian Federation contains a rule on the mandatory familiarization of the employee with the dismissal order against signature (there is a separate line in the unified form for the employee’s signature).

Attention

The Labor Code of the Russian Federation provides for familiarization with the dismissal order as one of the stages of termination of an employment contract.

Our material discusses the procedure for such familiarization and the consequences of violating it. Familiarization with the dismissal order under the Labor Code of the Russian Federation What to do if an employee refuses to familiarize himself or it is impossible? Deadlines for familiarization with the dismissal order Judicial practice on this issue Familiarization with the dismissal order under the Labor Code of the Russian Federation Familiarization of the employee with the dismissal order, as already mentioned, is one of the mandatory elements of the procedure for terminating an employment contract.

In this case, familiarization is confirmed by the signature of the employee.

True, in order to apply this clause in connection with the disclosure of, for example, a trade secret, it is necessary to issue a local regulatory act.

It should describe: what exactly is classified, who has the right to work with this data and in what order.

According to the new rules, it is possible to terminate an employment contract with an employee if the personal data of another employee is disclosed.

But the list of this information about the employee is not fixed anywhere.

Article 84 of the Labor Code only establishes their general concept. This is information about the employee necessary for the employer in connection with labor relations.

For example, information about the employee’s last name, first name, patronymic, his place of residence and passport number, education, date of birth.

However, even a photo on a personal card is classified information.

Thus, after a corporate party on the occasion of a colleague’s anniversary, the instigators of the holiday may be preparing to quit.

The act should reflect key points:

Date of preparation;
complete information about the persons who will sign this act;
time of refusal and information about the refused employee;
details of the issued document;
reasons for refusal to sign;
signatures of witnesses with transcripts.

Drafting sample

Name of the organization________________

Notification

___________ (date) No. _________

Dear ____________ (personal data of the citizen)!

We inform you that as of ______(date) your position will be reduced. Based on Art. 180 TC, we offer all available vacancies ____________ (full list with salary).

Employee_____________ (signature and transcript)

Manager _____________ (full details and signature)

Name of company_____________

Notice of dismissal of an employee (sample)

___________Date No._____

Dear _________(citizen details)!

We inform you that the employment contract No._____ dated ____ (date) ends on ________ (the last day of performance of official duties). In this connection, at the specified time you will need to go to the HR department to receive documents and wages.

Supervisor__________

Employee ______________ (full signature and date of receipt of notification)

Here we should not forget that the specified document is drawn up and handed over to the person three days before the specified date of dismissal. If this does not happen, the employment contract is extended and it becomes indefinite.

Time limits for familiarization according to the Labor Code of the Russian Federation

According to existing legislation, the act must be stored in the organization (its archives department, safe, etc.) for three years. This is the case if employees do not work in hazardous conditions.

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Labor legislation does not establish a single and specific rule for the time period within which an order to dismiss an employee must be familiarized with.

But it affirms the employer’s obligation to issue a full paycheck and work book to the employee on the day of immediate dismissal.

To avoid problems, employers try to inform the resigning person in advance. But even a signature placed on the day of settlement will not be considered a violation of the law.

Reduction

This procedure for terminating an official relationship with an employee must be formalized in accordance with the strict requirements of Art. 180 of the Labor Code. In addition, on the last day of employment of a person who is fired due to a reduction in staff, he must be paid his entire salary and severance pay.

— notification of the employee subject to dismissal (two months before the start of the event);

- offering the subordinate other vacancies that this manager has at the enterprise;

— delivery of the notification against signature (on the second copy he must also put a tick indicating receipt);

- full payment of all funds on the last day of work (compensation for two months, salary and vacation pay).

If the boss follows the specified algorithm of actions, the subordinate will have no reason to appeal to the judicial authorities to protect his rights. In this case, the reduction of an employee according to the Labor Code of the Russian Federation will comply with the norms of labor legislation.

Employer's procedure

Let's consider all the actions an employer must take if an employee refuses to sign:

In the presence of two or three employees, the employee is invited to familiarize himself with the act. It is advisable that these employees are not direct subordinates of the manager.
The employee verbally refuses to sign.
The employer reads out the order so that the employee is familiar with the document.
An act of refusal to sign is drawn up. It is recommended to prepare it in advance.
Witnesses sign this act. The employee is also asked to sign the document.
If the employee refuses this signature as well, the document must be marked with o. This note is also confirmed by the signatures of witnesses.

IMPORTANT! The note indicating the employee’s refusal to sign must be handwritten. The registration number and date of execution of the act must also be affixed by hand.

Causes

In order to end an official relationship with an objectionable subordinate, the employer must have strong arguments so that after his dismissal, the employee does not turn to the judicial authorities and is not reinstated in the workplace. That is why the procedure for terminating an employment contract with a citizen must be formalized in accordance with the norms of the Labor Code.

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However, the reasons for the dismissal of employees can be very diverse: layoffs, termination of the organization’s activities, expiration of the service agreement, failure to complete the probationary period. But each of them must be issued only in accordance with the law. If the dismissal of a person must be carried out due to the fact that the period of validity of his service agreement has come to an end, then the manager must warn the employee about this three days before the date of termination of the service relationship.