Dismissal of an employee. Leave before leaving

Many employers often need to find out how to fire an employee without his will under the law. Given the very stringent requirements labor law, as well as the fact that very often employees, especially retirees, do not want to leave, this can turn into a long and burdensome procedure in 2018, which also has many additional risks. Therefore, some employers, as a result, are even forced to conduct activities to their own detriment, instead of looking for information on how to dismiss an employee under the article and without consequences. However, there is always a way out of this situation - after all, labor legislation protects the rights of not only employees, but also employers.

How to fire an employee without his desire by law in 2018

Situations in which an employer wants to dismiss an employee without his desire under the law are extremely common in 2018 - some employees may perform actions that are clearly destructive for the company, do not fit in with the team and spoil the working environment, or the need for dismissal may also be caused by third-party circumstances. At the same time, very often employees use the fact of protection from the law and in every possible way prevent their dismissal. Therefore, in case of illiterate actions, the employer is either forced to endure their presence and incur certain costs because of this, or is at risk of being held liable for illegal dismissal.

However, the law also protects employers by providing them with such tools to influence employees:

• This is the best option, as it will allow the employee not to receive negative entries in the work book, and the employer will get rid of possible claims. At the same time, you can both convince the employee to write, and draw up an agreement with him on termination employment contract- the second case provides for the possibility to provide the employee with any guarantees and payments in accordance with the provisions of Article 78 of the Labor Code of the Russian Federation. However, not every employee will take such actions - if he is determined to stay at work at any cost, then it will be impossible to dismiss him in this way.
• The current legislation gives the employer the power to use disciplinary action against employees, up to and including dismissal for a certain list of misconduct. At the same time, the range of grounds for dismissals is quite wide, therefore, in many situations, the employer has the opportunity to get rid of an objectionable employee if he does not follow instructions or grossly violates labor discipline.
• In cases where the main purpose of dismissal is to save the company's finances, it may turn out good option dismissal of an employee without his desire, according to the law, it is a reduction in staff. However, it should be remembered that this method requires the strictest adherence to procedural requirements and is associated with additional costs for the employer.
• If it is necessary to dismiss an employee who does not want to quit, he has probationary period greatly simplifies the withdrawal process. However, with such a nature of dismissal, it is still necessary to take into account many features and nuances, without which it may be invalid.
• Repeated violation of the rules work schedule . If the employee did not commit gross guilty acts, due to which he can be fired immediately, then if there are several disciplinary action, he can still be fired under the article.
• Mismatch or insufficient . In some situations, an employee can be fired for inconsistency with the position held or due to insufficient qualifications.
• In the event that an employee who does not want to quit, occupies a managerial position, he can be dismissed without other grounds when the owner of the enterprise changes. Sometimes employers even have to specifically resort to a change of ownership in order to fire an employee who threatens the operation of the entire company.
• The employer has the right to independently change the working conditions for individual positions or the entire enterprise as a whole, which allows you to put the employee in such conditions that will make him further work just unprofitable. And although the employee has the right not to agree to work under the changed conditions, the employer will have the opportunity to fire him, observing a number of certain procedural actions.

There are some categories of employees who cannot be fired at the initiative of the employer under any circumstances. In particular, a pregnant employee cannot be fired even if she commits gross misconduct and guilty actions against the employer. The ability to dismiss an employee who has a child under the age of three is also limited - if this employee is a woman or the sole breadwinner.

Each of the above methods of dismissal has its own characteristics, advantages and disadvantages, as well as many nuances of the procedural registration of the procedure, so they should be considered separately in order to know how to properly dismiss an employee by law in 2018 if he does not want to quit.

How to force an employee to quit voluntarily or by agreement

In many, even conflict situations if there is a need to get rid of an objectionable employee, employers simply do not know how to force an employee to quit own will or convince him to stop labor activity by agreement of the parties. At the same time there is enough possible actions that can be taken to ensure that the employee accepts correct solution, even when it is initially set to conflict with the employer.

First of all, you should use courtesy with the employee and find out why he does not want to leave and what actions the employer can take for the employee. This may be additional monetary compensation, issued by agreement of the parties, drawing up positive recommendations, or other benefits that may incline the worker to cooperate. However, it is not a fact that the employee will accept them.

Therefore, then the employee should be explained that he will not achieve anything by conflict, and the employer will have significant opportunities to “spoil” the employee’s life. In particular, it is necessary to notify him that a “bad” entry in the work book will significantly complicate employment. In addition, the employer may make a negative recommendation about the employee. But these methods of influence do not work for every employee.

In this case, the simplest tactic of action will be to use all the tools provided by the legislation. For example, initiate the fixing of the employee’s working time, issuing all instructions to him in the form of written orders with acts of acceptance, and fixing each result or error in the employee’s activities in order to find another reason for dismissal. Including the employer may be required to resort to one of the following methods.

The most convenient for the employer will be the dismissal of employees, if initially in the employment contract the working conditions are specified as clearly as possible, but with the possibility of the employer making certain assumptions. For example, an employer has the right to set a low salary for an employee or not to indicate a specific place of work within one locality- then he will have the right to deprive the employee of the bonus part of the salary, if such an opportunity is provided for by local regulations or transfer him from place to place without his consent.

In general, these methods of action are legal, but they cannot guarantee a 100% result. Therefore, if they fail, other methods will have to be used. It should be noted that even dismissal of one's own free will can be challenged in court if it was made under duress. Therefore, the employer should properly record all his actions and the actions of the employee in the process of persuading the latter to quit. If the dismissal was carried out by agreement of the parties, then arbitrage practice demonstrates the minimum number of decisions in favor of the employee, since such a dismissal is almost impossible to challenge.

The dismissal of a pregnant woman of her own free will, as well as by agreement of the parties, is an exception. In this case, the court most often takes the side of the employee if the employer did not provide her with adequate compensation upon dismissal, comparable to the possible benefits that she would have received if she had remained at work.

How to fire an employee for a gross violation

The current legislation provides for a number of grounds on which an employee can be dismissed for a gross violation. However, the employer should remember that each such violation must be accurately and reliably documented in the manner prescribed by law. Gross violations that allow you to dismiss an employee on the sole fact of their implementation include:

This is an exceptional list of circumstances in connection with which it is possible to dismiss an employee without his desire under the law in 2018 due to a one-time misconduct. In this case, the employer will be required to complete the following procedural procedures:

1. Start an internal investigation into the circumstances.
2. Ask the employee for an explanation.
3. Issue an order to dismiss an employee.
4. Issue to an employee work book, funds due to him and a certificate of income.

In any case, this procedure can be challenged by the employee in court, and the judiciary imposes on the employer the obligation to prove the validity of the dismissal. At the same time, it should be remembered that during absenteeism for a good reason, an employee cannot be fired if the state of intoxication was not recorded by authorized persons - the employee also cannot be fired, disclosure of secrets or personal data must have all the signs of disclosure.

Notification of the employee and the issuance of all documents related to the dismissal to him must be carried out in the presence of witnesses and with their signatures on the transfer of documents to the employee and, if any, on the refusal of the employee to accept them.

How to dismiss for non-compliance or insufficient qualifications

If the employee does not correspond to the position held or has insufficient qualifications, the employer has the right to terminate the employment relationship with him. At the same time, it should be remembered that this ground for dismissal must indeed take place and certain confirmations. In addition, the very establishment of qualifications and compliance job requirements of an employee must be carried out in independent centers for assessing qualifications, and the employee has the right to challenge their decision.

You can read more about dismissal for non-compliance. However, the employer should take into account that a fictitious dismissal for this reason will in any case be illegal. In addition, the employer will have to pay for services to confirm the qualifications of an employee.

A mandatory step before dismissal on this basis is to offer the employee positions that suit his qualifications. It will be possible to finally terminate the relationship only if there are no such positions in the enterprise, or if the employee refuses to occupy them.

How to dismiss an employee without his desire under the law by changing the terms of the contract

A common method used to fire an employee without his will under the law in 2018 may be to change the terms of the employment contract. According to the law, the employer can make such changes only with the consent of the employee. However, a number of actions and situations allow changes to be made without the consent of the employee.

In this case, the employer only needs to notify employees 2 months in advance of changes in working conditions, including the place of work, the amount or system of payment, official duties in connection with the reorganization production processes. The very fact of reorganization must also be confirmed by internal regulations. Employees who do not agree with these changes should be given the opportunity to take any other vacant position suitable for them in terms of qualifications and health at the enterprise - and only after their refusal or in the absence of these positions, they can be dismissed.

How to get fired on probation

If an employee needs to be fired without his desire during a probationary period, the provisions of the current legislation give the employer additional opportunities to carry out this procedure. In particular, he can inform the employee about his failure to pass the test at least three days before the actual dismissal. In this case, the employer in case of disputable situations should take into account the following nuances:

• It is the employer who must provide evidence confirming the employee's failure to pass the test. In their absence, the dismissal will be considered illegal.
• The employee must be legally on probation. And this period cannot be assigned to young professionals, pregnant women and minors.

Therefore, basically challenging the dismissal during the probationary period is based precisely on the above two grounds. And it is the employer who should take care of the availability of all documents confirming both the legality of the probationary period and the validity of dismissal due to unsatisfactory test results.

How to lay off an employee without his desire

If it is necessary to reduce an employee without his desire, the employer has the right to do this in accordance with the standards of Article 81 of the Labor Code of the Russian Federation. At the same time, it should be remembered that the employer in connection with such a dismissal has a number of responsibilities:

• Advance notification of layoffs. Employees must be given at least two months' notice of impending layoffs.
• Mandatory notification of all regulatory authorities. Namely - trade union organization, employment center.
• Providing severance pay to employees. It is paid at least in the amount of two months' average earnings of employees.
• Implementation of social guarantees for certain categories of employees. Such guarantees include both a complete ban on layoffs for some workers and the right of workers to have priority retention in the workplace.
• Offer of all vacancies. The employer, as in many other situations, is obliged to provide the reduced opportunity to get other vacancies suitable for them.

You can also read more about the features of layoffs to reduce staff, where all the nuances of this procedure are considered.

How to dismiss an employee without his desire under the law in 2018 - other nuances and features

In case you need to dismiss an employee without his desire according to the law in 2018, there are also many other additional nuances and features that unscrupulous employees can use to keep them at work. In particular, regardless of the circumstances, the dismissal of employees on sick leave or vacation is expressly prohibited. In this case, it is necessary to notify the employee in writing about the need for him to sign an agreement to dismiss on a specified date, or else - to first require such consent from him.

An attempt to dismiss a pensioner without his desire according to the law in 2018 can cause particular difficulties for the employer. In practice there are no normative documents, which in a special way would regulate the procedure for the dismissal or retention of pensioners at work. The exception is public service of any nature - in this case, the age limit at which an employee can hold a position is 65 years old and he will not be able to challenge such a dismissal.

It should also be remembered that the dismissal of managers during a change of ownership is allowed without any other grounds for terminating the employment contract. But it must be understood that leadership positions in this context, only the immediate head of the enterprise, his deputy, as well as the chief accountant are included.

It would seem that it could be easier than dismissal of your own free will? The employee submits an application, personnel officers draw up a dismissal. However, even here questions sometimes arise. Let's figure it out.

On the one hand, HR departments do everything possible to reduce staff turnover, use various tools to minimize the number of layoffs among those employees who fit the organization. On the other hand, when it becomes clear that the employee has not "taken root", the actions of personnel officers become diametrically opposed - the employee is given to understand that it is time for him to leave the organization. At the same time, it is especially important to formalize the dismissal in accordance with the law and avoid mistakes.

Consider how to properly dismiss an employee of your own free will.

STEP 1: WE RECEIVE A STATEMENT OF DISMISSAL FROM THE EMPLOYEE AND CHECK IF THERE ARE NO PECULIARITIES BY THE TERM OF THE WARNING

The decision to quit of one's own free will must be made by the employee voluntarily. If the management of the organization strongly suggests that the employee write a statement “of his own free will”, threatening to be fired under the article (for absenteeism, incompetence, etc.), the employee can go to court and prove that he was forced to write a letter of resignation.

If the employee is set to conflict, it is better to talk about his dismissal in the presence of witnesses loyal to the employer, who, if the employee goes to court, can confirm that there was no pressure on the employee.

So the employee decided to quit. Now you need to write an application. In accordance with the first part of Art. 80 of the Labor Code Russian Federation(hereinafter referred to as the Labor Code of the Russian Federation), the employee has the right to terminate the employment contract if he warned the employer in writing.

The employee writes a letter of resignation at his own request in any form. But there are points that need to be checked so that there are no problems in the future.

CHECKING THE APPLICATION FOR CORRECTNESS

■ The employee must write the application himself. Both forms and handwritten statements will do - the main thing is that the signature is handwritten.

If the employee did not write a statement or another person wrote a statement for the employee (for example, a relative or a personnel specialist), this will be a violation and may lead to reinstatement (see, for example, the Appellate ruling of the Nizhny Novgorod regional court dated March 29, 2016 in case No. 33-3645/2016). If the employee cannot appear to write a letter of resignation, he must issue a notarized power of attorney for someone or send an application by mail.

■ The application must contain a clear request for dismissal.(“I ask you to fire me”, “I ask you to terminate the employment contract”, etc.). It happens that employees write complaints about working conditions, and the employer perceives this complaint as a request for dismissal. Therefore, if you receive such a document, ask the employee to clarify (and add) what exactly he is asking for - to dismiss him or pay attention to the problems that, in his opinion, have arisen.

■ The employer must have the original application, copy or scan will not work. If the original letter of resignation is lost, then it is also unlikely that it will be possible to prove the legality of the dismissal (see, for example, the Appeal ruling of the Moscow Regional Court dated March 24, 2014 in case No. 33-6364 / 2013). This also applies remote workers if there is no electronic digital signature (Article 312.1 of the Labor Code of the Russian Federation).

■ The application must indicate exact date layoffs. This is important for determining the notice period.

WE MAKE AN APPLICATION DEPENDING ON THE SITUATION

1. The employee submits an application without indicating the date of dismissal, but indicating the date of filing(Example 1).

The employee submits an application on 05/17/2017 (Wednesday), according to the Labor Code of the Russian Federation, the last day of his work (day of dismissal) will be 05/31/2017 (Wednesday), while non-working and holidays included in the termination notice. If the application contains the date of submission, the employer applies the rules provided for in Art. 80 of the Labor Code of the Russian Federation, and dismisses the employee in two weeks.

Judicial practice confirms: if the employee did not set the date of dismissal in the application, the employer has the right to dismiss him in this case only after 2 weeks (see the Appeal ruling of the Omsk Regional Court dated January 27, 2016 in case No. 33-574 / 2016).

2. The employee submits an application indicating the date of the last working day.

Employees sometimes indicate in the application the date of the last working day, calculated independently based on the 2-week notice period (Example 2). However, the calculation is not always correct, because of this, misunderstandings arise. For example, an employee has calculated that his last working day will be 05/30/2017 and has already agreed with the new employer to start work on 05/31/2017. However, he miscalculated - on May 31, he must work at his former place of work. Therefore, before writing a statement, it is better for an employee to calculate his last working day together with a personnel officer.

The text of the statement might look like this:

3. The employee wants to quit before the two-week deadline and in the application indicates the desired date of the last working day.

Often, employees turn to the employer with a request to dismiss earlier, before the expiration of the notice period. In this case, the employee, as a rule, indicates the date of dismissal in the application.

Indeed, the employment contract can be terminated even before the expiration of the notice of dismissal, if both parties agree.

■ If the manager agrees so that the employee does not work during the warning period, he puts the appropriate visa (Example 3).

■ If the manager does not agree dismiss the employee before the expiration of the warning period, and put such a visa (Example 4), then the employee will have to work for two weeks.

4. The manager wants to fire the employee as early as possible so that he does not work for two weeks.

Sometimes the employer himself wants to dismiss the employee before the expiration of the warning period. However, in this case, the law is on the side of the employee - he has the right to disagree with the manager's proposal to leave the organization earlier and can insist on dismissal only after the warning period has expired.

If the employee was fired earlier than two weeks after the notification without the mutual consent of the parties, then the dismissal may be declared illegal (see the Appeal ruling of the Supreme Court of the Republic of Mordovia dated February 11, 2016 in case No. 33-254 / 2016).

5. The employee wants to go on vacation before dismissal and then quit without going to work.

Sometimes an employee wants to go on vacation and quit without going to work. It's about vacation followed by dismissal. Then this must be indicated in the application (Example 5).

Note! If an employee filed a separate application for dismissal and a separate application for vacation, this is no longer a vacation with subsequent dismissal, but two separate personnel processes that are not related to each other. And they are made out each in its own form.

WE USE APPLICATION FORMS

If the organization has a high turnover of staff, it is better to use ready-made employee application forms to avoid problems with determining the date of dismissal. (Example 6).

The wording may be different:

WE DETERMINE THE DAY OF DISMISSAL IN DIFFICULT CASES

■ If the day of dismissal is a non-working or holiday. You can quit these days. Another thing is that it is inconvenient. If possible, it is better to indicate the worker on the last working day in the application. Otherwise you will have to:

Dismiss the employee on the day indicated in the application - that is, involve employees of the personnel service and accounting department to work on the day off;

Dismiss the employee on the next working day (see the Appeal ruling of the Arkhangelsk Regional Court dated August 11, 2014 in case No. 33-3916).

■ If the employee is sick on the day of dismissal. If the employee is sick on the day of dismissal, the dismissal will be legal (see the Appeal ruling of the Volgograd Regional Court dated February 13, 2015 No. 33-1664 / 2015). In this case, temporary disability benefits are paid on the basis of a properly executed disability certificate provided to the employer.

NOTE

Temporary disability benefit is paid if the employee fell ill while still working and continues to get sick after dismissal. The benefit is also paid if former employee fell ill after the dismissal, but within 30 calendar days after the date of dismissal (part 2 of article 5 federal law dated December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with motherhood”, as amended. dated July 3, 2016, hereinafter - Federal Law No. 255-FZ). The benefit is paid if the former employee provides the employer with a certificate of incapacity for work.

STEP 2. REGISTER THE EMPLOYEE'S APPLICATION

The application should indicate the date and number of the incoming document, this will avoid disputes about the date of receipt of the application.

If the situation is potentially conflicting, then the employee may require to put down the incoming number and date on a copy of the application. It makes no sense to refuse to put a mark on the receipt of the application on the copy of the application that the employee has, as he will be able to receive such confirmation by sending his application by mail. Refusal will only lead to a deterioration in relations with the employee and conflict.

If the employee sent the application by mail, by registered mail with acknowledgment of receipt, then the date of its receipt will be the date of notification of receipt of the letter. In this case, the period of notice of dismissal is counted from the day following the date of receipt of the letter with the application.

NOTE

The warning period is counted from the moment of signing the mail notification. Even if correspondence in an organization goes through a difficult path (first registration, then distribution by departments) and arrives at the contractor a few days after receiving it by mail, this does not change the warning period.

If the application was sent by ordinary letter, the deadlines will depend on the dates on the postmarks. For example, if a letter was received by mail on May 15, 2017, and the postmark reflects this date, then the warning period is counted from that moment. In this case, the organization may receive a letter later.

Sometimes the registration procedure itself is delayed, which also increases the risk of untimely dismissal. Therefore, it is important that the secretary register incoming documents as soon as they enter the organization. The logbook can subsequently be presented as evidence of the actual date of receipt of the document.

STEP 3: MAKE SURE THAT THERE IS NO APPLICATION FOR THE WITHDRAWAL OF THE STATEMENT OF DISMISSAL

Even if the employee wrote a letter of resignation, he has the right to withdraw his application at any time before the expiration of two weeks, including on the last working day (that is, on the day of dismissal) even after the end of the working day - that is, until 23 hours 59 minutes .

■ About the withdrawal of the application. The form of revocation of the letter of resignation may be arbitrary. At the same time, the legislation does not directly indicate in what form an employee can submit a review - in writing or orally.

Therefore, if there is no written recall, the employee can prove the fact of revocation of the resignation letter in court and in other ways. For example, to involve witnesses who will confirm that he submitted an application orally, but the personnel officer did not accept the application.

However, a written revocation is still preferable (Example 8).

The employee has the right to send a review by mail before the expiration of the warning period.

At the same time, some courts believe that it is enough for the employee to send an application before the deadline (see the ruling of the Moscow City Court dated April 17, 2014 in case No. 4g / 7-2982 / 14), and others that it is necessary for the employer to receive such an application before the end of the term (see the Appeal ruling of the Supreme Court of the Chuvash Republic dated September 29, 2014 in case No. 33-3461/2014). In any case, the court will check whether the employee really wants to stay or is trying to abuse his right (see the Appeal ruling of the Moscow City Court dated 08.10.2015 in case No. 33-33824 / 2015).

■ When does an employer have the right not to accept a withdrawal of an application? The recall can be ignored if another employee is invited in writing to the place of the employee in the order of transfer (part four of article 64 of the Labor Code of the Russian Federation). Employers often do not pay attention to the fact that in this case a new candidate should already be fired from his previous job. Then, indeed, the withdrawal of the application can be refused, but in other cases the court will reinstate the employee at work (see the Appeal ruling of the Stavropol Regional Court dated July 12, 2016 in case No. 33-4148 / 2016).

Voluntary dismissal is recognized as illegal if the employee withdrew his application, but another employee who is in an employment relationship with the same employer has already been invited to take his place (see the ruling of the Supreme Court of the Russian Federation dated May 31, 2013 No. 5-KG13-43).

STEP 4: ISSUING THE RELEASE ORDER

Termination of an employment contract is formalized by order of the employer (part one of article 84.1 of the Labor Code of the Russian Federation) no later than the last day of the employee's work. The dismissal order is issued in the form T-8, approved by the Decree of the State Statistics Committee of 01/05/2004 No. 1, or in the form of an organization.

If there is no order on the last working day and the employee continues to work the next day, then the dismissal did not take place, even if the employee submitted an application.

You can issue an order earlier, that is, not on the last day of work, but, for example, 2-3 days or even 1-2 weeks in advance. This will not be a mistake (see, for example, the Appellate Ruling of the Supreme Court of the Komi Republic dated October 29, 2015 in case No. 33-5945/2015).

NOTE

If the employee has filed a letter of resignation, but the employer has not issued an order, the employee, having worked the last day, has the right not to go to work the next day.

If the employer did not issue an order, that is, violated the procedure for filing a dismissal, then the employee may recover compensation for moral damage (see, for example, the Appeal ruling of the Krasnoyarsk Regional Court of August 26, 2015 in case No. 33-9181).

The dismissal order may look like this (Example 9).

The employee must be familiarized with the dismissal order on the last working day against signature. At the request of the employee, the employer is obliged to issue him a duly certified copy said order(orders).

If for some reason the employee refuses to get acquainted with the order or did not appear to sign the order, then invite two witnesses and draw up an act of refusal to familiarize or an act of the employee’s failure to appear to sign the order (Example 10).

In addition, in the order below the line of acquaintance of the employee, in case of his refusal or non-appearance, you should write:

STEP 5: COMPLETE THE TIME SHEETS

The time sheet (according to forms T-12, T-13 or in the form approved by the organization) must be filled out for each employee on the day of dismissal (Example 11). It is better to do this in advance (2-3 days in advance), so that the accounting department has time to calculate the dismissed person and transfer wages and compensation for unused vacation no later than the day of dismissal.

STEP 6: CHECK THE DELIVERY OF PROPERTY AND DOCUMENTS

The employee must return the property of the company, documents, transfer cases according to the act of acceptance and transfer no later than the day of dismissal. If the employee refuses to transfer documents or property, an appropriate act should be drawn up.

Often, employers draw up the return of property and documents in the form of a bypass sheet - a document in which the employee signs that he has handed over this or that property or documents (Example 12).

The personnel department ticks (V) the departments whose heads must sign the bypass sheet:

Immediate supervisor, personnel department, accounting, security service (pass) - for all employees;

IT department, AHO department (fuel card), legal department - for employees of the engineering and technical service.

Warehouse, labor protection specialist - for workers;

General Director - for deputy directors and heads of departments.

Legislation does not regulate the issue of the delivery of property and documents, with the exception of financially responsible persons. Upon dismissal of a financially responsible person, the organization is obliged to conduct an inventory with the proper registration of its results (clause 1.5 Guidelines on the inventory of property and financial obligations, approved by order of the Ministry of Finance of Russia dated 13.06.1995 No. 49, as amended. from 08.11.2010). For example, you can draw up an act of acceptance and transfer of cases and property (Example 13).

Therefore, we believe that the employer can use the bypass sheet to confirm the return of property and documents by the employee. But the employer is not entitled to delay the dismissal of the employee if he did not return the property or documents. In a disputable situation, the employer must apply to the court with a claim against the employee for the return of property or documents.

While the employee has not left the organization, check whether the employee's signature is on the documents that he had to sign, in particular:

On the employment contract and additional agreements to it (a copy of the organization), job description(in the presence of);

On all orders in relation to the employee;

In sheets (magazines) of acquaintance with the local regulations of the organization affecting the labor duties of the employee.

If there is no signature in any documents, you must ask the employee to sign.

STEP 7: FILLING IN AND ISSUING THE WORK BOOK

The employer is obliged to issue a work book to the employee on the day of dismissal. An entry on the termination of the employment contract is made in the work book on the last day of work, certified by the signature of the responsible employee, the seal of the employer and the signature of the dismissed employee (clause 35 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by a decree of the Government of the Russian Federation dated 04/16/2003 No. 225, hereinafter - Rules for maintaining and storing work books) (Example 14). If the employee refuses to sign the work book, it is necessary to draw up an act (Example 15).

If the employee did not appear for the work book, before the end of the day of dismissal, send him a notice about the need to pick up the work book or give consent in an arbitrary written form to send it by mail (part six of article 84.1 of the Labor Code of the Russian Federation). The notification must be sent by valuable letter with acknowledgment of receipt to all known addresses of the employee.

ATTENTION EMPLOYEE

If an employee cannot come for a work book, he has the right to ask the employer to send it by mail to the address indicated by the employee. To do this, you must submit an application to the employer in person or send it by mail with a list of attachments (Example 16).

Having received a work book, the employee signs in the book of accounting for work books and inserts to them (clause 41 of the Rules for maintaining and storing work books), which will be proof of its issuance. If the work book was sent by mail, it is necessary to make a note about this in the accounting book and indicate the date of sending. You can also specify postal receipt numbers.

Vacation followed by dismissal. In this case, the date of dismissal will be the last day of vacation (part two of article 127 of the Labor Code of the Russian Federation).

When granting leave with subsequent dismissal, a work book is issued on the last working day before the start of the leave. However, the date of dismissal in the work book must be entered in accordance with the order of dismissal. The final settlement is also made on the last business day (determination of the Constitutional Court of the Russian Federation of January 25, 2007 No. 131-O-O, letter of Rostrud of December 24, 2007 No. 5277-6-1).

STEP 8: ISSUING AN EMPLOYEE'S PERSONAL CARD

On the last working day, information about the dismissal must also be entered in the employee's personal card (unified form No. T-2 or a form approved by the organization). In this case, the employee must put down his signature under the record of dismissal (paragraph three of clause 41 of the Rules for maintaining and storing work books) (Example 17).

STEP 9: WE SET OFF THE EMPLOYEE

The employer is obliged to make a calculation (Article 140 of the Labor Code of the Russian Federation). This means that the organization must pay the employee all the amounts due on the day of dismissal, namely: salary for the period worked, bonuses, allowances and other payments. The employer is also required to pay compensation for all unused vacations(part one of article 127 of the Labor Code of the Russian Federation).

If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a settlement request (part one of article 140 of the Labor Code of the Russian Federation).

The employee must be calculated even if there is a dispute about the amounts to be paid. For example, the employee did not return the property, and the organization wants to withhold its value from the salary, or the manager believes that the employee did not deserve this month's bonus. The employer is obliged on the last day of work (the day of dismissal) to pay at least an undisputed amount (part two of article 140 of the Labor Code of the Russian Federation). On the day of dismissal, the employee must receive a pay slip indicating all amounts paid.

STEP 10: WE GIVE HELP TO THE WORKER

Check if the accounting department issued certificates to the employee in accordance with the law:

Certificate of the amount of earnings on which accrued insurance premiums in the FSS (clause 3, part 2, article 4.1 of Federal Law No. 255-FZ);

Information about the amounts of accrued and paid insurance premiums in Pension Fund RF (Article 11 of Federal Law No. 27-FZ of 01.04.1996 "On Individual (Personalized) Accounting in the System of Compulsory Pension Insurance", as amended on 12/28/2016).

Other certificates and copies of documents at the request of the employee.

Why is it so important to follow the step by step algorithm? If you violate the procedure, the employee will have a reason to challenge his dismissal in court. If the court is on the side of the employee, then the employer will have to:

Reinstate the dismissed at work (Article 394 of the Labor Code of the Russian Federation);

pay out average earnings for the time of forced absenteeism from the moment of dismissal until the moment of reinstatement at work (Article 394 of the Labor Code of the Russian Federation);

Compensate for non-pecuniary damage for illegal dismissal (Article 237 of the Labor Code of the Russian Federation);

Reimburse the employee's legal expenses (costs of a lawyer);

Pay interest for each day of delay in settlement (Article 236 of the Labor Code of the Russian Federation);

Pay unreceived earnings for the delay in issuing a work book (Article 234 of the Labor Code of the Russian Federation).

From January 1, 2013, the forms of primary accounting documents contained in the albums unified forms primary accounting documentation are not mandatory for use.

The dismissal process is regulated Labor Code of the Russian Federation. The main act of labor legislation contains a list of articles that describe the grounds for the dismissal of a person. In the process, it is important to consider various nuances: from correct design documents to psychological aspects.

Stages (procedure) of dismissal

The dismissal process consists of a number of steps. In order for this process to take place in compliance with all the requirements of labor legislation, it is important to take into account each of them.

In the process of dismissal, you must go through the following steps:

• acceptance and registration of the application;
• issuance and registration of the corresponding order;
• familiarization of the retiring person with this document;
• registration of a note-calculation;
• making a full settlement with the resigning person;
• a record of the fact of dismissal in the accounting documents of the company;
• receipt by an employee of a work book with an appropriate mark (confirmed by the employee's own signature);
• receipt by the employee of a salary certificate (sometimes this step is initiated by the employer, but more often a certificate is issued at the request of a retired employee).

Dismissal at will. Writing an application

The easiest way to get fired. Implies submission statements employee on their own. The employer, seeing that the subordinate does not fulfill his duties, may push him to write a letter of resignation. The employee in this situation receives good recommendation for further employment.

Voluntary dismissal- the best option. This process happens quickly and without mutual dissatisfaction. The employee writes a statement, and the employer provides a good recommendation. Download an example of such a statement

It is necessary to dismiss an employee as delicately as possible, without unleashing conflicts on both sides!

If you refuse to write a statement of your own free will, you can use other approaches, but in no case should threats be allowed. This will make it difficult for the employee to leave and add problems to the employer.

The tenant can do the following:

• Collect a dossier on the employee (complaints from other subordinates, dissatisfaction from customers, memorandums, etc.).
• Create unfavourable conditions at the workplace (transfer part of the work to other employees, deprive bonuses and wage increases, prevent movement along career ladder etc.).

An employee may react ambiguously to such a state of affairs. After collecting the dossier, the employer calls the employee for a conversation. In the process of communication, the employer explains to his subordinate that there are facts that indicate dishonest work, and it is better to leave of your own free will than in violation of one of the articles of labor law. The employee, as a rule, agrees to write a statement.

After watching this video, you will learn the correct procedure for dismissal of your own free will. What legislative subtleties does the employer rely on when using this form of suspension from the workplace, and why should the employee still write a statement.

Dismissal of an employee by agreement of the parties

Dismissal by agreement of the parties- one of the best ways to leave the workplace. The employer, after preliminary negotiations with his subordinate, can dismiss him at any time, even in cases where the employee is not in this moment at work due to vacation.

Download an example of an application for such a dismissal option

One of the parties that initiates sends a written or oral proposal to the other person in order to discuss this issue. After negotiations and reaching the agreement of both parties on the termination of joint work, an agreement is drawn up.

It is best to draw it up in writing, indicating the date, reasons for leaving the position, as well as the conditions that the employer undertakes to comply with. This form of document guarantees the legality of the actions of the resigning and the employer. After signing by both parties, an appropriate order is issued and the contract is terminated. Cancellation of the agreement is possible only as a result of the consent of both parties.

With this form, the resigning person receives his advantages:

• Link to the Labor Code in the record, which is drawn up in the labor.
• Resigning guaranteed payments.

Compensation to the dismissed employee is paid in the amount specified in the contract. If the agreement does not say anything about the financial component, the payment will be equal to the amount established in the Labor Code. The compensation paid guarantees the employer that the agreement will not be cancelled. You will learn more about how to calculate compensation.

If an employee is unable to work, the employer may have the right to terminate the contract by mutual agreement.

After watching the video, you will learn how the dismissal procedure is carried out on the basis of mutual consent, what the employer relies on when deciding to release the employee from his position, how the situation is resolved peacefully, and what the resigned person can claim.

Dismissal without the desire of an employee

As a result of economic losses, many enterprises are seeking to reduce the number of employees. Naturally, employees usually do not agree with this state of affairs and are reluctant to leave their positions. In addition, dismissal may be the result of absenteeism, failure of certification, etc.

Dismissal for inappropriate position

Sometimes an employee is fired because of his job incompatibility. Suspension from the workplace is regulated by passing attestations. This state of affairs exists only in those firms and enterprises where there is a special document “Regulations on Certification”, with which all employees must be familiarized, and everyone signed, confirming familiarization.

Knowledge assessment is carried out by a special commission. Members of the evaluating community should be only professionals in their field, the leader is not required to be present.

The results of the certified person are issued by a separate order.

After passing the certification and receiving an unsatisfactory grade, the manager gives the employee a second attempt to retake the exam questions. In case of repeated failure, the employer has the right to demote his employee in a position. In most cases, the employee does not agree with this and quits.

Removal from office is not possible if attestation has not been announced in advance.

The refusal of the position provided is documented, and only after that the manager has the right to dismiss under the article in accordance with the Labor Code. The employer should be careful about dismissal, have a general idea of ​​​​the work of employees, take into account their positive qualities.

Dismissal for absenteeism

According to the Labor Code, the basis for removal from office may be a violation labor discipline including walking. It is allowed to be released from the workplace if the employee is absent for 4 hours without a good reason and an explanatory note.

As practice shows, the violator is not always fired immediately, most often the employee receives a warning, and then a reprimand with entry in a personal file. If absenteeism is repeated, the employee is fired. The exemption from the workplace is supported by several documents and facts: remarks, memos, complaints. The employee is fired within one month from the date of the misconduct.

Dismissal due to downsizing

Dismissal from office on the basis of staff reduction is a rather time-consuming and very costly process. The employer is obliged, according to labor law, to pay compensation to the dismissed person. The reduction occurs massively, taking into account the benefits to the enterprise.

The reduction of those employees who are dismissed must be notified two months before the actual dismissal. The employer has the right to offer the employee another type of employment or a change in working conditions:

• another workplace;
• reduction of working hours in the previous position.

If an employee is not satisfied with the conditions, he is laid off. The employee receives from the enterprise in addition to wages severance pay provided by law and compensation. For the organization, this is a huge financial cost, so the employer is looking for compromise conditions for himself and the employee.

Severance pay is paid on the last day of his tenure. It amounts to 3 average monthly salaries of an employee. If an employee applies to an employment center and cannot find a job, the employer will be forced to pay the former employee a monthly allowance. The amount of payments is equal to the size of his average salary for the last 2 months.

The employer cannot dismiss the following categories of citizens as a result of staff reduction:

• future mothers;
• mothers who raise children without a father;
• women who have at least one child under the age of 3 years;
• employees on vacation or on sick leave.

Dismissal as a result of liquidation of the enterprise

When a company is liquidated, all employees without exception are removed from their positions. You need 2 months notice to close the company.

The employer draws up a written notice in two copies, signed by both parties, one of which is with him, and the other is given to the employee. After 2 months, the employer issues an appropriate order and draws up the necessary records for employees in the labor.

Upon dismissal on this basis, all dismissed persons are paid compensation. Its size is determined as the amount of the severance pay, plus all payments due.

Dismissal on probation

An employee who is undergoing a probationary period may be dismissed from the workplace on his own initiative, as well as in case of unsatisfactory results, poor performance of duties or other faults.

The employer draws up the relevant document and submits it to the dismissed person for signature. Even if he does not sign, the order is still issued, and the employee is relieved of his post. After such a procedure, he is given a labor and a document with a calculation, on which the amount of the salary is indicated.

An employee who is on probation may resign on his own initiative. He must notify his employer of his decision in advance. The order is drawn up on the basis of an application from the resigning. The employer enters a mark in the labor and issues a calculation.

At many enterprises, working off is provided. When dismissed on this basis, they are 3 days, and the countdown starts from the date of application. At the request of the employer, the development may not take place.

Dismissal as a result of not passing the probationary period

If an employee failed to fulfill his direct duties during the probationary period, the employer has the right to dismiss him from office. The employee is sent a written document about the termination of the agreement. After that, an appropriate order is issued, a mark is made in the labor, the accounting department makes payments provided for by the Labor Code.

Dismissing an employee

Exemption from the workplace on this basis is not carried out immediately. First, a document is drawn up stating that the employee did not appear at the workplace, search activities begin. Calls are made to relatives and friends, notifications are sent to the addresses indicated in the personal file.

If the listed actions were unsuccessful, another person is assigned to the position of the missing employee. The employer draws up an employment agreement with the substitute worker. The effect of such an agreement is terminated when the main employee appears at the workplace.

Only a court can recognize a missing person as missing. Only in this case the agreement is terminated with him. An entry in the labor, the corresponding order can be issued several months or even years after the date of disappearance.

The relatives of the missing person receive the pay slip and salary. To do this, it is enough for them to provide documents that confirm the relationship with this person.

Documents issued upon dismissal

The employer, after terminating the employment agreement with his employee, is obliged to issue him the following documentation:

• work book with the appropriate marks (see also:);
• 2-personal income tax;
• certificate of average earnings for the last 3 months.

How to correctly say about dismissal. Psychological help

Dismissing an employee from their workplace is not always possible without consequences. Important tactfully explain to the employee that the company or enterprise no longer needs his services.

Retirement starts with explaining to the employee the reasons for his dismissal. Here we can say that he creates a bad atmosphere and does not fulfill his official duties. It is important that the employee understands that they are firing him not just like that, but for certain reasons. You can also try negotiation environment, manager and employee sit down for round table and discuss the situation.

The employer is obliged to inform the employee that a few days before his dismissal there will be another conversation with him. It is necessary to warn the employee so that he gathers his thoughts and calms down. The employer can inform the employee about his dismissal at the interview, to discuss the problems that his company could not solve and what exactly needs to be done to change this state of affairs.

Unexpected dismissal from work for a person is stressful. New challenges arise: the search for work and livelihoods. Important calmly and delicately tell the employee the bad news.

Before dismissing an employee, read the main provisions of the Labor Code. In any situation, you need to try to come to an agreement. All contentious issues between the dismissed and employers are resolved in a judicial proceeding.

The reasons for parting and breaking the contract can be different:

the person decided to change jobs;

retires;

moved for permanent residence to another region;

or he is not satisfied with the salary, etc.

The employee is not required to explain why he leaves. This does not affect either the procedure for terminating the contract itself or the obligations of the parties.
The procedure for dismissal of one's own free will in 2019 has not changed and remains the same, the main stages are as follows.

Step 1. Writing an application

It all starts with the fact that the worker submits an application for resignation. During this period, he has the right to change his mind and retain his seat. The employer is prohibited from persuading or otherwise influencing the intention of the worker to leave the team. Moreover, if the employee proves in court that the employer forced him to leave the organization by his actions, he will be able to be reinstated in his position with the payment of monetary compensation (see subparagraph “a” of paragraph 22 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 No. 2). In other words, the employee is not obliged to disclose the reasons for dismissal of his own free will - only to notify of his intention.

Step 2. Issuing an order

Upon the expiration of the notice period, a termination order is issued. labor relations. The basis for it in this case will be paragraph 3 of Article 77 of the Labor Code of the Russian Federation.
The employee is introduced to the document against signature. The rules for dismissal of an employee at his own request also provide that, if necessary, he is issued a copy of the order.

Step 3. Document preparation

These include:

• certificate of the amount of earnings for two years before leaving;
• work book and personal card () of the worker;
• note-calculation (according to the form No. T-61).

An example of a note-calculation in the form No. T-61

All three documents are given on the day of termination of the contract.

Step 4. Final settlement

The procedure for dismissing an employee of one's own free will implies that it is necessary to pay off a person on his last working day (see).

Rights and obligations of the employer

According to the law, a citizen who wants to quit applies to the management, specifying the date from which he intends to stop working. At the same time, the terms of dismissal at their own request may be different.
By general rule, the application must be written at least 2 weeks before the expected date of departure. This time is given to the business to find a replacement for the departing employee. But how much to work out upon dismissal of their own free will is decided directly by the employer.
The law allows him to release a subordinate without working off, but there are categories of workers whom the employer is obliged to release on the dates indicated in their applications:

without working off, it is necessary to let go of a person who retires or switches to face-to-face learning.

With regard to the outgoing director, the procedure is more complicated and depends on whether he is an employee, a shareholder or the sole founder. You can read more about the departure of directors in our material.

Calculations

A person who decides to leave work on their own is not entitled to severance pay. He will be given a salary (part of it) for the hours worked.
In addition, the worker can count on compensation upon dismissal of his own free will, for example, for unused vacation.
Upon dismissal of one's own free will, a bonus may be included in the calculation (if it was provided labor agreement) and compensation for unused vacation.

The nuances of terminating the contract

The employer can fire at his own request a person who himself wants it. Leaving during vacation on your own initiative is legal. It is impossible to terminate a working relationship at the initiative of the employer when a person is sick or resting. It can be more difficult to reinstate a job if a worker has exercised their right to withdraw a resignation letter. The employer for a month's vacation could well find a new employee and manage to conclude a contract with him labor contract, therefore, it is no longer possible to accept the former.
The general rules for terminating the agreement apply even if the term of the notice of departure coincided with the sick leave. And it doesn’t matter that at the time of its completion, the employee is no longer listed in the organization, the sick leave will be paid to him in accordance with all standards.

Express your opinion about the article or ask the experts a question to get an answer

The Labor Code lists a number of grounds in accordance with which the termination of an employment contract may occur. They are named in article 77 of the Labor Code of the Russian Federation. Based on it, the parties can terminate the contract on the initiative of any party. According to the Labor Code, the procedure for dismissing an employee obliges the employer to issue an order, with which the employee is introduced against signature. If the employee disagrees with the fact or wording in the order and refuses to sign, a corresponding mark is placed on the document. A copy of the order can be given to the employee if he insists on it.

Dismissal procedure

The day of termination of the contract is the last working day (the exception is cases when at the enterprise for an actually non-working employee, his position or workplace was retained).

A mark in the work book is made by the employer in accordance with the Labor Code, and the justification for dismissal is formulated indicating the article, part of the article or paragraph.

On the day of dismissal, the employer pays off the employee and issues documents to him. If the employee did not come for the documents, he is sent a notification informing him of the need to pick up the work book. The employer is obliged to return it to the employee who did not receive the book on time, and who applied for issuance later, within three days.

Termination of an employment contract by agreement of the parties

This aspect is regulated in Article 78 of the Labor Code of the Russian Federation. The termination of the contract by agreement of the parties begins with the fact that the employee submits an application where he asks to be dismissed under article 77 of the Labor Code of the Russian Federation. The wording "agreement of the parties" is preferable to dismissal of one's own free will. Especially if the next step for the employee is to register as unemployed. In this case, his allowance will be formed on the basis of the salary that was assigned to him on last place work.

The agreement on termination of the contract is, in fact, an addition to the employment contract. It can be signed by both the employer and his authorized person - the inspector of the personnel department. Such an agreement implies the absence of material claims between the parties to each other.

Fixed-term employment contract

Art. 79 of the Labor Code of the Russian Federation. The administration monitors the terms of such contracts, and three days before their completion, warns employees about this. The warning must be in writing and may be given in person or by mail. Fixed term contracts:

• to temporarily perform duties in place of absent employees. They end with the exit of a full-time employee to the workplace:
• for the performance of a certain scope of work, and stops after their completion;
• during seasonal work. Ends at the end of the season.

If such an agreement applies to a pregnant woman, then the existing procedure for dismissal from work obliges to extend its period until she becomes entitled to the appropriate leave. Other employees wishing to terminate the contract notify the management of this 3 days before the dismissal.

Termination of the employment contract at the initiative of the employee

Such termination is regulated by Article 80 of the Labor Code of the Russian Federation, and is, in fact, a dismissal of one's own free will. An employee may submit an application at any time. But he will be able to finish the work only in 2 weeks, and as a leader, in a month. The motives for filing an application can be any, but the deadlines for working out will not be met if:

• the employee is enrolled in an educational institution;
• receives a pension;
• moves;
• the employer violates the Labor Code;
• the employee has the right to avoid working off.

During this time, the employee has the right to change intentions and withdraw the application. In this case, he can be left at the enterprise if the vacancy is still free, and the new employee can still be refused admission. If the dismissal nevertheless took place, then the employer is obliged to pay off the employee by giving him documents and all payments due on the last day.

An employee who has not withdrawn the application, but has not received a calculation and does not insist on dismissal, is considered to continue working. His statement is then invalidated.

Termination of the employment contract at the initiative of the employer

The employer, according to Art. 81 of the Labor Code of the Russian Federation, there is a right to initiate the termination of an employment contract. Motivations (reasons) for this are general and additional. General ones apply to all contracts, while additional ones apply only to contracts of certain categories of employees. Termination of the contract may occur in the following circumstances:

• upon liquidation of the enterprise;
• due to downsizing or downsizing;
• due to the inconsistency of the worker with the position held (lack of qualifications, unconfirmed certification, inappropriate position of health, certified by a medical report);
• as a result of a gross violation of official duties, in particular: absenteeism, appearing at the enterprise in a state of intoxication, under the influence of drugs or toxic substances, non-compliance with commercial or state secrets;
• due to systematic failure to fulfill duties (by an employee who already has disciplinary sanctions);
• due to theft, waste, intentional destruction or damage to property;
• due to violation of labor protection standards, as a result of which, for example, an accident occurred;
• for immoral acts (for example, molestation, for educators);
• in case of loss of trust (in the financial sector);
• for making unreasonable decisions if they are expressed in the misuse of property (by the administration of enterprises or organizations and leading accountants);
• for providing falsified documents to the personnel department.

It is worth noting that the procedure for dismissal on one of the above grounds obliges the administration to have documents confirming the oversight or misconduct of the employee. For example, it is impossible to fire a drunk employee if his condition is not recorded by a certified medical professional, on certified medical equipment. The employer also cannot dismiss those who are on vacation or on sick leave (except in cases of liquidation of the enterprise).

An individual entrepreneur, having received an extract from the USRIP, may terminate contracts with all employees upon liquidation of the enterprise.

Additional grounds

Termination of the contract by the employer may be motivated by additional grounds. They are subject to other regulations. For example, educators or caregivers may be fired for using controversial or inappropriate parenting practices (such as corporal punishment or psychological abuse).

Dismissal can be punished by violation of the Charter educational institution or its programs (FZ "On Education"). Civil servants are fired for disclosing classified information containing state secrets or combining work with commercial activities(FZ "On public service").

Persons with whom the employer cannot terminate the contract

• pregnant employees;
• women raising children under 3 years old;
• single mothers with children under 14
• single mothers with disabled children under 18;
• other persons who take care of such children on their own.

Dismissal in the order of transfer

This type of dismissal occurs when two conditions are met:

• the employee has filed a corresponding application with the directorate;
• the potential employer provided guarantees for the employee's employment. They may take the form letter of guarantee, or a signed application for admission to another organization for a vacant position. If we are talking about an elected office - a document confirming the election.

Refusal to proceed

The procedure for dismissal of employees in this case is regulated by Art. 75 of the Labor Code of the Russian Federation. Most often, it is possible with a change of ownership, all kinds of reorganizations, a change in departmental affiliation, etc.

Any employee can submit a regular application in this case. This rule does not apply to the directorate and the chief accountant. With them, the contract is terminated at the initiative of the new department or the owner of the company, and only after he receives property rights. The deadline for termination is three months.

Changing working conditions

In the practice of enterprises, situations periodically arise when it is necessary to change the organizational and technological principles of the organization of the labor process. This is reflected in the change in the employment contract, although there is no fundamental transformation of the labor function. The employee must be notified two months before the implementation of the reforms, in writing. If the staff is not satisfied with the new conditions, they are obliged to recommend the work (in writing). The new position must correspond to the qualifications, skills and state of health of the employee. If there is no equivalent work, and the employee does not agree to work under the new conditions, the contract is terminated. (Article 73 of the Labor Code of the Russian Federation).

Sometimes there are even mass layoffs for this reason. In order to avoid such consequences and in the presence of a trade union in the organization, part-time work may be a temporary way out of the situation. The team can work like this for up to six months. If the employee is not going to work in a new situation, then according to Art. 81 the contract is terminated.

Dismissal for health reasons

If the state of the employee's body, supported by an appropriate medical document, does not allow him to occupy his previous position, he has the right to apply for a transfer to a position that meets his capabilities. If such a transfer is not possible in this organization, then according to Article 77, Clause 8, the contract is terminated. The package of documents required for this should contain:

• medical documentation confirming the condition of the employee;
• transfer application signed by the employee;
• documents on the absence of a vacancy suitable for him;
• refusal to transfer if the vacancy was nevertheless offered and considered unsuitable.

Relocation of employer or production

In order to reduce the cost of production, the owners of the enterprise sometimes have to transfer it to another locality. In this case, the owner is obliged to notify the employees in writing about the move. Having received a refusal to work in another locality, he is obliged to terminate the employment contract.

Circumstances beyond the control of the parties

How to act as a result of problems of this order is regulated by Art. 83 of the Labor Code of the Russian Federation. Circumstances can be various and their list is very wide. The most common include the following:

• conscription into the army;
• reinstatement of the former employee in the position (after the decision of the labor inspectorate or by court decision) As one of the options, the employee may be offered another vacancy;
• the impossibility of transferring to another job in the event of an attempt to transfer;
• not being elected to office;
• disability recognized according to medical documents;
• court sentence;
• disqualification,
• administrative punishment that does not allow the performance of duties;
• death;
• missing;
• State of emergency (war, catastrophe, disaster, etc.) recognized as such by government decisions;

In this case, the termination of the contract occurs on the basis of documented circumstances, for example: subpoenas, death certificates, court orders, medical documents, and others.

Violations at the conclusion of an employment contract

The labor inspectorate in the course of work can reveal violations in the preparation of contracts, in which case they are terminated using Art. 84 TC, for example:

• the contract was concluded with an employee who has a restraining order of the court to perform certain work or occupy a certain position;
• the work for which the contract is signed is prohibited to the employee due to health reasons;
• hired an employee without the required education.

In these cases, the procedure for formalizing the dismissal of an employee obliges the directorate to pay the dismissed employee a severance pay corresponding to the average earnings. Except in those cases when the personnel department was misled by the employee. If the contract is terminated with a foreigner, then information about the termination of the contract must come to the relevant authorities - the Federal Migration Service, the employment center, and the tax authority within three days.