Article 77 of the Labor Code of the Russian Federation, paragraph 2. Termination of an employment contract by agreement of the parties

Current version of Art. 77 of the Labor Code of the Russian Federation with comments and additions for 2018

Grounds for termination employment contract are:
1) agreement of the parties (Article 78 of this Code);
2) expiration of the employment contract (Article 79 of this Code), except for cases where the employment relationship actually continues and neither party has demanded its termination;
3) termination of an employment contract at the initiative of the employee (Article 80 of this Code);
4) termination of an employment contract at the initiative of the employer (Articles 71 and 81 of this Code);
5) transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position);
6) an employee’s refusal to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization, a change in the type of state or municipal institution(Article 75 of this Code);
7) the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);
8) refusal of the employee to transfer to another job, necessary for him in accordance with the medical certificate issued in the manner established by federal laws and other regulatory legal acts Russian Federation, or the employer does not have the appropriate work (parts three and four of Article 73 of this Code);
9) the employee’s refusal to be transferred to work in another location together with the employer (part one of Article 72.1 of this Code);
10) circumstances beyond the control of the parties (Article 83 of this Code);
11) violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code).
An employment contract may be terminated on other grounds provided for by this Code and other federal laws.

Commentary on Article 77 of the Labor Code of the Russian Federation

The commented article establishes the general grounds for termination of an employment contract, which are specified in other articles of Chapter 13 of the Labor Code of the Russian Federation. Including these:
- agreement of the parties. On this basis, the employment contract can be terminated at any time (see Article 78 and commentary thereto);
- expiration of the employment contract. A fixed-term employment contract is terminated upon expiration of its validity period (see Article 79 and commentary thereto). An exception is the case when the employment relationship actually continued and neither the employee nor the employer demanded its termination;
- termination of an employment contract at the initiative of the employee (see Article 80 and commentary thereto). This is the most common case of termination of an employment contract (the so-called “dismissal due to at will");
- termination of an employment contract at the initiative of the employer. This applies to cases of termination of an employment contract with an employee in the event of an unsatisfactory test result, if it was established by the employment contract (see Article 71 of the Labor Code of the Russian Federation and the commentary thereto), as well as a number of cases listed in Art. 81 Labor Code of the Russian Federation ();
- transfer of an employee at his request or with his consent to work with another employer. As provided in Art. 72.1 of the Labor Code of the Russian Federation, the transfer of an employee to permanent work with another employer is carried out at the written request of the employee or with his written consent with the simultaneous termination of the employment contract at the previous place of work. This also includes the transfer of an employee to an elective job (position), that is, the new place of work to which the employee is transferred provides for the formation of a management apparatus in it through elections. This is the only difference between this ground for termination of an employment contract and the transfer of an employee to work for another employer;
- refusal of an employee to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization, its reorganization, or a change in the type of state or municipal institution. The possibility of such a refusal is provided for in Art. 75 of the Labor Code of the Russian Federation (see commentary to this article);
- the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties. According to Art. 74 of the Labor Code of the Russian Federation if, for reasons related to changes in organizational or technological conditions labor, the terms of the employment contract determined by the parties cannot be preserved; they can be changed at the initiative of the employer (with the exception of changes in the employee’s labor function) in compliance with the established procedure (see). However, the employee may not agree to work under the new conditions, and may also refuse another job that the employer offered him (or another suitable job the employer may not have it). In this case, the employee is dismissed on this basis. The resolution of the Plenum of the Armed Forces of the Russian Federation on the application by the courts of the Labor Code of the Russian Federation clarifies that when resolving cases of reinstatement to work of persons whose employment contract was terminated under clause 7, part 1 of the commented article, or on the recognition of illegal changes to the terms of the employment contract determined by the parties when the employee continues to work without changing the labor function (Article 74 of the Labor Code of the Russian Federation), it must be taken into account that, based on Art. 56 of the Code of Civil Procedure of the Russian Federation, the employer is obliged, in particular, to provide evidence confirming that the change in the terms of the employment contract determined by the parties was a consequence of changes in organizational or technological working conditions, for example, changes in equipment and production technology, improvement of workplaces, structural reorganization of production, and did not worsen the situation employee compared to the terms of the collective agreement or agreement. In the absence of such evidence, termination of the employment contract under clause 7, part 1 of art. 77 of the Labor Code of the Russian Federation or a change in the terms of the employment contract determined by the parties cannot be recognized as legal;
- the employee’s refusal to transfer to another job, necessary for him in accordance with the medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work. This norm applies to an employee in respect of whom a medical report has been issued on the need for his temporary transfer to another job for a period of more than four months or on the need for permanent transfer, and in relation to managers, their deputies and chief accountants - regardless of the period of transfer established by the medical report (see. Art. 73 and commentary thereto);
- refusal of the employee to be transferred to work in another location together with the employer. The possibility of transferring an employee to work in another area together with the employer is provided for in Art. 72.1 of the Labor Code of the Russian Federation (see commentary to this article). Since if the employee refuses such a transfer, it becomes impossible to continue his work with this employer, the employment contract with him is terminated on this basis;
- circumstances beyond the control of the parties. A number of such circumstances (an employee’s call to military service or sending him to an alternative civil service that replaces it, the death of an employee, etc.) is established by Art. 83 of the Labor Code of the Russian Federation (see commentary to this article);
- violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation or other federal law, if this violation excludes the possibility of continuing work. According to Art. 84 of the Labor Code of the Russian Federation, an employment contract can be terminated due to violation of such rules as the conclusion of an employment contract in violation of a court verdict depriving a specific person of the right to occupy certain positions or engage in certain activities; lack of an appropriate education document if the work requires special knowledge in accordance with federal law or other regulatory legal act, etc. (see commentary to Article 84 of the Labor Code of the Russian Federation).

2. An employment contract may be terminated on other grounds provided for by the Labor Code of the Russian Federation and other federal laws.

Yes, Art. 278 of the Labor Code of the Russian Federation establishes a number of additional grounds for termination of an employment contract with the head of an organization. Article 307 of the Labor Code of the Russian Federation establishes that an employment contract with an employee working for an employer - individual, may also be terminated on the grounds provided for in the employment contract. An employment contract concluded for an indefinite period with a person working part-time can be terminated, in addition to the general grounds, in the case of hiring an employee for whom this work will be the main one (Article 288 of the Labor Code of the Russian Federation).

Also, for example, clause 3 of Art. 4 of the Charter on the discipline of employees of organizations operating especially radiation-hazardous and nuclear-hazardous production and facilities in the field of atomic energy use, establishes that an employment contract with an employee can also be terminated in the event of a one-time commission of one of the violations provided for in Art. 61 of the Federal Law of November 21, 1995 N 170-FZ “On the Use of Atomic Energy” (including in case of unauthorized abandonment of a nuclear installation, radiation source and storage facility by duty shift workers), if the consequences of such a violation pose a threat to safe work operating organization and pose a danger to the life and health of citizens and the environment.

In such cases, it is necessary to take into account that the dismissal of an employee must be carried out on the basis that determines its specificity. That is why the commented article contains a clause stating that an employment contract can be terminated for other reasons not specified in it.

3. According to Part 15 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225, upon termination of an employment contract on the grounds provided for in Art. 77 of the Labor Code of the Russian Federation, a record of termination of the employment contract is made in the work book with reference to the corresponding paragraph of Part 1 of Art. 77 Labor Code of the Russian Federation. The exception is cases of termination of an employment contract at the initiative of the employer and due to circumstances beyond the control of the parties (clauses 4, 10 of the commented article), when reference is made to the corresponding clause of Part 1 of Art. 81 Labor Code of the Russian Federation, Part 1, Art. 83 Labor Code of the Russian Federation.

So, in Art. 73 of the Labor Code of the Russian Federation, dedicated to the transfer of an employee to another job in accordance with a medical report, uses the wording “if he refuses the transfer or the employer does not have the appropriate job, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of this Code.” In Art. 74 of the Labor Code of the Russian Federation, in relation to changes in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions, and the employer’s obligation to offer the employee another job, states: “in the absence of the specified work or the employee’s refusal of the proposed work, the employment contract is terminated in accordance with paragraph 7 of part one of Article 77 of this Code."

Another comment to Art. 77 Labor Code of the Russian Federation

1. In accordance with Art. 6 of the Labor Code, the procedure for termination (termination) of employment contracts is within the jurisdiction of federal bodies state power. At the same time, as follows from Part 2 of the commented article, the grounds for termination of an employment contract are established by the Labor Code and other federal laws.

The commented article lists the general grounds for termination of an employment contract, additional ones are indicated in other articles of the Labor Code, as well as in other federal laws (see Articles 278, 288, 307, 312, 312.5, 336, 347, 348.11 of the Labor Code and commentary thereto ).

The division of the grounds for termination of an employment contract into general and special also occurs in relation to cases of termination of an employment contract at the initiative of the employer (see Article 81 of the Labor Code and the commentary thereto).

2. On termination of an employment contract by agreement of the parties, see Art. 78 TC and commentary to it.

3. On termination of a fixed-term employment contract due to the expiration of the term, see Art. 79 TC and commentary to it.

4. For termination of an employment contract at the initiative of the employee, see Art. 80 TC and commentary to it.

5. For termination of an employment contract at the initiative of the employer, see Art. Art. 71, 81 TC and commentary to them.

6. For the transfer of an employee to another employer, see Art. Art. 64, 70, 72.1 Labor Code and commentary thereto.

7. Along with the transfer of an employee to work for another employer, the Labor Code establishes as a basis for termination of an employment contract the transfer of an employee to an elective job (position). In terms of legal content, such a transition completely coincides with the case of termination of an employment contract due to the transfer of an employee to another employer (see Article 72.1 of the Labor Code and commentary thereto), since in both cases there is a change in the subject composition of the employment relationship. That's why general rules, provided by law for this general case, also apply to the situation that arises when an employee transfers to an elective job (position). Persons elected (selected) to an elective position cannot be denied an employment contract (see Article 64 of the Labor Code and commentary thereto); im not installed on new job test (see Article 70 of the Labor Code and commentary thereto).

At the same time, the legislator interprets the transition to elected work (position) as independent basis to terminate the employment contract. Consequently, the transition to an elective job (position) is a special case of innovation in the subject composition of an employment contract; it has certain specifics:

a) the presence of organizational and legal consequences established by law that occur in connection with the presence of this person in an elective paid position. Such consequences are provided only for certain cases of filling positions through election. So, by virtue of Art. 375 Labor Code for an employee released from work in an organization or individual entrepreneur in connection with his election to a position in the elective body of the primary trade union organization, after the end of the term of office, the previous job (position) is provided, and in its absence, with the consent of the employee, another equivalent job (position) with the same employer (see Article 375 of the Labor Code and a commentary thereto).

In accordance with Art. 25 of the Federal Law of May 8, 1994 N 3-FZ "On the status of a member of the Federation Council and the status of a deputy State Duma Federal Assembly Russian Federation" a member of the Federation Council, a deputy of the State Duma, who worked before being elected (appointed) as a member of the Federation Council, a deputy of the State Duma under an employment contract, after the termination of their powers, is provided with the previous job (position), and in its absence - another equivalent job (position) at their previous place of work or with their consent in another organization.

Similar norms are provided for in the laws of the constituent entities of the Russian Federation, which determine the status of deputies of the relevant legislative bodies;

b) features of the volitional content of the act of termination of an employment contract in connection with the transition to an elective job (position). If, when transferring an employee to another employer, coordination of the will of three subjects is required - the transferred employee, dismissing the employer and the employer entering into a new employment contract, then in the case under consideration the direction of the will of the employer terminating the employment contract does not matter: he is obliged to terminate the employment contract with the employee in in accordance with paragraph 5 of the commented article. However, the law does not specify the nature of the work for which the employee is selected. Consequently, the considered basis for termination of an employment contract is subject to application when electing an employee to any elective job or position (manager commercial organization, teacher of higher education organization vocational education and so on.).

Termination of an employment contract under clause 5 of the commented article may take place provided that the resigning employee does not object to this. If the employee insists on dismissal of his own free will, the employment contract with him is terminated on this basis (see Article 80 of the Labor Code and the commentary thereto).

8. On changes to the employment contract due to a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization, see Art. 75 TC and commentary to it.

9. For changes in the terms of the employment contract, see Art. 74 TC and commentary to it.

10. On the transfer of an employee to another job in accordance with a medical report, see Art. 73 TC and commentary to it.

11. On the concept of transfer to another area, see Art. 72.1 TC and commentary thereto.

12. On termination of an employment contract due to circumstances beyond the control of the parties, see Art. 83 TC and commentary to it.

13. On termination of an employment contract due to violation of the rules for concluding an employment contract established by federal laws, if this violation excludes the possibility of continuing this work, see Art. 84 TC and commentary to it.

14. Termination of an employment contract is formalized by order (instruction) of the employer. In accordance with the order (instruction), a record of the employee’s dismissal is made in his work book. For the general procedure for registering termination of an employment contract, see Art. 84.1 TC and commentary thereto.

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Article 77. General grounds for termination of an employment contract

The grounds for termination of an employment contract are:

1) agreement of the parties (Article 78 of this Code);

2) expiration of the employment contract (Article 79 of this Code), except for cases where the employment relationship actually continues and neither party has demanded its termination;

3) termination of an employment contract at the initiative of the employee (Article 80 of this Code);

4) termination of an employment contract at the initiative of the employer (Articles 71 and 81 of this Code);

5) transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position);

6) the employee’s refusal to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization, or a change in the type of state or municipal institution (Article 75 of this Code);

7) the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);

8) the employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer does not have the corresponding job (parts three and four of Article 73 of this Code);

9) the employee’s refusal to be transferred to work in another location together with the employer (part one of Article 72.1 of this Code);

10) circumstances beyond the control of the parties (Article 83 of this Code);

11) violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code).

An employment contract may be terminated on other grounds provided for by this Code and other federal laws.

Part three is no longer valid.

Article 78. Termination of an employment contract by agreement of the parties

An employment contract can be terminated at any time by agreement of the parties to the employment contract.

Article 79. Termination of a fixed-term employment contract

A fixed-term employment contract is terminated upon expiration of its validity period. The employee must be notified in writing of the termination of the employment contract due to its expiration at least three calendar days before dismissal, with the exception of cases where a fixed-term employment contract concluded for the duration of the duties of the absent employee expires.

An employment contract concluded for the duration of a specific work is terminated upon completion of this work.

An employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work.

An employment contract concluded to fulfill seasonal work during a certain period (season), terminates at the end of this period (season).

Article 80. Termination of an employment contract at the initiative of the employee (at his own request)

An employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless a different period is established by this Code or other federal law. Flow specified period begins the day after the employer receives the employee’s resignation letter.

By agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal.

In cases where an employee’s application for dismissal on his initiative (at his own request) is due to the impossibility of continuing his work (enrollment in educational organization, retirement and other cases), as well as in cases established violation the employer is obliged to terminate the employment contract within the period specified in the employee’s application.

Before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out unless another employee is invited in his place in writing, who, in accordance with this Code and other federal laws, cannot be denied an employment contract.

Upon expiration of the notice period for dismissal, the employee has the right to stop working. On the last day of work, the employer is obliged to issue the employee a work book and other documents related to the work, upon the employee’s written application, and make a final payment to him.

If, upon expiration of the notice period for dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues.

Article 81. Termination of an employment contract at the initiative of the employer

An employment contract can be terminated by the employer in the following cases:

1) liquidation of an organization or termination of activities by an individual entrepreneur;

2) reduction in the number or staff of employees of an organization or individual entrepreneur;

3) the employee’s inconsistency with the position held or the work performed due to insufficient qualifications confirmed by certification results;

4) change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);

5) repeated failure by the employee to comply without good reasons labor responsibilities if he has a disciplinary sanction;

6) one-time gross violation employee's job duties:

a) absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);

b) the employee appears at work (at his workplace or on the territory of the organization - the employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication;

c) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;

d) committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) a violation by an employee of labor safety requirements established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of such consequences;

7) commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer;

7.1) the employee’s failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or unreliable information about his income, expenses, property and property-related liabilities, or failure to provide or provide knowingly incomplete or unreliable information about income, expenses, about the property and property obligations of their spouse and minor children, opening (availability) of accounts (deposits), storing cash Money and valuables in foreign banks located outside the territory of the Russian Federation, possession and (or) use of foreign financial instruments by an employee, his spouse and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and The Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer;

8) an employee performing educational functions has committed an immoral offense that is incompatible with the continuation of this work;

9) the adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;

11) the employee submits false documents to the employer when concluding an employment contract;

12) has become invalid.

13) provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization;

14) in other cases established by this Code and other federal laws.

The procedure for conducting certification (clause 3 of part one of this article) is established labor legislation and other regulatory legal acts containing labor law norms, local regulations, adopted taking into account the opinion of the representative body of workers.

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job) which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.

Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer.

It is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary incapacity for work and while on vacation.

Article 82. Mandatory participation of the elected body of the primary trade union organization in the consideration of issues related to the termination of an employment contract at the initiative of the employer

When making a decision to reduce the number or staff of employees of an organization, individual entrepreneur and the possible termination of employment contracts with employees in accordance with paragraph 2 of part one of Article 81 of this Code, the employer is obliged to notify the elected body of the primary trade union organization in writing about this no later than two months in advance before the start of the relevant activities, and if the decision to reduce the number or staff of employees may lead to mass dismissal of workers - no later than three months before the start of the relevant activities. The criteria for mass layoffs are determined in industry and (or) territorial agreements.

Dismissal of employees who are members of a trade union on the grounds provided for in paragraphs 2, 3 or 5 of part one of Article 81 of this Code is carried out taking into account the reasoned opinion of the elected body of the primary trade union organization in accordance with Article 373 of this Code.

When conducting certification, which may serve as a basis for the dismissal of employees in accordance with paragraph 3 of part one of Article 81 of this Code, the certification commission a representative of the elected body of the relevant primary trade union organization is required to be included.

A collective agreement may establish a different procedure for the mandatory participation of the elected body of the primary trade union organization in the consideration of issues related to the termination of an employment contract at the initiative of the employer.

Article 83. Termination of an employment contract due to circumstances beyond the control of the parties

The employment contract is subject to termination due to the following circumstances beyond the control of the parties:

1) conscription of an employee for military service or sending him to an alternative civilian service that replaces it;

2) reinstatement of an employee who previously performed this work, by decision of the state labor inspectorate or court;

3) failure to be elected to office;

4) condemnation of the employee to punishment that precludes continuation previous job, in accordance with the court verdict that has entered into legal force;

5) recognition of the employee as completely incapable of labor activity in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation;

6) death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as deceased or missing;

7) the occurrence of emergency circumstances that prevent the continuation labor relations(military action, disaster, disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a government body of the corresponding subject of the Russian Federation;

8) disqualification or other administrative punishment that precludes the employee from fulfilling his duties under the employment contract;

9) expiration, suspension for a period of more than two months or deprivation of the employee special law(licenses, management rights vehicle, the right to carry weapons, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of the employee fulfilling his duties under the employment contract;

10) termination of admission to state secret if the work performed requires such permission;

11) reversal of a court decision or cancellation (declare illegal) of the decision of the state labor inspectorate to reinstate the employee at work;

12) has become invalid.

13) the occurrence of restrictions on engaging in certain types of labor activity established by this Code, other federal law and excluding the possibility of an employee fulfilling his duties under an employment contract.

Termination of an employment contract on the grounds provided for in paragraphs 2, 8, 9, 10 or 13 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (either a vacant position or a job that corresponds to the employee’s qualifications, or and a vacant lower position or lower paid job) that the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

Part three is no longer valid.

Article 84. Termination of an employment contract due to violation of the rules for concluding an employment contract established by this Code or other federal law

An employment contract is terminated due to a violation of the rules for its conclusion established by this Code or other federal law (clause 11 of part one of Article 77 of this Code), if violation of these rules excludes the possibility of continuing work, in the following cases:

conclusion of an employment contract in violation of a court verdict depriving a specific person of the right to occupy certain positions or engage in certain activities;

concluding an employment contract to perform work that is contraindicated to this employee for health reasons in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation;

lack of an appropriate document on education and (or) qualifications, if the work requires special knowledge in accordance with federal law or other regulatory legal acts;

concluding an employment contract in violation of a resolution of a judge, body, official authorized to consider cases of administrative offenses, disqualification or other administrative punishment that precludes the possibility of an employee fulfilling duties under an employment contract, or concluding an employment contract in violation of the restrictions, prohibitions and requirements established by federal laws relating to the involvement in labor activities of citizens dismissed from state or municipal service;

concluding an employment contract in violation of the restrictions on engaging in certain types of labor activity established by this Code or other federal law;

in other cases provided for by federal laws.

In the cases provided for in part one of this article, the employment contract is terminated if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job) which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

If a violation of the rules for concluding an employment contract established by this Code or other federal law is not due to the fault of the employee, then the employee is paid severance pay in the amount of average monthly earnings. If a violation of these rules is due to the fault of the employee, then the employer is not obliged to offer him another job, and severance pay is not paid to the employee.

Article 84.1. General procedure for registering termination of an employment contract

Termination of an employment contract is formalized by order (instruction) of the employer.

The employee must be familiarized with the order (instruction) of the employer 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 specified order (instruction). In the event that an order (instruction) to terminate an employment contract 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).

The day of termination of the employment contract in all cases is the last day of work of the employee, with the exception of cases where the employee did not actually work, but in accordance with this Code or other federal law, he retained his place of work (position).

On the day of termination of the employment contract, the employer is obliged to issue the employee a work book and make payments to him in accordance with Article 140 of this Code. Upon written application by the employee, the employer is also obliged to provide him with duly certified copies of documents related to work.

An entry in the work book about the basis and reason for termination of the employment contract must be made in strict accordance with the wording of this Code or other federal law and with reference to the relevant article, part of an article, paragraph of an article of this Code or other federal law.

If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book. The employer is also not responsible for the delay in issuing the work book in cases of discrepancy last day work with the day of registration of termination of employment relations upon dismissal of an employee on the basis provided for in subparagraph "a" of paragraph 6 of part one of Article 81 or paragraph 4 of part one of Article 83 of this Code, and upon dismissal of a woman whose employment contract was extended until the end of pregnancy or until the end of maternity leave in accordance with part two of Article 261 of this Code. Upon written request from an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee’s application.

Part three

Section III. Employment contract

Chapter 13. Termination of an employment contract

An employment contract can be terminated by agreement between the employee and the employer. Such dismissal is regulated by Article 78 of the Labor Code of the Russian Federation. Find out what the law says and read expert opinions.

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What are the features of dismissal by agreement of the parties: Labor Code of the Russian Federation

The basis for termination of an employment contract (ET) may be an agreement of the parties. Agreement between the parties means that the employee and the employer, who are the parties to the labor relationship, have come to a certain agreement. They decided to terminate the TD on terms satisfactory to both parties.

What is the difference between dismissal by agreement and regular dismissal?

By mutual agreement, the TD can be terminated at any time. For example, when an employee is present at his workplace, is on any type of leave (regular, without pay, educational, child care), on sick leave, and so on.

The procedure for dismissal by mutual agreement often raises many questions among employers and personnel officers. Expert recommendations on the application of the dismissal clause by agreement of the parties to the Labor Code of the Russian Federation will help you understand the sequence of the procedure.

TC dismissal by agreement of the parties: is the employee entitled to any additional payments other than those guaranteed by law

Upon termination of a contract, the employee must be paid wages, compensation for unused vacations, guaranteed bonuses and the like.

Labor Code: dismissal by agreement of the parties does not oblige the employer to pay additional amounts to the employee, but such payments may be provided for in the text of the written agreement. Their size may not be tied to certain types of payments. For example:

  • It is possible not to indicate that compensation in the amount of three salaries will be issued.
  • You can add the wording: “Pay compensation in the amount of 150 thousand rubles.”

If the organization has a collective agreement, it may provide additional types payments upon dismissal of employees.

★ The HR System expert will tell you how to determine the amount and pay severance pay upon dismissal by agreement of the parties

Article of dismissal by agreement of the parties to the Labor Code of the Russian Federation: how it is applied in practice

It is possible to dismiss by agreement of the parties by legal means. For example:

  1. An agreement is concluded between the employee and the employer to terminate the employment contract by agreement; this document must be prepared in writing.
  2. The parties agree on the date of termination of the relationship.
  3. The employee and the employer agreed on the basis for termination of relations under paragraph 1 of Art. 77 (Article 78) of the Labor Code of the Russian Federation.
  4. The document is signed by the parties simultaneously at the time of its conclusion.

The Labor Code, by agreement of the parties, Article 78 of the Labor Code of the Russian Federation, does not regulate a special procedure for conducting the procedure. But you can do this:

Step 1. After entering into a written agreement, prepare an order.

Step 2. Based on the order, make an entry in the work book and duplicate it in the employee’s personal card.

Step 3. On the day of termination of the relationship, give the employee a full payment and documents related to the work.

Positive aspects of dismissal by agreement of the parties: Article of the Labor Code

For an employee

Termination of a trade agreement by agreement between the employee and the employer has a number of advantages. Thus, for an employee, the article of the Labor Code allows dismissal by agreement of the parties not to work for two weeks, as in the case of dismissal of one’s own free will.

For the employer

Labor Code of the Russian Federation: dismissal by agreement of the parties is also beneficial for the employer, who will not have to coordinate the termination of the trade union with the trade union organization. In addition, the agreement cannot be canceled unilaterally. This is the most conflict-free way to terminate an employment relationship if you follow the dismissal procedure.

Agreement between the parties means that the employee and the employer, who are the parties to the labor relationship, have come to a certain agreement on the termination of the labor contract on terms that suit both parties. Dismissal on this basis has a number of features and, to a certain extent, is beneficial for both the employee and the employer.

Leaving a job “on your own” is the most common reason for dismissal. There are two interesting points here:

  1. Very often there are situations when an employee is simply forced to write a statement of his own free will, so as not to have any legal proceedings in the future.
  2. Cases of “wrongful dismissal” are common.

We will examine the first point in more detail later. As for the second, the main reason lies in the incorrect application of some norms of the Labor Code.

"Correct" article

Despite the main basic principles regulations, namely “absolute clarity in the wording”, very often misunderstandings arise. Under what article should dismissal be made? Clause 3 art. 77 or art. 80 Labor Code of the Russian Federation?

But in fact there is no problem in understanding here. One is considered procedural (how to legally change jobs correctly), and clause 3 of Art. 77 of the Labor Code of the Russian Federation - normative, i.e. indicates the fact itself.

Almost everyone knows that you need to work for 2 weeks before leaving the organization. Let me immediately explain one very important nuance.

Dismissal (clause 3 of Article 77 of the Labor Code of the Russian Federation) does not provide for any work.

You just need to notify the employer no later than this period. Of course, during this period you will have to perform your functions at the enterprise. Hence the erroneous opinion. But let us clarify that compulsory work for half a month is optional.

You can go on sick leave or vacation, warning your employer about future dismissal. In this case, there can be no processing.

Clause 3 art. 77 Labor Code of the Russian Federation: entry in the work book

The most common mistake is incorrect entry. Very often, clerks incorrectly indicate the article in work book. After this, many former employees face a problem during new employment or when applying for a pension. Clerks put the mark “dismissed on the basis of Art. 80 Labor Code of the Russian Federation."

But the legislation does not provide for the termination of obligations on the basis of this article. It is important to see the order to terminate the contract. If it is based on the same article, then legally the employee is not fired, because legal procedure was not followed.

Hence the problem for the former employee: he may not be hired for the new position. You must definitely contact former organization for correction. The document must contain the following entry: clause 3, part 1, art. 77 of the Labor Code of the Russian Federation (termination of an employment contract at the initiative of the employee).

But let's move on to another common mistake.

Clause 3 art. 77 Labor Code of the Russian Federation: entry into the labor record. Writing sample

Clerks and directors often face a similar problem. The article seems to be indicated accurately, but the entry is still invalid. The fact is that the wording is as follows: “P. 3 tbsp. 77, dismissal of one’s own free will.”

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

Therefore, the writing sample will look like this: “Dismissed under clause 3 of Art. 77 of the Labor Code of the Russian Federation - termination of an employment contract at the initiative of the employee.”

The record is radically modified, although the underlying reason remains the same.

Consent of the parties: what is the difference?

There are situations when an employee is forced to write at his own request. The reasons, of course, are purely individual. The new director is selecting personnel, the employee is no longer happy, there is a reorganization, pregnant women are often forced to do this, etc. The Labor Code has two paragraphs of Article 77, which seem equivalent to ordinary citizens:

  • By agreement.
  • At your own request.

Many professional lawyers involved in labor disputes know that termination of a contract in the second case can be challenged in court. It is enough to provide arguments and prove that the employee was subjected to psychological impact by the enterprise administration. Consequently, the termination order will be canceled in court, and the employee will be reinstated with all rights.

Clause 1 art. 77 of the Labor Code of the Russian Federation does not provide for such a loophole. It just follows from the fact that the employee and the employer have any conflicts and disagreements.

Usually, former employee any “compensation” funds are paid in order to terminate the employment relationship peacefully and without consequences for both parties. In court, all arguments will be useless. It is almost impossible to recover.

How to resign correctly

To do this, you must notify the employer 2 weeks in advance. If the relationship is trusting, then this can be done orally. But in the event of a conflict, it will be difficult to prove this in court later. Therefore, to avoid misunderstandings, statements should be written.

Writing sample

No special requirements or special legal education required. You can write the following to the manager: “In accordance with Art. 80 of the Labor Code of the Russian Federation, I ask you to dismiss me from my position.”

Below is the number and signature. From the date of receipt by the manager or other authorized official This application will count down the two-week period.

Everyone should know this

It is important to know two very important things:

  • It is not necessary to indicate regulations when writing such a statement.
  • No one has the right to prohibit someone from resigning of their own free will.

They don't sign the application. What to do?

It’s a fairly common practice when a person wants to change a company for one reason or another, but they start putting spokes in his wheels: “there’s no director in place,” “let’s do it, I’ll sign it later,” etc. And after a while they refuse with the wording “there is no one to work”, “I do not agree to your dismissal”. Some are so dishonest that you can hear the answer “I didn’t see your application” and so on.

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

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

The first option will be faster, because... the two-week period will begin the day after registration. The employer will not be able to later claim that he “did not see and did not know.” The duty of the secretary or other authorized person to notify the authorities as soon as possible.

With the option of sending through the Russian Post service, everything will take a little longer. The two-week period will begin on the day the employer receives the letter, not on the date it is sent. When the application has reached the addressee, it will be indicated in the notification, which means the employee will know the exact date receipt.

After this, the director will have to release the employee. Clause 3 art. 77 of the Labor Code of the Russian Federation obliges us to do this.

If you change your mind, what should you do?

Such cases are also not uncommon. The reasons can be different: there was no agreement on a new place of work, the director realized that the employee really wanted to leave, and improved working conditions and much more.

To cancel an application that has already been submitted, you must write and also officially register a new one in accordance with all the rules. No matter how good the relationship between him and the employer may seem to the employee, it is important to know the main rule: the application for refusal of dismissal must be submitted officially, i.e. V in writing through a secretary or by mail.

What is it for?

There are often cases when the employer is not against such dismissal. But he had no reason to do it himself. And then the employee himself brings such a letter of resignation under clause 3 of Art. 77 Labor Code of the Russian Federation.

Then after some time the employee announces that he has changed his mind. The director, knowing the legislation, says with joy on his face that “I understand everything, continue working.”

After a two-week period from the date of writing, the application is issued in accordance with clause 3 of Article 77 of the Labor Code of the Russian Federation - at one’s own request.

There is no use going to court. Legally, the director did everything correctly. One of the principles of law came into play here: “Most moral principles become legal norms, but not all.”

When refusing, there is one very important nuance. If from the moment of submission to his refusal a written invitation was sent to another person to accept this position, then it will no longer be possible to cancel it.

Here the law will be on the side of the future employee, i.e. someone who has already been invited. Because Now no one has the right to refuse him employment.

Therefore, it is necessary to weigh everything carefully before writing a letter of resignation. There are times when there is no way back.

Where to defend labor rights

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

  • Contacting the Protection Inspectorate labor rights.
  • Statement of claim to court.
  • Contacting the prosecutor's office.

A citizen of the Russian Federation whose rights have been violated may appeal simultaneously to all competent authorities. Administrative punishment is provided for the guilty person. But the citizen himself does not have the right to initiate such a case through the court. This can only be done by either the prosecutor's office or Labour Inspectorate. To do this, you need to send a complaint to these structures.

In parallel, the employee has the right to file a lawsuit in order to receive compensation for moral damage or any other payment from the employer, if provided by law, because administrative sanctions do not provide for this. All fines issued by the prosecutor's office will go to the state. Therefore, it is better to contact the regulatory authorities in order to bring the offender to justice and go to court for moral or other payments.

Cases exempt from service

IN Labor Code there are reasons that allow an employee to leave earlier than the deadline at 14 calendar days. Let's say right away that the report begins the next day after the relevant notification is submitted.

These include:

  • Employee training.
  • Mutual agreement.
  • Violation of labor rights.
  • Other.

The first two are more or less clear. As for violation of labor rights, this does not mean Subjective opinion employee. This refers to the official holding of the employer to responsibility. And it must necessarily concern the employee who decided to leave earlier than expected.

When will the payment be made?

After an official order, all payments for time worked must be made on the day of dismissal. And this is not a “gift” from the company, it is an obligation according to the Labor Code. Violation of this norm is a reason to defend your rights and contact regulatory authorities. In addition to salary, the employee is entitled to payment for unused vacation. You can calculate it yourself if you know your average monthly earnings and the exact number of days worked. Payments under it must also be made on the day of the dismissal order.

The only exception to this rule is sick pay. From the moment the medical certificate is provided, the accounting department recalculates within 10 days and pays it on payday at the enterprises.

If the employee is not on site on the day of payment (business trip, vacation, sick leave), then all payments must be made no later than one day after his request.