- a mandatory stage of termination of an employment contract at the will of the employee, described in the Labor Code of the Russian Federation. The material below discusses the most significant points regarding such a warning.
Regulatory acts establishing the procedure for notice of dismissal
Constitution of the Russian Federation in Art. 37 provided for a right to work, not an obligation. That is, work is free, no one can be forced to do it - and this means that the employee can decide to end the employment relationship with the employer at any time, and the latter has no right to interfere with this.
The procedure for implementing this decision is established in the Labor Code of the Russian Federation. So, clause 3. part 1 art. 77 of the Labor Code considers the employee’s desire to be the grounds for termination of an employment contract, and Art. 80 describes the entire process of dismissing an employee at his own request.
At the same time, the answers to most of the questions that arise for the employer during the execution of the dismissal procedure at the initiative of the employee are contained in the letter of Rostrud “On the procedure for dismissal ...” dated September 5, 2006 No. 1551-6. In particular, it talks about acceptable methods of warning about dismissal and clarification of the provisions of Art. 81 of the Labor Code on termination of an employment contract with a temporarily disabled or on vacation employee.
Can they refuse to be fired at their own request?
The Constitution of the Russian Federation and the Labor Code give a completely clear answer to this question: no one can be forced to work. At the same time, Art. 77 and 80 of the Labor Code of the Russian Federation establishes a clear procedure that must be followed by the parties to labor relations for their legal termination. Thus, the employee is obliged to properly notify the employer of his intention - to inform in writing about the upcoming dismissal at least 2 weeks in advance, with the exception of certain cases (for example, upon retirement).
According to Art. 80 of the Labor Code of the Russian Federation, upon dismissal of his own free will, the employee ceases his work after the specified period, and the employer makes all payments due in this case, issues a work book and related documents. Before the expiration of the 2-week period, the able-bodied employee must continue to perform his job duties, otherwise failure to show up for work may be regarded as absenteeism - and this is fraught with subsequent disciplinary action up to and including dismissal on negative grounds.
The procedure for informing an employer about voluntary dismissal
A warning about such dismissal always occurs in writing (Article 80 of the Labor Code), while the Labor Code of the Russian Federation does not contain rules on how exactly the employer should receive the employee’s application for the upcoming dismissal. It can be delivered in person, for example by dropping it off at the HR department, or sent by mail. In any case, such statements are subject to registration so that subsequently the parties do not have questions regarding the calculation of the period of service allocated for termination of employment relations in accordance with the law.
Don't know your rights?
The application must clearly express the employee's desire to terminate the employment relationship. It is appropriate to use the wording “dismiss” or “terminate the employment contract”, but the beautiful phrase “I resign” is simply irrelevant. Moreover, it, like other similar expressions, allows for ambiguous interpretation of intent (for example, it could be interpreted as a request for administrative leave).
The possibility of submitting an application by mail is not directly described in the Labor Code of the Russian Federation, but there are no prohibitions on this either. Explanations on this issue are given in letter of Rostrud No. 1551-6. It says that the application can be sent by registered mail. In this case, the starting point of the working period will be considered the day of delivery of the letter indicated in the notice of receipt of the letter by the addressee.
In addition, Art. 6 of the Law “On Electronic Signatures” dated April 6, 2011 No. 63-FZ, equated a document certified with an electronic signature to a paper document. This means that the employer can also be warned of dismissal by a letter sent by e-mail (for example, corporate) mail, if it is certified by the employee’s digital signature.
When do you need to give notice of voluntary resignation?
Labor Code of the Russian Federation in Art. 80 establishes a standard two-week period for informing the employer in advance about the dismissal of an employee. If the application is sent by mail, then it is worth adding a few days to the date of dismissal for its delivery. The approximate deadline for receiving a valuable letter can be found at the post office; the period will be counted from the moment the postal item is delivered.
However, shorter notice periods are also possible. In particular, the Labor Code of the Russian Federation makes it possible to inform management about the upcoming dismissal 3 days before it:
- employees on probation (Article 71);
- seasonal workers (Article 296);
- employees working under a fixed-term employment contract concluded for less than 2 months (Article 292).
In addition, there are often cases when an employee wants to terminate the contract literally the very next day and leave without working. According to Art. 80 of the Labor Code of the Russian Federation, the employer has no right to interfere with such a desire in the following cases:
- If it is impossible to continue work. Dismissal with subsequent retirement and enrollment in an educational institution is mentioned here, but the list is left open, that is, there is room for agreement between the parties. Resolution of the plenum of the Supreme Court of the Russian Federation “On the application by the courts of the Russian Federation...” dated March 17, 2004 No. 2 (hereinafter referred to as Resolution No. 2) supplements this list with one more reason - the departure of the military spouse to a new duty station.
- In case of violation by the employer of labor law, collective or labor agreements. Here it is also worth referring to Resolution No. 2, which indicates that the fact of violation of these norms must be recorded by government bodies monitoring compliance with labor law standards, or by trade unions.
An employee can give notice of dismissal while on vacation or sick leave. Norms Art. 81 of the Labor Code, which prohibit termination of an employment contract during specified periods, only applies to dismissal at the initiative of the employer.
A warning is not a dismissal
The mere fact of informing about dismissal does not mean termination of the employment contract. Based on Art. 80 of the Labor Code of the Russian Federation, it will be terminated only after a two-week or other working period agreed upon by the parties.
Throughout this time, the employee has the right to change his decision and cancel his resignation, except in the case of an official (written) invitation to replace him with another employee who cannot be denied employment. Moreover, if the employee, despite his warning, continues to work after the end of the designated period, this will mean the preservation of the employment relationship and the continuation of the contract.
In summary, we note that correct and timely warning to the employer about the upcoming termination of the contract minimizes the risk of the latter creating obstacles to dismissal and, as a result, relieves both parties of the need to protect their interests in court.
Labor legislation gives a clear answer to the question “how far in advance must an employer notify an employee of impending dismissal due to staff reduction or liquidation of the organization.” This period must be at least two calendar months. However, as in any legislation, and Russian legislation is no exception, there are loopholes that help regulate this indicator in one’s own interests.
The employer is not obliged to warn the employee about dismissal if he violates the Labor Code or contract norms, for example, absenteeism, showing up at work drunk, etc. The management of the organization records the violation, conducts an internal investigation and, in accordance with the established procedure, terminates the employment relationship.
The management of an organization that has made a decision to reduce staff or terminate the activities of a business entity issues an order on upcoming changes. It must list the names of workers subject to dismissal or reduction, indicate the date of the last working day, as well as officials responsible for the procedure for personnel changes.
The employer is obliged to notify the Employment Center of future dismissal of employees. In the case of single reductions, this must be done in two calendar months, in the case of mass reductions - three. The legality of your actions must be confirmed by notice of dismissal. If it is not signed by the citizen himself, such a document is illegitimate, and the dismissal procedure will be considered illegal.Authorized representatives must notify employees of dismissal two calendar months in advance. There is a generally accepted written form of notification, which indicates the reasons for termination of the employment relationship, the date of the last working day, and the day the employee familiarized himself with the document is recorded. The notification must be sealed with the personal signature of the person being dismissed.
If an employee refuses to sign a notice of layoff, it is necessary to create a labor commission authorized to issue an act of refusal. This document must indicate the basis for termination of the employment contract (liquidation of the organization, reduction of staff), the date of notification of the citizen about dismissal, position, full name of the component. The act must be endorsed by three officials and also affixed with the company seal. In this case, it is an accompanying document for notifying the Employment Center.
In what cases can an employment contract be terminated without notifying the employee of dismissal?
There are a number of circumstances in which an employment relationship may be terminated without notice. Among them:
- conscription of workers into the army;
- reinstatement of a former employee to his position by a court decision or as a result of the work of the labor commission;
- the inability of an employee to move to a new place of work due to a transfer;
- the worker is recognized as disabled during a medical examination;
- the employer or employee is found guilty of committing a crime and is imprisoned for a certain period of time as punishment;
- disqualification of an official;
- an administrative penalty was imposed on the employee in the form of a restriction on the performance of certain activities;
- death or recognition as missing by one of the parties to the labor relationship;
- state of emergency in the country (war, natural disaster, etc.).
In order to further protect the rights of workers at the enterprise, the collective agreement may stipulate longer periods for notifying an employee of an upcoming dismissal due to a reduction in the number of employees of the enterprise or the cessation of the activities of a business entity. If the contract contains norms regulating notice of dismissal 3, 4, 5 months in advance, etc., they are mandatory for the employer and are dominant in comparison with the norms of labor legislation.
By concluding an individual labor contract with an employer, every citizen has the right to insist on increasing the notice period for possible dismissal as much as he wishes. This clause will be included in the current contract only if both parties come to an agreement and approve it.
When must an individual entrepreneur notify an employee of an upcoming layoff?
Article 307 of the Labor Code allows the individual entrepreneur and the worker to specify notice periods for dismissal in the employment contract. This means that a notification to a citizen can be presented earlier than two calendar months, if this is specified in the contract.
There are a number of exceptions when notice of dismissal for an individual entrepreneur is not required at all. The procedure for terminating the activities of an individual entrepreneur (hereinafter referred to as individual entrepreneur) differs significantly from that of an enterprise or organization and is simplified. If the individual entrepreneur has no debts to government agencies and contractors, the tax service makes an appropriate decision within five days after submitting an application requesting to terminate business activities.
The entrepreneur must also report his intentions to the employment service at the same time as the tax office. The presence of employees on the individual entrepreneur's staff list is not a basis for refusing to issue such a decision. Also, the tax service and the Employment Center are not authorized to check compliance with the procedure for dismissing individual entrepreneurs. How much time will pass from the moment the worker is notified until the moment of dismissal, the individual entrepreneur decides at his own discretion.
If individual entrepreneurs terminate their economic activities in court, employment contracts with workers may be terminated upon entry into force of a court decision, without prior notice. The same procedure applies to situations in which the individual entrepreneur did not want to renew the license to carry out any activity.
The Labor legislation does not contain a list of certain norms and issues that must be agreed upon between the individual entrepreneur and the employee, as well as how much time should pass from the moment the employee is notified of the reduction or dismissal until its actual implementation. This indicates a gap in the legislative framework, which makes workers employed by individual entrepreneurs legally unprotected.
General rules applicable to individual entrepreneurs
The gap in labor legislation does not at all give individual entrepreneurs the right to be willful and act incorrectly towards their workers. There are general theoretical rules that apply to the labor branch of law as well.
The analogy of the law is one of the ways to compensate for gaps in the regulatory framework. In this case, it is necessary to be guided by similar rules of law that govern similar labor relations. This means that if the employment contract does not have rules regulating the procedure for dismissal, including notice periods, the employer must act in accordance with the general rules, namely, follow the procedure for dismissing employees for legal entities. Accordingly, the citizen must be warned 2 calendar months in advance about the termination of the employment relationship.
The analogy of the law is not only described on the pages of legal textbooks, but is also reflected in the Civil Procedure Code of the Russian Federation (Part 3, Article 11). Civil law is directly related to resolving controversial issues in labor relations. The Labor Dispute Commission is competent to resolve disagreements between the employee and the employer until the termination of the employment relationship. After the employment contract has been terminated, the violated rights can only be restored by filing a claim in a civil court.
If circumstances develop in such a way that the owner of the company does not have the necessary amount of time to comply with the entire procedure for dismissal or reduction of an employee, then the relationship must be terminated either on the basis of mutual agreement of the parties or by paying compensation for the premature termination of the employment contract. It is worth considering that by canceling the contract by mutual At the request of the participants in the labor relationship, compensation payments to the dismissed employee are not due.
In case of violation of the dismissal or layoff procedure, citizens can appeal the employer’s actions by contacting the labor inspectorate, which will most likely initiate an appropriate inspection at the enterprise. Illegally dismissed employees can be reinstated to work in the organization, demand payment of compensation for forced absence, and also compensate for moral damages in court.
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Labor legislation obliges the head of an organization to adhere to a number of rules when dismissing employees. As a rule, the local acts of organizations and the employment contract state the employer’s obligation to notify about the impending dismissal of an employee. In order to reduce or eliminate possible disputes and claims from those being dismissed, the employer, following the regulations of the Labor Code of the Russian Federation, together with the personnel department prepares a proper notification. The notice period for dismissal must be strictly observed, otherwise the document will not be considered legal.
Notice of dismissal and its legality
A notice is a document that is used by personnel officers by decision of the employer to notify about upcoming events in the organization, in this case the dismissal of an employee. The Labor Code stipulates the need to notify workers, but does not specify its format.
It is quite obvious that this is a mandatory stage in the dismissal procedure, which implies familiarization with the document (reading the notice) of the addressee. The legality of the notification is confirmed:
- transfer of a documentary message personally to the addressee (employee) against signature;
- sending the document by registered letter with notification.
If a document sent by mail is returned after 5 days with the mark “not received”, the employer does not bear responsibility here, since it is considered that he has completed his mission of notifying. If the addressee refuses to sign the letter, a corresponding act is drawn up.
Common types of notices and deadlines for their delivery
At his own request, an employee may resign in cases specified in Art. 80 Labor Code of the Russian Federation. The employee does not send notice, but is obliged to notify of his decision by writing a letter of resignation 2 weeks in advance. In fact, the statement he wrote is a kind of notice of dismissal and is submitted in advance within the deadlines established by law.
The grounds for dismissal at the initiative of the employer may vary. Their nature can be described as unforeseen and completely predictable, planned. This is discussed in detail in Art. 81 Labor Code of the Russian Federation. For example, common reasons for dismissal are: cessation of the organization’s activities, staff reduction, there are also a number of grounds for denouncing an employment contract due to the fault of the employee. In such cases, those being dismissed are notified in advance through notices. Hence, there are several types of notifications, which are drawn up, although in the same form, but indicating different reasons and decisions made. Let's look at some of them.
| Grounds for dismissal | Notification Features |
| Termination of the organization's activities | Awarded to the employee 2 months before the start of the event; |
| Staff reduction | Sent to employees 2 months before the events (the period may be longer, but not less than specified); the notification must include the proposed vacancies and an indication of the employee’s obligation to communicate the decision on the offer |
| Expiration of a fixed-term employment contract | The employee is notified at least 3 days in advance; the basis for denunciation of the contract is indicated - due to the expiration of the validity period |
| Unsatisfactory result shown by workers during the test | The decision is communicated to the employee 3 days in advance; the notification must indicate the reasons according to which it is recognized that the employee did not pass the test; such actions will have a legal basis only when the probationary period is provided for in the employment contract |
The specified general grounds for dismissal are valid for residents of the Russian Federation and foreigners. They have nothing to do with the citizenship of workers. A foreigner can also be dismissed for special reasons (expiration of the VHI policy, work permit, etc.).
In all cases, in the generally accepted manner, if provided for by the rules, the employer, when dismissing a foreign employee on his own initiative, duly notifies him of this.
The specificity of the procedure for dismissing foreign workers is that after dismissal, migration services also need to be notified within three days. Such documents must contain all the information about the dismissed foreigner: full name, profession, legal basis of labor relations, registration data, date and reasons for dismissal. The notification is delivered by mail or delivered in person.
Registration of notice of the upcoming dismissal of an employee
In all cases of dismissal where notice is required, the responsibility for drawing it up, getting it endorsed by the employer and sending it to the employee rests entirely with the HR department. The person responsible for notifying the dismissed person prepares a stamped form indicating:
- date of notification;
- outgoing number;
- organization details.
Despite the fact that there is no approved standard form for such a document, the structure of the document, which all organizations take as a basis, is identical in all cases.
| Notification structure | What does it include? |
| Name | "Notification" |
| Title | “On liquidation of an organization”, “On staff reduction”, etc. |
| Addressee information | Organization represented by the director |
| Details of the employee being notified | Full name (position) |
| Document text | The employer's decision to dismiss (or offer, request) indicating the reason and date of termination of the contract |
| The final part of the document | Signature of the head of the organization; employee’s note about familiarization with the document and his signature |
In this way, it is possible and necessary to notify the employee not only about layoffs, dismissals, but also about transfers, vacations, etc. The form remains the same, only its content changes.
Procedure for notifying an employee of dismissal
Thus, the notification procedure is carried out by personnel department employees under their own responsibility. In all cases where it is necessary to notify employees of dismissal, the notification procedure is also the same.
| Procedure for a HR employee | Explanations |
| Prepare a notification | There must be 2 copies of the document; indicate the number and date on the notification itself |
| Register a ready-made notification | Recorded in the registration log under the number; the log refers to the incoming documentation folder |
| Give the document to the head of the organization for signing | The head of the OK can sign instead of the manager if he has the authority to do so (power of attorney) |
| Introduce the signed notice of dismissal to the employee | The employee is given 1 copy for review, the second remains on file; the person being dismissed reads the document, writes that he is familiar with it and puts his signature under it |
Dismissal of the organization's management team
The management of the organization, including the general director, as well as ordinary employees, have the right to resign at their own request, since Art. 37 of the Labor Code of the Russian Federation prohibits forced labor. The right to voluntarily decide to work or not applies equally to all citizens. The General Director is obliged to notify the organization (general meeting of participants, etc.) of his decision one month in advance.
Once the director is sure that everyone is informed, after a month he has the right to cease his activities.
The director and any other manager in the organization can be dismissed on a general basis. The design and procedure of the procedure generally follows the generally accepted procedure. The only difference is that the issues of dismissal of a director and notification are related to the authorized bodies of the organization (board of directors, founders, etc.). Moreover, the notice period for the dismissal of a director increases to a month. Otherwise, the dismissal (and notification) procedure remains unchanged.
If the director is the only participant in the company, then the dismissal process is simplified. He doesn't have to send himself a notification and wait until the end of the month. A decision is simply made and an order is issued. If there is a change of ownership, notice of dismissal must also be given one month in advance. The new owner has the right to initiate the dismissal of the former deputy director and chief accountant within 3 months.
Example 1. Familiarization of an employee with a notice of denunciation of a fixed-term employment contract due to the end of its term
The head of the personnel department handed V. A. Serebryanik 3 days before the end of the employment contract (until November 13, 2016) 1 copy of the notice of dismissal. The document includes:
- reason for dismissal - expiration of the contract;
- the date of dismissal is similar to that specified in the employment contract, that is, November 13 of the current year;
- Below the text is the signature of the employer.
The application is recorded under a number in the registration journal. The timing of the notification and the format of the notification itself were observed correctly. The notification is considered lawful. The employee read the document and signed it.
Example 2. Notification of an employee about staff reduction at Buttercup LLC
Limited Liability Company "Lutik"
LLC "Lutik"
Notification to Morina Irina Petrovna
(Head of AHO)
About staff reduction
Dear Irina Petrovna!
In connection with the staff reduction of employees of Lyutik LLC (order dated October 18, 2016 No. 19-od):
- We are warning you about the upcoming dismissal on December 15, 2016 (under Article 81, Part 1, Clause 2 of the Labor Code of the Russian Federation).
- We inform you about the availability of a vacancy for an operating technician at Buttercup LLC as of 10/11/2016. The salary for this position is 10 thousand rubles.
General Director (signature) P. R. Olesov
Answers to frequently asked questions
Question #1: How can an employee express consent to work in a new position proposed by the employer in a notice of staff reduction?
The response to such a proposal in the notification itself should be brief. The employee writes in free form what date he received the notification, and also that he has read it and agrees to transfer to the proposed position. Next to it you need to put the date the answer was written and a personal signature.
Question #2: Can an employer send notice of dismissal while the employee is on sick leave?
Question #3: The employer warned the employee about the denunciation of the employment contract due to its expiration. How to calculate the time of dismissal upon notice in such a situation; do you need to include weekends and holidays in this period?
Typically, an employment contract specifies the number of years (or months) that determines the duration of the contract. If the last day of work according to the contract falls on a weekend or holiday, they are not taken into account. The day of dismissal will be considered the next working day after a holiday or weekend.
Question #4: Can the notice period (application) be extended if an employee resigns voluntarily?
No, the exception is the withdrawal of the application by the employee. After this, he has the right to submit it again, indicating a different date of dismissal. Thus, the deadline will be postponed to another, later time.
Question #5: Is the organization held liable for failure to comply with the deadlines for notifying employees of dismissal?
Such cases are recognized as a violation of labor legislation (Article 79 of the Labor Code of the Russian Federation). There is administrative responsibility for this. Violators (individual entrepreneurs, officials, organizations) are fined. Compensation for moral damage to the employee is not excluded if the court decides so.
The general procedure for registering termination of an employment contract is regulated. This article describes an algorithm of actions that must be followed.
Termination of an employment contract is formalized by order (instruction) of the employer. Usually a unified form is used, which is approved.
The employee must be familiar with the order against signature. A certified copy of the order can be handed over to the employee at the request of the employee.
According to general rules, the day of termination of an employment contract is always the last day of work of the employee, with the exception of cases where the employee did not actually work, but retained his place of work.
On the day of termination of the employment contract, the employer is obliged to:
- issue a work book to the employee (if the employee is not at work on the day of dismissal, he is sent a notice of the need to pick up the work book or agree to have it sent by mail);
- make a settlement with it in accordance with;
- upon written request of the employee, issue certified copies of documents related to work.
An entry in the work book about the basis and reason for termination of the employment contract is made in strict accordance with the wording of the Labor Code or other federal law, with reference to the relevant article, part of the article, paragraph of the article.
There has long been a dispute among HR specialists regarding which wording to use: “the employee is fired,” “the employment contract is terminated,” or “the employment contract is terminated”? The Labor Code does not give a clear answer to this question, so employers often choose the wording at their own discretion.
Grounds for dismissing an employee
1. Dismissal during the probationary period
The establishment of a probationary period when hiring is regulated by Art. 70 TK. It provides a list of employees for whom a probationary period is not established:
- persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;
- pregnant women and women with children under the age of one and a half years;
- persons under the age of 18;
- persons who have received secondary vocational education or higher education in state-accredited educational programs and are entering work for the first time in the acquired specialty within one year from the date of receiving vocational education at the appropriate level;
- persons elected to an elective position for paid work;
- persons invited to work by way of transfer from another employer as agreed between the employers;
- persons concluding an employment contract for a period of up to two months;
- to other persons in cases provided for by the Labor Code, other federal laws, and a collective agreement.
The probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law.
During the probationary period, HR officers must record any deviations in the work of the new employee using memos and reports. When the probationary period ends and the employer evaluates the newcomer’s performance as unsatisfactory, he must document the validity of his decision.
The employer may terminate the employment contract before the expiration of the probationary period if the result is unsatisfactory, but he will need to notify the employee in writing (in notification format) no later than three days in advance, indicating the reasons that served as the basis for making such a decision. At the same time, you need to be prepared for the fact that the employee has the right to appeal this decision in court.
If an employee refuses to sign a notice, a corresponding act is drawn up, which records the fact that the employee has read the notice and refused to sign it. Based on the notification, order T-8 is issued to terminate the employment contract. If an employee refuses to sign an order, then at the bottom of the order the personnel officer writes by hand that the employee was familiar with the order, but refused to sign, or a corresponding act is drawn up. In any case, it is important to record the fact that the employee has read the order.
An employee can also terminate an employment contract at his own request during a probationary period. To do this, he needs to submit an application, but he does not have to indicate the reason for dismissal. The notice period in this case, according to Art. 71 TK, will be three calendar days. The dismissal itself is made on the basis of (termination of the employment contract at the initiative of the employee).
2. Dismissal at your own request
Which article of the Labor Code should you refer to: .
An employee has the right to terminate an employment contract at his own request, but he must notify the employer in writing no later than two weeks in advance, unless a different period is established by the Labor Code or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter. By agreement of the parties, this period may be reduced.
In cases where dismissal at the initiative of the employee is due to the impossibility of continuing his work, the date of dismissal can be set independently. In Art. 80 of the Labor Code contains the grounds when this option is possible: enrollment in an educational institution, retirement, established violation of labor legislation by the employer, etc. Labor relations practice shows that there are many more reasons for reducing notice periods. For example, an illness that prevents the continuation of this work, provided there is an appropriate medical certificate; moving to another area ().
The list of valid reasons for dismissal on the day the application is submitted can be enshrined in the internal labor regulations of the organization or in the collective agreement.
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 the Labor Code and other federal laws, cannot be denied an employment contract. For example, in Art. 64 of the Labor Code states that it is prohibited to refuse to conclude an employment contract to employees invited in writing to work as a transfer from another employer.
Upon expiration of the notice period for dismissal, the employee has the right to stop working. On the last day of work, the employer must:
- issue the employee with a work book;
- issue other work-related documents upon written request from the employee;
- make a settlement with him.
How to prepare documents?
When an employee has the right to reduce the notice period, he writes a dismissal date, which is binding on the employer, that is, he cannot unilaterally change this date on his own. Sometimes an employee is not entitled to benefits, but asks to be fired early. For example, he writes a statement on May 15, and asks to fire him on May 19. In this case, the employer can act under Art. 80 TK. If he agrees to dismiss earlier, he accepts the application and issues an order. If he does not agree, then he draws up a notice for the employee, in which he explains that he cannot accept such a statement on the basis of Art. 80, which requires two weeks notice and asks to write a new application.
Based on the order, an entry is made in the work book (this is done on the last day before the book is issued, so that the employee immediately signs in the book for recording the movement of work books).
3. Dismissal by agreement of the parties
Which article of the Labor Code should you refer to: .
The basis for dismissal “by agreement of the parties” was included in the Labor Code in 2006, and Art. 78 of the Labor Code, which is devoted to this issue, contains only one sentence: “An employment contract can be terminated at any time by agreement of the parties to the employment contract.” No matter how such a basis for dismissal is perceived, one must proceed, first of all, from the fact that the word “agreement” itself indicates a peaceful basis for termination of the employment relationship.
Despite the fact that the agreement is not provided for by the Labor Code, it is a very important document, since it specifies the conditions under which the parties terminate the employment relationship.
4. Dismissal due to expiration of the employment contract
Which article of the Labor Code should you refer to: .
The grounds on which a fixed-term employment contract is concluded are stated in. Most often - for the duration of the duties of an absent employee, who retains his place of work.
If a fixed-term employment contract is concluded with an employee, then the expiration date of the employment contract is associated with a specific date, which is specified in the contract itself. Three days before this date, the employer is obliged to warn the employee about the expiration of the period by means of a notice.
Sometimes the expiration date of an employment contract cannot be established in advance; in this case, the contract does not indicate the expiration date, but a condition. In this case, there is no need to notify about the termination of the employment contract, since the very fact of the main employee returning to work means the termination of the employment contract of the employee who replaced him.
In Art. 193 of the Labor Code states how to formalize a disciplinary sanction. The employer's action algorithm in this case is quite clear. First of all, when a disciplinary violation is discovered, an act is drawn up, which records the fact of the violation, all the circumstances under which it was discovered, the date, and witnesses. Then a written explanation is required from the employee (the deadline for providing the document is two working days). Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action. If there is or is no explanation, the employer makes a decision based on its assessment of the employee’s actions.
The timing of the application of the penalty must be taken into account - no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees. A disciplinary sanction cannot be applied later than six months from the date of commission of the offense.
A report on the commission of a disciplinary offense is sent to the director (the person who can make decisions on this issue). And the employee is given a notice against signature with a requirement to provide a written explanation. If he does not provide it, then an act is drawn up.
If misconduct is proven, disciplinary action is taken. In case of “mild” violations, the employee is first reprimanded. At the same time, the order to apply a disciplinary sanction contains links to all documents that confirm the grounds for applying the sanction.
7. Dismissal of a long-term absent employee
The legislation does not provide clear tools for formalizing such dismissals. Problems often arise because the employer does not know how to treat a person's prolonged absence from work if there is no information about the reasons for this absence. At the same time, he does not have the right to dismiss an employee until a violation of labor legislation is established.
Registration of such a situation begins with drawing up an act for each working day stating that the person is absent from work for an unknown reason (in the first act the time of absence is indicated “from ... to”, and in the rest - “during the entire working day”).
Acts on the absence of an employee should first be drawn up daily, in case of long-term absence - as of the day of submission of the next time sheet.
Letters are sent to the employee asking for an explanation of the reasons for failure to appear (they must be sent by registered mail with a list of attachments).
If there is no news from the missing employee for more than a year, the employer, guided by the provisions of Art. 42 of the Civil Code of the Russian Federation and Chapter 31 of the Code of Civil Procedure of the Russian Federation, may, through the court, recognize the missing employee as missing. According to Art. 42 of the Civil Code of the Russian Federation, a citizen may, at the request of interested parties, be recognized by the court as missing if during the year there is no information about his place of residence at his place of residence. If the court satisfies the stated requirements to recognize the missing employee as missing, the employer will be able to terminate the employment contract with this employee under clause 6 of Part 1 of Art. 83 Labor Code of the Russian Federation.
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The procedure for calculating employees in connection with layoffs, all guarantees, payments and conditions under which management has the right to take such actions, including how much notice the employer must give about layoffs, are considered by the Labor Code of the Russian Federation ().
How many days notice is given about layoffs?
Very often citizens are interested in the question of how much notice they must give about a layoff?
The answer to this question is directly indicated by the legislator: the employer is obliged to warn the employee two months before the date of dismissal.
But the next question undoubtedly arises: “How many months in advance must one give notice of layoffs at work for several employees?”
The following parties receive notice of an employee's layoff:
- directly the employee;
- employment center;
- trade union committee (if there is one).
In what cases is dismissal due to reduction considered to be of a mass nature:
- Complete liquidation of the company (provided that the number of employees is at least 15 full-time units).
- Reduction in staffing from 50 jobs per month, from 200 in 2 months, from 500 in 3 months.
- Simultaneous dismissal of employees constituting 1% of the total number of employees (valid for sparsely populated areas where less than 5,000 working citizens live).
But in what cases is the notice period for an employee about layoff shorter? So, the legislation does provide for other notice periods for workers. For people working seasonal jobs, this period is a week.
It is equally important to pay attention to how many days in advance employees with a fixed-term employment contract (up to two months) must be notified of layoffs. So, such a warning is received by the employee 3 days before the day of dismissal. Therefore, if you were warned about the reduction a month in advance, this is normal. This means you fall into one of the above categories. However, you should still check the legality of the employer’s actions.
Thus, we answered the question of how long it takes to warn an employee about layoffs.
Employer's order
Previously, we looked at how far in advance an employee must be notified of a layoff, but the execution of this notification is no less important.
The legislation of the Russian Federation does not provide for a special, officially developed form of the document.
The notice is drawn up randomly.
But the notification must indicate:
- Employee rights.
- Reason for dismissal.
- Guarantees provided to the employee.
- A list of positions offered to the employee to replace the lost one.
Important! The two-month period begins to count only from the next day after the employee receives the order. The new staffing schedule also comes into force after this time.
Having answered the question about how much notice is given when an employee is laid off, we gave only general terms. However, it should also be remembered that the enterprise management can send a warning about the layoff of an employee later (5-6 months in advance). In this case, the employee may not receive repeated (2-3 months) notice.
This does not contradict the law - the Labor Code of the Russian Federation establishes only a minimum period of notice of dismissal due to reduction, but does not provide for a maximum.
Why is the notice period for dismissal in case of reduction exactly 2 months? During this time, the employee can find another job and resign early without waiting for the end of the notice period.
Payments upon layoff
Having figured out the question of how many months in advance an employee is given notice of layoffs and subsequently receives this notice, it is equally important to know what kind of money you are entitled to receive.
So, in this case, the employee is obliged to receive the following guaranteed payments:
- vacation pay (full or for all time not taken off);
- severance pay in the amount of average monthly earnings (for the first month of unemployment);
- benefits for the second and third months of forced idleness (provided that the former employee registered with the Employment Center within 14 days and was not hired.
On the day of dismissal, the employee is given a work book.
Who can be laid off and who can’t?
In addition to answering the question “How long in advance do they warn about layoffs?” This procedure contains many other nuances. For example, the fact that the initiative to organize and carry out staff reductions lies entirely on the shoulders of the employer, the legislation of the Russian Federation provides nuances for the right of employees to retain their positions and not be subject to reduction.
According to Article 179 of the Labor Code of the Russian Federation, it is first of all allowed to dismiss employees with the least qualifications and experience. That is, the first people who will be under the threat of layoffs are newly arrived employees (it is the length of service at a given enterprise that requires qualifications and experience).
Important! When selecting employees for layoffs, management must take into account not only experience, but also the results of qualifying exams, the presence of higher education and the labor performance of employees during the period of work in production (regardless of the time of employment).
Beneficiaries upon dismissal
The Labor Code of the Russian Federation obliges the director to take into account the following categories of citizens who are not subject to reduction:
These employees are not facing layoffs. In addition to beneficiaries, there are a number of persons whom the employer does not have the right to dismiss during the following periods:
- temporary disability when a person is on sick leave ();
- when the employee is on vacation (the exception is the complete liquidation of the enterprise);
- persons of retirement age (), especially since such people have extensive experience and qualifications;
- single mothers raising children (child) under 14 years of age (), single fathers also have this right;
- large families (if the youngest child has not reached the age of 3 years), also when the dismissed person is the only breadwinner in such a family (Article 261 of the Labor Code of the Russian Federation);
- pregnant women or those on maternity leave (Article 261 of the Labor Code of the Russian Federation).
Violations when delivering notice
So, let us remind you once again what period of notice must be given about a layoff, since compliance with such deadlines is an important and strict condition for the employer:
- Order to carry out reduction - 2 months in advance.
- Notification of the Employment Center and the trade union (if it exists) - 2 months in advance and 3 months in case of mass layoffs.
- Payment for the part of the month worked, severance pay and compensation for vacation - on the day of dismissal.
Violations of these deadlines established by the Labor Code of the Russian Federation entail large fines: for individual entrepreneurs up to 50 minimum wages, for legal entities - up to 500 minimum wages.
Important! If the employee is not notified on time, the validity period of the notice is extended and comes into force on the day the employee is given the order to lay off.
An employer's decision to say goodbye to an employee before two months is illegal. The law of the Russian Federation provides for early dismissal of a person (up to 2 months) only if the employee himself is ready to voluntarily resign.
In this case, the employer is obliged to additionally pay the employee a salary for these two months.
Procedure if an employee refuses to receive a notification
Sometimes it happens. The employer has the right to give the employee an order regarding the upcoming layoff in three ways:
- Personally to each employee, handing over the order against signature.
- By registered mail with return receipt requested.
- In the presence of the labor commission or two witnesses. In this case, either the employer himself or members of the commission/witnesses can sign for the employee on receipt of the document.
The order on the upcoming reduction is valid for 2-3 months.
This document may lose its validity earlier for the following reasons:
- if an employee leaves early;
- when the employer's decision to reduce staff changes;
- when the employee agrees to accept another vacant position offered to him in the notification.
If the required two to three months have passed and the employee has not been fired, the notice automatically loses its force.
This outcome is possible when the employer does not have enough funds to pay all the required payments and compensations. In this case, the employee can continue to work calmly.
We hope that in our article you found the answer to the question of how much notice you should give about a layoff. Good luck!