When is an employment contract terminated? When and in what cases is the employment contract terminated? In what cases does an employment contract terminate?

§ by mutual agreement of the parties (agreement of the parties) (Article 78 of the Labor Code of the Russian Federation);

§ at the initiative of one of the parties employment contract, including:

At the initiative of the employee, including in connection with his transfer at his request or with his consent to work with another employer or his transfer to an elective position (Articles 72.1., 72.2., 73, 80 of the Labor Code of the Russian Federation);

At the initiative of the employer (Articles 71, 81 of the Labor Code of the Russian Federation);

§ impossibility to continue labor relations in connection with:

The expiration of the employment contract (Article 79 of the Labor Code of the Russian Federation);

Circumstances beyond the control of the parties (given in Article 83 of the Labor Code of the Russian Federation);

Violation established rules conclusion of an employment contract (Article 84 of the Labor Code of the Russian Federation).

§ refusal of the employee to continue the employment relationship, including:

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 (Article 75 of the Labor Code of the Russian Federation);

In connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of the Labor Code of the Russian Federation);

From transfer to another job for health reasons, the employee’s refusal to transfer to another job, which is necessary for the employee in accordance with a medical report, or the employer’s lack of an appropriate job (parts three and four of Article 73 of the Labor Code of the Russian Federation);

From transfer to work in another locality together with the employer (part one of Article 72.1 of the Labor Code of the Russian Federation).

In addition to the general grounds, an employment contract may also be terminated on other, additional grounds that are provided for by the Labor Code of the Russian Federation (for example, articles 278, 288, 307, 312, 336 of the Labor Code of the Russian Federation) and other federal laws. For example - see Article 37 of the Federal Law of July 27, 2004 No. 79-FZ "On the State Civil Service Russian Federation».

After the introduction of amendments to the Labor Code of the Russian Federation, the day of termination of the employment contract in all cases is the last day of the employee's work, except for cases when the employee did not actually work, but, in accordance with the Labor Code of the Russian Federation or other federal law, the place of work (position) was retained ( article 84.1 of the Labor Code of the Russian Federation). For example, in accordance with Article 127 of the Labor Code of the Russian Federation, when granting unused vacation followed by dismissal (upon a written application from the employee), the last day of vacation is considered the day of dismissal. An exception is made in cases of dismissal for guilty actions.

Let's take a closer look at the grounds for terminating an employment contract.

According to article 78 of the Labor Code of the Russian Federation, an employment contract can be terminated at any time by agreement of the parties. Note that it is not uncommon for dismissed workers to go to court. Termination of the employment contract by agreement of the parties allows the employee and the employer to agree on a compromise.

Termination of an employment contract by agreement of the parties may take place, for example, in the case when the employer is interested in terminating the employment relationship, but there are no grounds for dismissing the employee at the initiative of the employer in accordance with the Labor Code of the Russian Federation. Upon reaching an agreement between the employee and the employer, the employment contract can be terminated within a period specified by the parties, and this rule is applicable to both fixed-term and open-ended employment contracts.

According to paragraph 20 of the Decree of the Plenum of the RF Armed Forces No. 2:

“Cancellation of an agreement regarding the term and grounds for dismissal is possible only with the mutual consent of the employer and employee.”

The procedure for dismissal by agreement of the parties is not spelled out in detail in the Labor Code of the Russian Federation, the legislator granted the parties to labor relations the right to independently resolve specific issues related to the procedure for terminating an employment contract on the basis provided for in paragraph 1 of Article 77 of the Labor Code of the Russian Federation. So, in the agreement, you can specify the amount of severance pay, as well as other guarantees of the rights of the employee and employer. This agreement is in the form additional agreement to the employment contract and is drawn up in any form.

Of course, for an employee, the advantage of dismissal by agreement is that in addition to the payments provided for by law upon dismissal, you can also receive additional severance pay. Based on the norm in Article 178 of the Labor Code of the Russian Federation, an employment contract or a collective agreement may provide for other cases of payment of severance pay, in addition to those directly specified in the Labor Code of the Russian Federation.

For the employer, the main advantage of mutually agreed dismissal is the guarantee that the dismissed employee will not sue for reinstatement or any other requirements, provided that the employer fulfills all the conditions that were stipulated in the agreement for such a dismissal.

In addition, if an employee decides to quit own will, according to Article 80 of the Labor Code of the Russian Federation, he is obliged to notify the employer about this in writing no later than two weeks in advance, unless another period is established by the Labor Code of the Russian Federation or other federal law. A two-week period is established by the legislator so that the employer has the opportunity to find a replacement for the resigning employee. If a replacement is not found in two weeks, then in this case it is also possible to draw up an agreement according to which this employee must continue to work while the employer is looking for a replacement. Subsequently, upon dismissal, the employee, for example, in addition to wages, will receive the amount of severance pay specified in the agreement (Article 178 of the Labor Code of the Russian Federation)

Another example: an employee wrote a letter of resignation of his own free will, and then withdrew it before the expiration of the notice of dismissal. At the same time, the employer does not have the right to dismiss him, except for the case when another employee is invited in his place in writing, who, in accordance with the Labor Code of the Russian Federation and other federal laws, cannot be refused to conclude an employment contract. In this case, you can also use dismissal by agreement of the parties.

According to paragraph 2 of Article 77 of the Labor Code of the Russian Federation, the employment contract is subject to termination after the expiration of the employment contract unless the employment relationship actually continues and neither party has requested termination. Article 79 of the Labor Code of the Russian Federation states that it is subject to termination with the expiration of its validity. At the same time, the employer is obliged to notify the employee of the termination of the fixed-term employment contract in writing at least three calendar days before dismissal, except for cases when the term of the fixed-term employment contract concluded for the period of performance of the duties of the absent employee expires.

Otherwise, according to Article 58 of the Labor Code of the Russian Federation, if none of the parties demanded the termination of a fixed-term employment contract due to the expiration of its term, and the employee continues to work after the expiration of the employment contract, the employment contract is considered concluded for an indefinite period. Consequently, without warning the employee of the dismissal, the employer cannot dismiss the employee due to the expiration of the employment contract without his consent. In this case, the dismissal of an employee is allowed only on the general grounds provided for by law.

The expiration of an employment contract does not entail automatic termination of its validity, therefore, in order to timely warn employees about the expiration of the contract, the employer must keep records of the expiration dates of employment contracts.

Upon termination of the contract, the term of which has expired, the employee is dismissed in accordance with paragraph 2 of Article 77 of the Labor Code of the Russian Federation due to the expiration of the term of the employment contract, about which an appropriate entry is made in work book.

Article 79 of the Labor Code of the Russian Federation indicates the moments of termination of labor relations upon the conclusion of the following fixed-term employment contracts:

an employment contract concluded for the duration of a certain work is terminated upon completion of this work;

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

an employment contract concluded for the performance seasonal work during a certain period (season), terminates at the end of this period (season).

It should be noted that a fixed-term employment contract may be terminated before its expiration on the grounds established by Article 77 of the Labor Code of the Russian Federation.

An employment contract can be terminated in accordance with paragraph 3 of Article 77 of the Labor Code of the Russian Federation at the employee's request. At the same time, the employee is obliged to notify the employer of his dismissal in writing no later than two weeks, unless another period is established by the Labor Code of the Russian Federation or other federal law. The specified period begins the next day after the employer receives the employee's application for dismissal.

A different term for terminating the employment contract, before the expiration of the notice of dismissal, may be fixed by an agreement between the employee and the employer (Article 80 of the Labor Code of the Russian Federation).

In some cases, the employer is obliged to dismiss the employee on the day that he indicates in the application, due to a number of good reasons. In accordance with paragraph 3 of Article 80 of the Labor Code of the Russian Federation, the employer is obliged to terminate the employment contract within the period specified in the employee's application, in cases where the employee's application for dismissal of his own free will is due to the impossibility of continuing his work (enrollment in educational institution, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts containing norms labor law, local regulations, terms of a collective agreement, agreement or employment contract.

By general rule 80 of the Labor Code of the Russian Federation, the employee has the right to terminate the employment contract by notifying the employer in writing no later than two weeks in advance. However, according to the written statement of the employee unused vacations may be granted to him with subsequent dismissal (with the exception of dismissal for guilty actions). In this case, the last day of vacation is considered the day of dismissal (Article 127 of the Labor Code of the Russian Federation).

Thus, in this case, the employer does not have the right to oblige the employee to work for two weeks before dismissal and must terminate the employment contract with him on the last day of vacation. The terms of calculation upon dismissal are defined in article 140 of the Labor Code of the Russian Federation.

At the same time, the employee has the right to terminate the employment contract at his own request at any time, both during the period of work and during the period of temporary disability, being on vacation, on a business trip. For example, if during the period of the two-week warning period the employee falls ill and continues to get sick at the end of the warning period, then after this period the employee is subject to dismissal, since the initiative to dismiss came from the employee, and not from the employer.

In the event of early termination of the employment contract between the head of the organization and the owner of the property, the head, in accordance with Article 280 of the Labor Code of the Russian Federation, must notify the employer in writing no later than one month in advance.

In case of early termination of an employment contract concluded with an employee for a period of up to two months or with an employee engaged in seasonal work, the employee is obliged to notify the employer about this in writing three calendar days in advance. This is established by articles 292, 296 of the Labor Code of the Russian Federation.

After the expiration of the notice period for dismissal, the employee, in accordance with paragraph 5 of Article 80 of the Labor Code of the Russian Federation, has the right to stop working. On the last day of work, the employer is obliged to issue to the employee a work book at the written request of the employee, other documents related to work, and make the final settlement with him. If an employee is dismissed for reasons that provide any benefits or benefits, then in accordance with clause 5.6 of Instruction No. 69, these reasons are indicated next to the link to the article. For example, "Fired of her own free will in connection with the transfer of her husband to work in another locality, paragraph 3 of Article 77 of the Labor Code of the Russian Federation."

It should be noted that Article 80 of the Labor Code of the Russian Federation establishes the following employee rights guarantees:

1) If, after filing an application for dismissal, the employee decided not to quit, then he has the right to withdraw his application at any time before the expiration of the notice of dismissal. In this case, there is no dismissal. An exception is the case when another employee is invited in his place in writing, who, in accordance with the Labor Code of the Russian Federation and other federal laws, cannot be refused to conclude an employment contract. For example, according to Article 64 of the Labor Code of the Russian Federation, it is prohibited to refuse to conclude an employment contract for employees invited in writing to work by transfer from another employer within one month from the date of dismissal from their previous place of work.

2) The validity of the employment contract continues if, after the expiration of the term of notice of dismissal, the employment contract is not terminated and the employee does not insist on dismissal.

Note that if the employer is not satisfied with any employee, you can part with him by convincing him to quit of his own free will. In practice, such laid-off workers often go to court, demand that they be reinstated at work, claiming that they quit under pressure from the employer. As stated in paragraph 22 of the Decree of the Plenum of the RF Armed Forces No. 2, in such cases, the employee is obliged to prove to the court that he wrote the application “of his own free will” under duress. In such a situation, the employer can be recommended to present his arguments to the court in order to influence the outcome of the litigation. For example, subpoena a witness who will confirm that the employee voluntarily submitted a letter of resignation, or that before the dismissal, the employee was looking for another job.

According to paragraph 4 of Article 77 of the Labor Code of the Russian Federation, an employment contract can be terminated at the initiative of the employer. At the same time, in accordance with paragraph 16 of the Rules for maintaining and storing work books and paragraph 5.3 of Instruction No. 69, an entry in the work book about dismissal is made with reference to the relevant paragraph of Article 81 of the Labor Code of the Russian Federation or other grounds for termination of the employment contract at the initiative of the employer, provided for by law.

Article 81 of the Labor Code of the Russian Federation, which defines the grounds for termination of an employment contract at the initiative of the employer, is the most voluminous in Chapter 13 of the Labor Code of the Russian Federation.

Before considering each of these grounds separately, we note what guarantees are provided upon termination of an employment contract at the initiative of the employer to employees. Thus, according to Article 269 of the Labor Code of the Russian Federation, an employment contract can be terminated with employees under the age of 18 at the initiative of the employer only with the consent of the relevant state labor inspectorate and the commission on minors and the protection of their rights. Exceptions are cases of liquidation of an organization or termination of activity by an individual entrepreneur.

In addition, in accordance with the provisions of Article 261 of the Labor Code of the Russian Federation, termination of an employment contract at the initiative of the employer is not allowed:

With pregnant women (with the exception of cases of liquidation of an organization or termination of activity by an individual entrepreneur);

With women who have children under the age of three;

With single mothers raising a child under the age of fourteen (a disabled child under eighteen);

With other persons raising these children without a mother.

However, the legislator in Part 4 of Article 261 of the Labor Code of the Russian Federation still makes a reservation about exceptional cases in which it is allowed to dismiss women with children under the age of three, single mothers raising a child under the age of fourteen (a disabled child under eighteen) , other persons raising these children without a mother, on the initiative of the employer on the grounds specified in Article 81 of the Labor Code of the Russian Federation - see paragraph 1, paragraphs 5-8, 10 or 11 of Article 81 or paragraph 2 of Article 336 of the Labor Code of the Russian Federation.

It is also allowed to dismiss a woman due to the expiration of the employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of the absent employee and it is impossible, with the written consent of the woman, to transfer her before the end of pregnancy to another job available to the employer (as vacant position or a job corresponding to the qualifications of a woman, as well as a vacant lower position or a lower paid job) that a woman can perform taking into account her state of health (part 3 of article 261 of the Labor Code of the Russian Federation). At the same time, the employer is obliged to offer her all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

The legislator has introduced a new rule that expands the scope of guarantees for pregnant women. So, in the event of the expiration of a fixed-term employment contract during a woman's pregnancy, the employer is obliged, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, to extend the validity of the employment contract until the end of pregnancy, before the extension of the employment contract was made before she had the right to leave for pregnancy and childbirth, that is, the period was shorter. For this opportunity, a woman is obliged, at the request of the employer, but not more than once every three months, to provide a medical certificate confirming the state of pregnancy. And, in the end, if at the same time the woman actually continues to work after the end of pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day when the employer found out or should have found out about the fact of the end of pregnancy.

It should be noted that the failure to provide employees with guarantees upon termination of an employment contract is not considered a violation of the legality of dismissal. In this case, we can only talk about the restoration of violated rights, but not about reinstatement in connection with illegal dismissal.

Note!

In some cases, the elected body of the primary trade union organization (if it exists in the organization) must be notified of the dismissal at the initiative of the employer. Thus, taking into account the reasoned opinion of the body of the primary trade union organization is mandatory in the event of the dismissal of workers who are members of the trade union, according to paragraph 2 of Article 81 of the Labor Code of the Russian Federation:

– « reduction in the number or staff of employees of the organization, individual entrepreneur »,

according to paragraph 3 of article 81 of the Labor Code of the Russian Federation:

– "inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification"

and paragraph 5 of Article 81 of the Labor Code of the Russian Federation:

– “Repeated non-performance by an employee without good reason job duties if he has a disciplinary sanction".

So, the employment contract can be terminated by the employer in accordance with paragraph 1 of Article 81 of the Labor Code of the Russian Federation in the event liquidation of the organization or termination of activity by the employer - an individual entrepreneur.

The decision on liquidation may serve as the basis for the dismissal of employees under this paragraph. legal entity. That is, on the basis of the provisions of Article 61 of the Civil Code of the Russian Federation, such a basis can be a decision to terminate the activities of a legal entity without transfer of rights and obligations by succession to other persons, adopted in accordance with the legislatively established procedure. Clause 8 of Article 63 of the Civil Code of the Russian Federation states that the liquidation is considered completed, and the legal entity is considered to have ceased to exist after an entry about this is made in a single State Register legal entities (hereinafter the Unified State Register of Legal Entities). Therefore, employment contracts can be terminated on the basis of paragraph 1 of Article 81 of the Labor Code of the Russian Federation only after an entry has been made in the Unified State Register of Legal Entities on the termination of the legal entity. Entries about the dismissal in the work books of employees are made by the liquidation commission on the basis of orders for dismissal.

Article 81 of the Labor Code of the Russian Federation states that if the activities of a branch, representative office or other separate structural unit organizations located in another locality, then employment contracts with employees of these structural units are terminated according to the rules provided for in cases of liquidation of the organization.

Employees are warned about the upcoming dismissal in connection with the liquidation of the organization by the employer, in accordance with Article 180 of the Labor Code of the Russian Federation, personally and against signature at least two months before the dismissal.

If the employer is an individual entrepreneur, then the employment contract is subject to termination under paragraph 1 of Article 81 of the Labor Code of the Russian Federation in cases where the activity of an individual entrepreneur is terminated:

On the basis of his own decision;

Due to its recognition as insolvent (bankrupt) by a court decision;

Due to the fact that the certificate of state registration has expired;

In connection with the refusal of an entrepreneur to renew a license for certain types of activities.

When employees are dismissed in connection with the termination of activities by an employer - an individual, the terms of the notice of dismissal are determined by the employment contract (Article 307 of the Labor Code of the Russian Federation).

In the event of the death of an individual entrepreneur, or a court declaring him dead or missing, the employment contract with the employee is terminated in accordance with paragraph 10 of Article 77 of the Labor Code of the Russian Federation: circumstances beyond the control of the parties.

Note!

The case of liquidation of an organization or termination of activity by an employer - an individual entrepreneur is the only possible basis for terminating an employment contract with an employee at the initiative of the employer during his temporary disability and while on vacation, including educational, unpaid leave and others (Article 81 of the Labor Code RF), as well as with pregnant women (Article 261 of the Labor Code of the Russian Federation). Dismissal on other grounds during the period of disability or vacation is not possible. So, in the Ruling of the Supreme Court of the Russian Federation of January 13, 2006 No. 46-В05-44 on the basis of the case materials, it was established that the dismissal of employee K. was carried out by order of the employer dated December 26, 2002 from December 30, 2002, which was declared illegal by the court, since On the day of his dismissal, December 30, 2002, the plaintiff was unable to work (K.'s period of temporary disability lasted from December 26, 2002 to April 29, 2003). In addition, the conclusion of the court of first instance that the employer can correct this violation of labor legislation by issuing an order to postpone the date of dismissal of the employee to a later time, when the period of temporary disability of the employee ends, was recognized by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation as erroneous . On this occasion in this Definition clarified the following: “The Labor Code of the Russian Federation does not give the employer the right to change the date of dismissal of an employee, as well as to take other legally significant actions affecting the rights and interests of the employee, without his prior consent and after the employment relationship between the employer and the employee has already been terminated at the initiative of the employer”.

At the initiative of the employer, an employment contract may be terminated in the event of a reduction in the number or staff of employees of an organization, an individual entrepreneur in accordance with paragraph 2 of Article 81 of the Labor Code of the Russian Federation.

Reducing the number or staff of workers is a common phenomenon in the system of labor relations. In accordance with Article 180 of the Labor Code of the Russian Federation, employees are warned about the upcoming dismissal due to a reduction in the number or staff of employees by the employer personally and against signature at least two months before the dismissal. During these two months, the employee performs the duties stipulated by the employment contract, he is subject to the internal labor regulations of the organization and the provisions of other local regulations. At the same time, the employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the specified period, paying him additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.

When carrying out measures to reduce the number or staff of employees, the employer is obliged to offer the employee another job available to him (vacant position). This is established by article 180 of the Labor Code of the Russian Federation. The norm given by the legislation is not applicable if at the time of reduction of other vacancies did not have.

Dismissal of an employee to reduce the number or staff of employees in accordance with Article 81 of the Labor Code of the Russian Federation is allowed if it is impossible to transfer the employee, with his written consent, to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or a lower-paid job ), which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

Also, in paragraph 29 of the Decree of the Plenum of the RF Armed Forces No. 2, it is explained that:

“In accordance with part three of Article 81 of the Code, the dismissal of an employee due to a reduction in the number or staff of employees of an individual entrepreneur organization is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer ....”.

If at the time of dismissal due to staff reduction there were vacant positions, but they require appropriate training, it is advisable for the employer, in the event of a labor dispute, to provide evidence justifying the impossibility of transferring laid-off employees to existing positions. In the absence of vacant positions, the employee is offered another job in the same organization, with the same individual entrepreneur, to which he can be transferred with his consent.

When reducing the number or staff of employees, the preferential right to remain at work, in accordance with Article 179 of the Labor Code of the Russian Federation, is granted to employees with higher labor productivity and qualifications. Evaluation of higher labor productivity and employee qualifications and making a decision on priority right for leaving at work with a reduction in the number or staff of the organization's employees is carried out by the employer.

If the business qualities of employees are approximately equal, preference in leaving at work in accordance with Article 179 of the Labor Code of the Russian Federation is given to:

family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood);

Persons in whose family there are no other self-employed workers;

employees who have received an industrial injury or occupational disease during the period of work with this employer;

disabled people of the Great Patriotic War and invalids of military operations for the defense of the Fatherland;

employees who improve their skills on the job in the direction of the employer.

In addition, article 179 of the Labor Code of the Russian Federation is allowed to provide for in the collective agreement other categories of workers who enjoy the preferential right to remain at work with equal labor productivity and qualifications.

In the event of a threat of mass layoffs, the employer, taking into account the opinion of the elected body of the primary trade union organization, takes the necessary measures provided for by the Labor Code of the Russian Federation, Resolution of the Council of Ministers - the Government of the Russian Federation dated February 5, 1993 No. 99 "On the organization of work to promote employment in conditions of mass dismissal" (hereinafter - Decree No. 99), collective agreement. So, according to Article 82 of the Labor Code of the Russian Federation, if the decision to reduce the number or staff of the organization's employees can lead to mass dismissal of employees, the employer is obliged to inform the elected body of the primary trade union organization in writing no later than three months before the start of the relevant events. Currently, the criteria for mass layoffs are given in the Regulation approved by Resolution No. 99.

The inconsistency of the employee with the position held or the work performed due to insufficient qualifications may lead to the termination of the employment contract at the initiative of the employer, respectively, in accordance with paragraph 3 of Article 81 of the Labor Code of the Russian Federation. The dismissal of an employee on this basis is allowed if it is impossible to transfer the employee, with his written consent, to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, or a vacant lower position or lower-paid job), which the employee can perform taking into account his condition health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

Note!

It should be noted that the previous version of the Labor Code of the Russian Federation contained one more reason for dismissal under paragraph 3 of Article 81 of the Labor Code of the Russian Federation: the employee’s inconsistency with the position held or the work performed due to the state of health in accordance with the medical report - subparagraph “a”. The exclusion of this subparagraph means the exclusion from the employer's authority to dismiss an employee on his own initiative if he does not correspond to the position held or work performed due to health conditions.

The Labor Code of the Russian Federation provides for only Article 73 “Transfer of an employee to another job in accordance with a medical report”. If, according to the medical report, the employee needs to be provided with another job, then, in case of his refusal of this work, the employment contract with him can be terminated on the basis of paragraph 8 of Article 77 of the Labor Code of the Russian Federation. On the same basis, it is possible to dismiss an employee if the employer does not have a job corresponding to the state of health of the employee. This is also stated in paragraph 31 of the Decree of the Plenum of the RF Armed Forces No. 2.

The inconsistency of the employee with the work performed due to insufficient qualifications must be confirmed by the results of certification. Certification is carried out in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of employees.

To qualify, you must issue internal position on attestation, as well as to approve the composition of the attestation commission. At the same time, in order to protect the rights of employees in accordance with Part 3 of Article 82 of the Labor Code of the Russian Federation, the commission in without fail a representative of the elected body of the corresponding primary trade union organization is included.

In addition, the employee must be warned about the upcoming certification. Otherwise, the court will subsequently be able to recognize the dismissal as illegal.

According to paragraph 31 of the Decree of the Plenum of the RF Armed Forces No. 2:

“.... the employer does not have the right to terminate the employment contract with the employee on the named basis, if this employee was not assessed or the certification commission came to the conclusion that the employee complies with the position held or the work performed. At the same time, the conclusions of the attestation commission on business qualities employee are subject to evaluation in conjunction with other evidence in the case.

If the employee was dismissed under clause 3 of part one of Article 81 of the Code, then the employer is obliged to provide evidence proving that the employee refused to be transferred to another job or the employer was not able (for example, due to the lack of vacancies or jobs) to transfer the employee with his consent to another job available to this employer (part three of Article 81 of the Labor Code of the Russian Federation).

In connection with the change of the owner of the property of the organization, the employment contract may be terminated under paragraph 4 of Article 81 of the Labor Code of the Russian Federation with the head, his deputy and the chief accountant. The new owner has the right to dismiss the head, his deputies and the chief accountant no later than three months from the date of his ownership right (Article 75 of the Labor Code of the Russian Federation).

The change of the owner of the property of the organization is not a basis for termination of labor relations with other employees of the organization.

Under the change of ownership of the property of an organization, as indicated in the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2, one should understand the transfer (transfer) of ownership of the property of an organization from one person to another person or other persons (for example, during the privatization of a state or municipal property in accordance with article 1 of the Federal Law of December 21, 2001 No. 178-FZ "On the privatization of state and municipal property", article 217 of the Civil Code of the Russian Federation; when the property owned by the organization is converted into state property (the last paragraph of paragraph 2 of Article 235, and so on). According to the Supreme Court of the Russian Federation, a change in the composition of participants (shareholders) of business partnerships and companies cannot serve as a basis for dismissal under paragraph 4 of Article 81 of the Labor Code of the Russian Federation, since the partnership or company itself remains the owner of the property (paragraph 32 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2) .

On the basis of paragraph 1 of Article 564 of the Civil Code of the Russian Federation, unless otherwise provided by the contract, the ownership of the acquired enterprise passes to the buyer from the moment of state registration. Therefore, it is from this moment that the three-month period provided for by Article 75 of the Labor Code of the Russian Federation begins to be calculated.

Another reason for the dismissal of an employee at the initiative of the employer is the employee’s repeated failure to fulfill his labor duties without good reason if he has a disciplinary sanction (clause 5 of article 81 of the Labor Code of the Russian Federation). Termination of an employment contract on this basis is possible only if the employee has already committed a disciplinary offense for which at least one disciplinary sanction was applied to him in the manner prescribed by the Labor Code of the Russian Federation, and which at the time of dismissal was not withdrawn and extinguished in the manner prescribed by the Labor Code of the Russian Federation. article 194 of the Labor Code of the Russian Federation.

According to Article 192 of the Labor Code of the Russian Federation, disciplinary sanctions that can be applied to a person with whom an employer has concluded an employment contract include:

Comment;

Rebuke;

Dismissal for appropriate reasons.

For the dismissal of an employee on the grounds established by paragraph 5 of Article 81 of the Labor Code of the Russian Federation, the following conditions must be present simultaneously:

Ø repeated non-performance by the employee of labor duties must be identified and documented;

Ø the employee does not have a valid reason for committing a disciplinary offense;

Ø The disciplinary sanction previously imposed on the employee by the time of dismissal has not been removed and not repaid.

Application to the employee of a new disciplinary action, including dismissal under paragraph 5 of Article 81 of the Labor Code of the Russian Federation, is also permissible if the failure to perform or improper performance through the fault of the employee of the labor duties assigned to him continued despite the imposition of a disciplinary sanction (paragraph 33 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. 2).

The dismissal of an employee as a disciplinary sanction is possible on the grounds provided for in paragraphs 5, 6, 9 or 10 of part one of Article 81 or paragraph 1 of Article 336 of the Labor Code of the Russian Federation, as well as paragraph 7 or 8 of part one of Article 81 of the Labor Code of the Russian Federation in cases where the guilty actions , giving grounds for the loss of confidence, or, accordingly, an immoral act committed by the employee at the place of work and in connection with the performance of his labor duties.

For more information about the types of disciplinary sanctions, the procedure for applying and lifting penalties, you can find in the books “Personnel 2005” and “Labor Discipline. Legal regulation. Practice. Documents" by the authors of CJSC " BKR-INTERCOM-AUDIT.

According to Article 193 of the Labor Code of the Russian Federation, dismissal on this basis is possible no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, on vacation, and the time necessary to determine the opinion of the representative body of employees. But, in any case, dismissal is possible no later than six months from the date of the misconduct, and based on the results of an audit, audit of financial and economic activities or an audit, no later than two years from the date of the offense. Moreover, the specified time does not include the time of criminal proceedings.

The employer has the right to dismiss the employee under paragraph 5 of Article 81 of the Labor Code of the Russian Federation even if he applied for dismissal of his own free will, and then committed a disciplinary offense, having a previously imposed and outstanding disciplinary sanction.

When an employee is dismissed for repeated failure to perform labor duties without good reason - paragraph 5 of Article 81 of the Labor Code of the Russian Federation, the employer must have documents (materials of proceedings on the facts of violations, explanations of the employee, orders, etc.) objectively confirming the fact that at least one disciplinary sanction has been applied to the employee, which at the time of repeated non-fulfillment by him without good reason of labor duties was not removed and not repaid.

Non-fulfillment by an employee without valid reasons of labor duties is the failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him.

Failure to perform or improper performance by an employee of labor duties without good reason includes, in particular, violation of the requirements of the law, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the head of the organization, technical rules.

Decree of the Plenum of the RF Armed Forces No. 2 clarifies that such violations include:

a) the absence of an employee without good reason at work or workplace.

On the above grounds, for example, an employee can be dismissed for constant lateness, but the reasons for being late must not be valid.

The list of valid reasons is not established by law. In practice, the court may recognize as valid reasons a call to law enforcement agencies and a court, a medical examination, transport disruptions, accidents, fires, floods, illness of an employee or his close relatives, and the like.

If there is a real possibility, the employee must document (for example, certificates from the relevant organizations, subpoenas, and so on) to confirm the validity of the reasons that resulted in the impossibility of performing work duties.

Note!

At the same time, it must be borne in mind that if the specific workplace of this employee is not specified in the employment contract concluded with the employee, or the local regulatory act of the employer (order, schedule), then in the event of a dispute over the question of where the employee must be at performance of their labor duties, one should proceed from the definition of the concept of "workplace" in part six of Article 209 of the Labor Code of the Russian Federation - these are:

"the place where the worker is required to be or where he is required to arrive in connection with his work and which is directly or indirectly under the control of the employer."

(including representatives of its administration or direct supervisors). Therefore, it is advisable to clearly indicate in the employment contract what exactly is the workplace, especially since this is an additional condition of the employment contract (Article 57 of the Labor Code of the Russian Federation), otherwise the territory of the office will be considered by default, and then even a many-hour smoke break will not be an absence from the workplace. place.

b) the employee’s refusal without good reason to perform labor duties in connection with a change in the established procedure for labor standards (Article 162 of the Labor Code of the Russian Federation), since by virtue of an employment contract, the employee is obliged to perform the labor function defined by this contract, to comply with the internal labor regulations in force in this employer (Article 56 of the Labor Code of the Russian Federation).

Note!

At the same time, it should be borne in mind that the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions is not a violation labor discipline, but serves as the basis for termination of the employment contract under paragraph 7 of Article 77 of the Labor Code of the Russian Federation.

c) refusal or evasion without valid reasons from a medical examination of employees of certain professions, as well as the refusal of an employee to pass work time special training and passing exams on labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work.

Non-use of funds by the employee personal protection, when this is a prerequisite for admission to work, is also considered as a failure by him to fulfill his labor duties and serves as the basis for applying disciplinary measures to him.

Particular attention should be paid to paragraph 36 of Resolution No. 2 of the Plenum of the Supreme Court of the Russian Federation, according to which an employee’s refusal without good reason to conclude an agreement on full liability for the safety of material assets should be considered a guilty violation of labor discipline, if the fulfillment of duties for the maintenance of material assets amounts to for the employee his main job function. Such a refusal is recognized as a failure to fulfill labor duties if the employee, upon hiring, was notified by the employer about the main labor function of servicing material assets, and in accordance with applicable law, an agreement on full liability can be concluded with him.

Lists of positions and works substituted or performed by employees with which the employer may enter into said contracts, as well as the standard forms of these contracts, are determined by the Decree of the Ministry of Labor of the Russian Federation of December 31, 2002 No. 85 “On approval of the lists of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full individual or collective (team) liability, and standard forms agreements on full liability” (hereinafter - Resolution No. 85).

Already after the conclusion of an employment contract with an employee, it may be necessary to conclude an agreement on full liability with the employee. If the employee refuses to conclude an agreement on full liability, the employer is obliged to offer him another job (Article 74 of the Labor Code of the Russian Federation), and in the absence of it or the employee's refusal from the proposed work, the employment contract is subject to termination in accordance with paragraph 7 of Article 77 of the Labor Code of the Russian Federation.

The need to conclude an agreement on full liability after the conclusion of an employment contract may arise due to the fact that after a change in the current legislation, the position occupied by the employee is included in the list of positions with which the employer can enter into agreements on full liability.

According to paragraph 33 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. 2, dismissal under paragraph 5 of Article 81 of the Labor Code of the Russian Federation, as well as the application of a new disciplinary sanction to the employee, is also permissible if the failure to perform or improper performance through the fault of the employee of the labor duties assigned to him continued despite the imposition of a disciplinary sanction.

Since Article 125 of the Labor Code of the Russian Federation provides for the employer's right to early recall an employee from vacation to work only with his consent, the employee's refusal (regardless of the reason) to comply with the employer's order to return to work before the end of the vacation cannot be considered as a violation of labor discipline. This is stated in paragraph 37 of the Decree of the Plenum of the RF Armed Forces No. 2.

In the event of a single gross violation by the employee of labor duties, the employment contract is terminated on the basis of paragraph 6 of Article 81 of the Labor Code of the Russian Federation.

In the event of a labor dispute, the fact of alcoholic, narcotic or other toxic intoxication of an employee and his appearance in such a state at work can be proved by the employer both with the help of a medical report and other types of evidence, for example, witness testimony, this norm is confirmed by paragraph 42 of the Decree of the Supreme Court of the Russian Federation No. 2. The fact that the employee is in the specified state at work, the employer must document the act, which, as a rule, is drawn up by the administration, security workers of the organization (if any). All evidence will be assessed accordingly by the court.

Note.

For more information about the place and procedure for conducting a medical examination to establish the fact of alcohol consumption and intoxication, you can find out by reading the current Temporary Instruction of the USSR Ministry of Health on the procedure for a medical examination to establish the fact of alcohol consumption and intoxication, approved by the USSR Ministry of Health on September 1, 1988 No. 06-14/33-14.

V) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;

On this basis, the termination of labor relations is possible only with an employee whose employment contract, in accordance with Article 57 of the Labor Code of the Russian Federation, provides for a condition on non-disclosure of this secret. The information that the employee disclosed must be classified in accordance with the current legislation as a state, official, commercial or other secret protected by law.

The list of information constituting a state secret is determined by the Law of the Russian Federation of July 21, 1993 No. 5485-1 "On State Secrets" (hereinafter - Law No. 5485-1), as well as by Decree of the President of the Russian Federation of February 11, 2006 No. 90 "On the list information classified as state secrets.

The definition of the concepts "official secret" and "" is given in article 139 of the Civil Code of the Russian Federation. So, according to Article 139 of the Civil Code of the Russian Federation:

“Information constitutes an official or commercial secret in the case when the information has actual or potential commercial value due to its unknownness to third parties, there is no free access to it on a legal basis, and the owner of the information takes measures to protect its confidentiality. Information that cannot constitute an official or commercial secret shall be determined by law and other legal acts.”

The list of information constituting an official or commercial secret of the organization is determined by the head of the organization. At the same time, it should be remembered that the list of information that cannot constitute a commercial secret is approved by the Decree of the Government of the RSFSR of December 5, 1991 No. 35 “On the list of information that cannot constitute a commercial secret”.

Thus, in order to dismiss an employee on this basis, the following conditions must be met:

1) the employee must be familiarized against signature with the list of information that is a (state, commercial, official) secret;

2) the obligation not to disclose such a secret is directly provided for by the employment contract with the employee or in an annex to it;

3) the specified information must become known to the employee in connection with the performance of his labor duties.

4) the employer has taken the necessary measures to protect the confidentiality of the said information.

Note!

IN new edition The Labor Code of the Russian Federation clarified the concept of "disclosure of a secret protected by law": disclosure of personal data of another employee that became known to the employee in connection with the performance of his labor duties.

The introduction of this norm in the Labor Code of the Russian Federation, first of all, is due to the fact that the personal data of an employee by Decree of the President of the Russian Federation of March 6, 1997 No. 188 "On Approval of the List of Confidential Information" are classified as confidential information, which must be properly protected.

Personal secrets, family secrets, privacy, protection of the honor and good name of a citizen are guaranteed by the Constitution of the Russian Federation (Article 23). The disclosure of this secret, that is, the uncontrolled dissemination of personal data in time and space, can cause significant damage to an individual.

The Labor Code of the Russian Federation establishes the basic requirements for the processing of personal data of an employee and guarantees for their protection (Articles 85-90 of the Labor Code of the Russian Federation).

For more information on issues related to the requirements for the processing of personal data of employees and the organization of the procedure for working with them, you can find in the book "Personnel Records Management" by the authors of CJSC " BKR-INTERCOM-AUDIT.

G) committing at the place of work theft (including small) of another's property, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to deal with cases administrative offenses;

“Theft is understood as the unlawful gratuitous seizure and (or) conversion of another's property in favor of the guilty person or other persons, committed for mercenary purposes, that caused damage to the owner or other owner of this property. a” (Article 158 of the Criminal Code of the Russian Federation).

Property not owned this employee(property belonging to the employer, other employees, as well as persons who are not employees of this organization) should be considered someone else's. The fact of theft, waste, deliberate destruction or damage to someone else's property must be committed at the place of work and established in the manner prescribed by law: by a court verdict that has entered into legal force or by a decision of a judge, body, official authorized to apply administrative penalties.

The bodies authorized to consider cases of administrative offenses are defined in chapters 22, 23 of the Code of Administrative Offenses of the Russian Federation.

The established one-month period for the application of such a disciplinary sanction is calculated from the date the court verdict or the decision of the body authorized to apply administrative penalties comes into force (paragraph 44 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. 2).

d) violation of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed grave consequences (accident, catastrophe) or knowingly created a real threat of such consequences.

The obligations of the employer to ensure safe conditions and labor protection are regulated by Article 212 of the Labor Code of the Russian Federation. According to Article 212 of the Labor Code of the Russian Federation, the employer is obliged to familiarize employees with the requirements of labor protection, which must be confirmed by relevant documents. If this obligation is observed by the employer, however, as a result of violation of these requirements by the employee, serious consequences occurred or there was a real threat of their occurrence, the employer has the right to terminate the employment contract with this employee in accordance with paragraph 6 of Article 81 of the Labor Code of the Russian Federation. Violation of labor protection requirements by the employee in this case must be established by the commission on labor protection or the commissioner for labor protection and documented (an act of investigation of an accident at work, an expert opinion, a resolution of the federal inspector for labor protection and other documents).

Paragraph 38 of Resolution No. 2 of the Plenum of the Supreme Court of the Russian Federation states that a single violation by an employee of labor duties, if this violation is not expressly provided for in paragraph 6 of Article 81 of the Labor Code of the Russian Federation, cannot be a reason for dismissal of an employee.

The commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer, serves as the basis for terminating the employment contract under paragraph 7 of Article 81 of the Labor Code of the Russian Federation. This ground for dismissal applies to employees who directly serve monetary or commodity values.

As a rule, the circle of persons directly servicing monetary or commodity values ​​basically coincides with the circle of persons with whom, in accordance with the law, an agreement on full liability can be concluded. In this regard, one should be guided by the List of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full individual liability for the shortage of entrusted property, and the List of works during the performance of which full collective (team) liability for the shortage can be introduced. property entrusted to employees, approved by Resolution No. 85.

However, if the employee does not directly serve monetary or commodity values, he cannot be dismissed under paragraph 7 of Article 81 of the Labor Code of the Russian Federation. For example, it would be illegal to dismiss the chief accountant on this basis, since, in accordance with the current legislation, he cannot be assigned duties related to direct liability for money and material possessions.

The guilt of the employee is established by the employer on the basis of the evidence available to him, which are documents, testimonies of witnesses confirming the fact of measuring, calculating, negligence of the employee, and so on.

According to clause 45 of Decree of the Plenum of the Supreme Court of the Russian Federation No. 2, when the fact of embezzlement, bribery and other mercenary offenses is established in the manner prescribed by law, such employees can be dismissed on the basis of loss of confidence in them and in the event that these actions are not related to their work.

At the same time, the legislator introduced new normal: dismissal of an employee on the grounds provided for in paragraph 7 of Article 81 of the Labor Code, in cases where the guilty actions that give rise to loss of confidence are 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 misconduct by the employer.

The employer may terminate the employment contract if an unreasonable decision is made 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 misuse or other damage to the property of the organization.

It should be noted that dismissal under paragraph 9 of Article 81 of the Labor Code of the Russian Federation is possible regardless of whether the adoption of this decision is the result of the employee’s guilty behavior or his lack of competence. But the employer, in the event of a labor dispute, will need to prove a causal relationship between an unreasonable decision and the consequences that have occurred. When deciding whether the decision was unreasonable, it is necessary to consider whether adverse consequences (violation of the safety of property, its misuse or other damage to the property of the organization) could have been avoided if another decision was made. In this regard, the Plenum of the Supreme Court of the Russian Federation in paragraph 48 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 clarified the following:

“If the defendant does not provide evidence confirming the occurrence of adverse consequences specified in paragraph 9 of Article 81 of the Code, dismissal on this basis cannot be recognized as lawful.”

The head of an organization (branch, representative office), his deputies may be dismissed in the event of a single gross violation of their labor duties under paragraph 10 of Article 81 of the Labor Code of the Russian Federation. As a gross violation of labor duties by the head of the organization (branch, representative office), his deputies is recognized, in particular, the failure to fulfill the duties assigned to these persons by the employment contract, which could lead to property damage to the organization or harm to the health of employees. In the event of a labor dispute, the employer is obliged to prove that the violation of labor duties actually took place and was of a gross nature, and the court, taking into account the specific circumstances of each case, decides whether the violation was gross.

For more information on issues related to the specifics of the dismissal of the head of an organization (branch, representative office), his deputies and the chief accountant as a disciplinary measure, you can find in the book “Labor Discipline. Legal regulation. Practice. Documents" by the authors of CJSC " BKR-INTERCOM-AUDIT.

When an employee submits false documents at the conclusion of an employment contract to an employer, it entails the termination of the employment contract under paragraph 11 of Article 81 of the Labor Code of the Russian Federation. As already mentioned, article 65 of the Labor Code of the Russian Federation provides a list of documents to be presented at the conclusion of an employment contract. An employee may be dismissed if he submits false documents from the specified list.

Note!

The legislator amended paragraph 11 of Article 81 of the Labor Code of the Russian Federation: now dismissal for providing knowingly false information is excluded. Thus, the employment contract cannot be terminated by the employer if the employee provides the employer with knowingly false information when concluding the employment contract. Such information can be, for example, employee information about the ability to perform a particular job. The probationary period in this case becomes more applicable.

In addition, paragraph 12 of Article 81 of the Labor Code of the Russian Federation, according to which the dismissal was carried out in connection with the termination of access to state secrets, if the work performed required access to state secrets, became invalid.

The employment contract with the head of the organization, as well as with members of the collegial executive body of the organization, may include grounds for terminating the employment contract at the initiative of the employer, which are not contained in labor legislation. In the event of the dismissal of these workers, in the work book, as the basis for dismissal, a reference is made to paragraph 13 of Article 81 of the Labor Code of the Russian Federation, as well as to the corresponding paragraph of the employment contract.

An employment contract is subject to termination under paragraph 14 of Article 81 of the Labor Code of the Russian Federation in other cases established by the Labor Code of the Russian Federation and other federal laws. For example, articles 71, 278, 288, 307, 312, 336, 347 of the Labor Code of the Russian Federation. Federal Law No. 8-FZ of January 8, 1998 “On the Fundamentals of the Municipal Service in the Russian Federation”, Federal Law No. 79-FZ of July 27, 2004 “On the State Civil Service of the Russian Federation”, using the term “service (labor) activity”, also provide grounds for terminating a service contract.

Note that the dismissal of an employee at the initiative of the employer often leads to litigation. Therefore, when dismissing an employee under any clause of Article 81 of the Labor Code of the Russian Federation, the employer, defending his position in court, must prove that the dismissal was justified, while collecting all the necessary information and evidence, as well as witness testimony. In addition, it is necessary to ensure that all orders and instructions are available, documents upon dismissal are drawn up in accordance with the law.

For more information on issues related to preparing for litigation in labor disputes, you can find in the book " court order consideration of labor cases. Legal regulation. Practice. Documents" by the authors of CJSC " BKR-INTERCOM-AUDIT.

At transfer of an employee at his request or his consent to work for another employer or when transferred to an elective job (position), the employee must be dismissed under paragraph 5 of Article 77 of the Labor Code of the Russian Federation. The basis for dismissal is an invitation to work in writing from a new employer.

When terminating an employment contract in connection with the transfer of an employee to work with another employer in accordance with paragraph 6.1 of Instruction No. 69, column 3 of the section “Information about work” of the work book indicates in what order the transfer is carried out: at the request of the employee or with his consent.

When terminating an employment contract in connection with the transfer of an employee to an elective job (position) to another employer, in accordance with paragraph 6.2 of Instruction No. 69, an entry is made in the work book: “Fired due to the transfer to an elective job (position) in (name of the organization is indicated) , paragraph 5 of Article 77 of the Labor Code of the Russian Federation”.

Article 64 of the Labor Code of the Russian Federation states:

“It is forbidden to refuse to conclude an employment contract to employees invited in writing to work by transfer from another employer within one month from the date of dismissal from their previous place of work.”

That is, a new employer cannot refuse to conclude an employment contract with an employee invited in writing to work within a month.

It should be noted that without the written consent of the employee to transfer to another employer, dismissal is prohibited with reference to paragraph 5 of Article 77 of the Labor Code of the Russian Federation. In this case, the dismissal is carried out on other grounds specified in Article 77 of the Labor Code of the Russian Federation. In addition, if the former employer does not agree to the dismissal in the order of transferring the employee to a new place of work, then the employment contract cannot also be terminated under paragraph 5 of Article 77 of the Labor Code of the Russian Federation. The employee has the right to apply for dismissal at his own request.

If the employee refuses to continue working due to a change in the owner of the organization’s property, a change in the organization’s jurisdiction (subordination) or its reorganization, the employment contract is terminated under paragraph 6 of Article 77 of the Labor Code of the Russian Federation.

When changing the owner of the property of the organization, the new owner has the right to terminate the employment contract only with the head of the organization, his deputies and the chief accountant. The change of the owner of the property of the organization is not the basis for the termination of labor relations with other employees. But if the employee refuses to continue working due to a change in the owner of the organization’s property, the employment contract is terminated under paragraph 6 of Article 77 of the Labor Code of the Russian Federation.

In case of reorganization (merger, accession, division, separation, transformation) of the organization, labor relations, in accordance with Article 75 of the Labor Code of the Russian Federation, continue with the consent of the employee. Employees who wish to work in a newly created organization are not fired, but transferred, according to their applications, to new positions. If the employee refuses to continue the employment relationship in connection with the reorganization of the organization, the employment contract is terminated under paragraph 6 of Article 77 of the Labor Code of the Russian Federation.

A similar situation arises when changing the jurisdiction (subordination) of the organization. According to Article 75 of the Labor Code of the Russian Federation, labor relations continue with a change in the jurisdiction (subordination) of the organization with the consent of the employee. Otherwise, the employment contract is terminated in accordance with paragraph 6 of Article 77 of the Labor Code of the Russian Federation.

At refusal of the employee to continue work in connection with change determined by the parties terms of the employment contract, the employment contract is terminated in accordance with paragraph 7 of Article 77 of the Labor Code of the Russian Federation.

At the same time, for dismissal on the above grounds, a change in both mandatory and additional conditions has the same legal significance, and the previous version of the Labor Code of the Russian Federation indicated only the essential conditions of the employment contract.

Changes in the terms of the employment contract determined by the parties, which worsen the position of the employee in comparison with the established collective agreement, agreements, in accordance with Article 74 of the Labor Code of the Russian Federation, cannot be introduced by the employer.

The terms of the employment contract can be changed only by agreement of the parties, except as provided for by the Labor Code of the Russian Federation. An agreement to change the terms of an employment contract determined by the parties is concluded in writing and is an integral part of the employment contract.

However, the legislator allows the possibility of changing the terms of the employment contract determined by the parties unilaterally - at the initiative of the employer, but only for reasons related to changes in organizational or technological working conditions and in the event of prior notice to the employee in writing (Article 74 of the Labor Code of the Russian Federation). At the same time, at the initiative of the employer, it is allowed to change all the terms of the employment contract determined by the parties, with the exception of changing the labor function of the employee.

The employer must warn the employee in writing about the forthcoming change in the terms of the employment contract determined by the parties at the initiative of the employer and about the reasons that necessitated such changes, no later than two months before their introduction, unless otherwise provided by the Labor Code of the Russian Federation.

If the previous terms of the employment contract cannot be maintained, and the employee does not agree to continue working under the new conditions, the employer is obliged to offer him another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, or a vacant lower position or lower-paid work) that the employee can perform, taking into account his state of health. The employer must do this in writing. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

According to Article 74 of the Labor Code of the Russian Federation, if the employer does not have an appropriate job, and also if the employee refuses another job offered to him, the employment contract with him on this basis is terminated under paragraph 7 of Article 77 of the Labor Code of the Russian Federation.

In the event of a labor dispute, if the employee dismissed under paragraph 7 of Article 77 of the Labor Code of the Russian Federation was not warned about the change in the terms of the employment contract determined by the parties two months before the termination of the employment contract with him, the court (based on established judicial practice) may change the date of dismissal so that the employment relationship was terminated on the day of expiration of the said period. In addition, if the employee was dismissed due to the introduction of new working conditions before the expiration of the two-month period, the court may also change the date of dismissal, taking into account the time remaining before the expiration of the specified period.

If changes in organizational or technological working conditions may lead to mass dismissal of workers, the employer, in accordance with Article 74 of the Labor Code of the Russian Federation, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization, to introduce a part-time (shift) regime and ( or) part-time work week, but only for up to six months.

If the employee refuses to continue working on a part-time (shift) and (or) part-time working week, then the employment contract is terminated with him in accordance with paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation, that is, according to the rules for reducing the number or staff of employees of the organization , an individual entrepreneur with the provision of appropriate guarantees and compensations to the employee.

Cancellation of the part-time (shift) regime and (or) part-time working week before the expiration of 6 months from the date of its introduction is carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization.

An employee who, according to a medical report, needs to be provided with another job, the employer is obliged, with his consent, to transfer to another job that is not contraindicated to him for health reasons. The employee's refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job by the employer is the basis for termination of the employment contract under paragraph 8 of Article 77 of the Labor Code of the Russian Federation . In other words, a medical report should prohibit the employee from continuing previous work, in connection with which, the employer is obliged either to transfer the employee, or, if the employer does not have a corresponding job, to dismiss him under paragraph 8 of Article 77 of the Labor Code of the Russian Federation.

At the same time, in the event of the transfer of an employee who, in accordance with a medical report, needs to be provided with another job, to another permanent lower-paid job with this employer in accordance with Article 182 of the Labor Code of the Russian Federation, he retains his previous average earnings for one month from the date of transfer.

In accordance with paragraph 1 of Article 72.1. Labor Code of the Russian Federation temporary or permanent transfer to work in another locality together with the employer is allowed only with the written consent of the employee. Since the transfer of an employee to work in another locality is a change in the terms of the employment contract determined by the parties, in the event refusal of the employee to transfer to work in another area together with the employer the employment contract with him is terminated in accordance with paragraph 9 of Article 77 of the Labor Code of the Russian Federation.

One of the grounds for termination of an employment contract in accordance with paragraph 10 of Article 77 of the Labor Code of the Russian Federation includes circumstances beyond the control of the parties.

Circumstances beyond the control of the parties, according to Article 83 of the Labor Code of the Russian Federation, include:

call for an employee military service or his assignment to an alternative civilian service that replaces it. Upon presentation by the employee of the summons of the military registration and enlistment office to appear at the recruiting station for service, the employer is obliged to issue an appropriate order to dismiss the employee, and the employment contract is terminated under paragraph 1 of Article 83 of the Labor Code of the Russian Federation.

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

non-election to office;

· condemnation of the employee to a punishment that precludes the continuation of the previous work, in accordance with a court verdict that has entered into force;

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

death of an employee or employer - an individual, as well as recognition by the court of an employee or employer - an individual as dead or missing;

the onset of emergency circumstances that prevent the continuation of labor relations, if this circumstance is recognized by a decision of the Government of the Russian Federation or a public authority of the relevant subject of the Russian Federation. These emergency circumstances include: military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances, upon the occurrence of which the employment contract is terminated under paragraph 7 of Article 83 of the Labor Code of the Russian Federation.

disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract;

expiration, suspension for more than two months, or deprivation of an employee of a special right (license, right to manage vehicle, the right to bear arms, other special rights) in accordance with the Federal Laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility for the employee to fulfill the obligations under the employment contract;

termination of access to state secrets, if the work performed requires such access;

Note!

Previously, the employment contract was terminated at the initiative of the employer in the event of termination of the employee's access to state secrets, if the work performed requires access to state secrets under paragraph 12 of Article 81 of the Labor Code of the Russian Federation, which has become invalid in the new version of the Labor Code of the Russian Federation. Relations on admission to state secrets are regulated by the Law of the Russian Federation No. 5485-1. The conditions for terminating the access of an official or citizen to state secrets are defined in Article 23 of the Law of the Russian Federation No. 5485-1:

“The admission of an official or citizen to state secrets may be terminated by decision of the head of a state authority, enterprise, institution or organization in the following cases:

termination of an employment agreement (contract) with him in connection with the implementation of organizational and (or) staff events;

a single violation by him of his obligations under the employment contract (contract) related to the protection of state secrets;

the occurrence of circumstances that, in accordance with Article 22 of this Law, are grounds for refusing to allow an official or citizen access to state secrets.

If, for one of the reasons given, the employee’s access to state secrets is terminated and, as a result, he loses the opportunity to continue to carry out his labor functions, the employer may terminate the employment contract under paragraph 10 of Article 83 of the Labor Code of the Russian Federation.

· Cancellation of the court decision or cancellation (recognition as illegal) of the decision of the state labor inspectorate to reinstate the employee at work.

Note!

The legislator has introduced new circumstances for terminating an employment contract that do not depend on the will of the parties: disqualification or other administrative punishment that precludes the employee from fulfilling the obligations under the employment contract and expiration, suspension of validity for more than two months or deprivation of the employee of a special right (license, right to drive a vehicle, the right to bear arms, other special rights) in accordance with the Federal Laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility for the employee to fulfill the obligations under an employment contract.

Types of administrative penalties are listed in Article 3.2. Code of Administrative Offenses of the Russian Federation:

1) warning;

2) an administrative fine;

3) paid seizure of the instrument of committing or the subject of an administrative offense;

4) confiscation of the instrument of committing or the subject of an administrative offense;

5) deprivation of a special right granted to an individual;

6) administrative arrest;

7) administrative expulsion from the Russian Federation of a foreign citizen or stateless person;

8) disqualification;

9) administrative suspension of activities.

Disqualification, according to article 3.11. of the Code of Administrative Offenses of the Russian Federation, consists in depriving an individual of the right to hold senior positions in the executive management body of a legal entity, to be a member of the board of directors (supervisory board), to exercise entrepreneurial activity for the management of a legal entity, as well as to manage a legal entity in other cases provided for by the legislation of the Russian Federation. Administrative punishment in the form of disqualification is appointed by the judge. Disqualification is established for a period of six months to three years. Disqualification may be applied to persons exercising organizational and administrative or administrative and economic functions in the body of a legal entity, to members of the board of directors, as well as to persons engaged in entrepreneurial activities without forming a legal entity, including arbitration managers.

So, according to paragraph 2 of article 5.27. Code of Administrative Offenses of the Russian Federation, an official may be disqualified by a court decision for a period of one to three years if this official has violated labor and labor protection legislation, and has previously been subjected to administrative punishment for a similar administrative offense (for example, the first time he did not settlement upon dismissal of one, and later - upon dismissal of another employee).

According to article 3.8. The Code of Administrative Offenses of the Russian Federation deprivation of a natural person who has committed an administrative offense of a special right previously granted to him is established for gross or systematic violation of the procedure for using this right in cases provided for by the articles of the Special Part of the Code of Administrative Offenses of the Russian Federation. Deprivation of a special right is appointed by a judge. The period of deprivation of a special right may not be less than one month and more than two years.

Deprivation of a special right in the form of the right to drive a vehicle is provided, for example, for such offenses: violation of the rules or norms for the operation of tractors, self-propelled, road-building and other machines and equipment (Article 9.3 of the Code of Administrative Offenses of the Russian Federation); driving a vehicle by a driver who does not have the right to drive a vehicle (Article 12.7 of the Code of Administrative Offenses of the Russian Federation); driving a vehicle by a driver who is in a state of intoxication (Article 12.8 of the Code of Administrative Offenses of the Russian Federation); exceeding the established speed of the vehicle (Article 12.9 of the Code of Administrative Offenses of the Russian Federation) and others.

It should be noted that in the following cases, 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 a job corresponding to the employee’s qualifications, or a vacant lower position or lower-paid job) that the employee can perform according to his state of health:

1. reinstatement at work by decision of the state labor inspectorate or court of an employee who previously performed this work;

2. disqualification or other administrative punishment, excluding the possibility of the employee fulfilling the obligations under an employment contract;

3. expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to drive a 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 to fulfill the obligations under the employment contract;

4. termination of access to state secrets, if the work performed requires such access.

At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

Upon termination of an employment contract due to circumstances beyond the control of the parties, in accordance with paragraph 5.4 of Instruction No. 69, an entry is made in the work book about the grounds for terminating the employment contract with reference to the relevant paragraph of Article 83 of the Labor Code of the Russian Federation.

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 precludes the possibility of continuing work, is the basis for termination of the employment contract under paragraph 11 of Article 77 of the Labor Code of the Russian Federation.

An employment contract is terminated due to a violation of the rules for its conclusion established by the Labor Code of the Russian Federation or other federal law, if the violation of these rules excludes the possibility of continuing work in the following cases:

1) the conclusion of an employment contract in violation of a court verdict depriving a particular person of the right to hold certain positions or engage in certain activities. In this case, the termination of the employment contract is made if the employee, with his written consent, cannot be transferred to another job available to the employer.

2) the conclusion of an employment contract for the performance of work that is contraindicated for this employee for health reasons in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation;

3) the absence of an appropriate document on education, if the performance of work requires special knowledge in accordance with a federal law or other regulatory legal act;

4) the conclusion of an employment contract in violation of the decision of a judge, body, official authorized to consider cases of administrative offenses, on disqualification or other administrative punishment, excluding the possibility for the employee to fulfill the obligations under the employment contract;

5) in other cases provided for by federal laws.

In the cases listed above, in accordance with Article 84 of the Labor Code of the Russian Federation, 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 a job corresponding to the employee’s qualifications, and a vacant lower position or a lower paid job), which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

In case of violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation or other federal law, the legislator obliges the employer to pay the employee a severance pay in the amount of the average monthly earnings, but only if the employee is not at fault.

If the violation of these rules is due to the fault of the employee, then the employer is not obliged to offer him another job, and the employee is not paid severance pay.

Instruction No. 69 does not provide for special rules for making a record of dismissal on the basis of paragraph 11 of Article 77 of the Labor Code of the Russian Federation. Therefore, when an employee is dismissed on the basis of paragraph 11 of Article 77 of the Labor Code of the Russian Federation, the work book does not specify which rule for concluding an employment contract is violated, only the mentioned paragraph of Article 77 of the Labor Code of the Russian Federation is indicated without reference to Article 84 of the Labor Code of the Russian Federation.

An employment contract, in accordance with Part 2 of Article 77 of the Labor Code of the Russian Federation, may also be terminated on other grounds provided for by the Labor Code of the Russian Federation and other federal laws. For example, in accordance with the additional grounds for terminating an employment contract with a teacher established by Article 336 of the Labor Code of the Russian Federation, the rector, vice-rector, head of a branch (institute) in state and municipal higher educational institutions, upon reaching the age limit (65 years) to fill the corresponding position, is subject to dismissal part 2 of article 77 of the Labor Code of the Russian Federation. The Labor Code of the Russian Federation also provides additional grounds for terminating an employment contract with the head of an organization (Article 278 of the Labor Code of the Russian Federation), additional grounds for terminating an employment contract with persons working part-time (Article 288 of the Labor Code of the Russian Federation) and others.

In more detail, with questions regarding the procedure for concluding labor contracts with persons entering a construction organization, the content and terms of an employment contract, the procedure for terminating an employment contract, as well as the general procedure for registration when hiring and the specifics of hiring foreign workers and workers for part-time, you can find in the book of the authors of CJSC "BKR-Intercom-Audit" "Construction. Models of employment contracts.

Termination of an employment contract means the end of the employment relationship between the employee and the employer. In the current labor legislation, along with the concept of "termination of an employment contract", there are other concepts that mean the end of labor relations between the parties to an employment contract: "termination of an employment contract" and "dismissal". These concepts are close in meaning, but are not identical and differ in their legal content.

Thus, the termination of an employment contract is the end of the employment relationship between the employee and the employer. "Termination of an employment contract" is the most general and broad concept that covers all cases of termination of a concluded employment contract, termination of an employment relationship (by agreement of the parties; at the initiative of an employee or employer; at the request of authorized third parties; on grounds that exclude for any circumstances, the possibility of continuing the employment relationship, etc.).

The concept of "dismissal of an employee", in fact, is close to the concept of "termination of an employment contract", but it does not cover cases of termination of an employment contract due to circumstances beyond the control of the parties.

"Cancellation of an employment contract" is a narrower concept, it is a volitional termination of employment relations at the initiative of one of the parties to the employment contract or at the initiative of certain bodies that have the right to demand this termination. The difference between the concept of "termination of an employment contract" and the concept of "termination of an employment contract" is that the first covers both volitional unilateral and bilateral actions, as well as events, and the second covers only unilateral volitional actions.

An employment contract is terminated only if there are certain grounds for its termination and compliance with the rules for dismissing an employee on this specific basis. The basis for terminating an employment contract is a life circumstance, which is enshrined in law as a legal fact necessary for terminating an employment relationship. Termination of the employment contract means at the same time the dismissal of the employee.

An entire chapter is devoted to the termination of an employment contract in the Labor Code of the Russian Federation - 13, which provides for the grounds and procedure for terminating an employment contract. At the same time, the Labor Code of the Russian Federation is not the only legal act regulating the termination of an employment contract. Thus, the grounds for termination of employment contracts, other than those given in the Labor Code of the Russian Federation, are contained in a number of other federal laws.

It should be noted that the terms of the employment contract may also establish additional grounds for dismissal, if this is allowed by the current legislation and does not contradict it. The Labor Code of the Russian Federation regulates the right of the parties to an employment contract, in certain cases, to include in the employment contract additional grounds for termination of employment relations (Articles 278, 307, 312, 347 of the Labor Code of the Russian Federation).

Termination of an employment contract is considered legal provided that, in addition to the grounds provided for by law, the employer complies with the established procedure for terminating an employment contract, and also provides guarantees upon dismissal established by law for certain categories of employees.

Thus, it is not allowed to dismiss an employee at the initiative of the employer during the period of his temporary disability and during his vacation (part 3 of article 81 of the Labor Code of the Russian Federation), pregnant women, as well as women with children under the age of three, single mothers raising a child under the age of 14 years (a disabled child under eighteen years of age), other persons raising these children without a mother, at the initiative of the employer, is not allowed (with the exception of dismissal under clause 1, sub-clause "a" clause 3, clause 5-8, 10 and 11 article 81 of the Labor Code of the Russian Federation).

The dismissal of an employee under paragraph 5 of Article 82 of the Labor Code of the Russian Federation is carried out taking into account the reasoned opinion of the elected trade union body of this organization in accordance with Art. 373 of the Labor Code of the Russian Federation.

The employer has the right to terminate the employment contract no later than one month from the date of receipt of the reasoned opinion of the elected trade union body.

Consideration of the opinion of the trade union body is not required if an employee who is not a member of a trade union is dismissed or the organization has a trade union, but the employee is connected by membership relations with another trade union that does not have a primary trade union body in this organization.

Representatives of employees participating in collective bargaining, during the period of their conduct, cannot be dismissed at the initiative of the employer without the prior consent of the authority. Authorizing them to represent, except in cases of termination of the employment contract for committing a misdemeanor, for which, in accordance with the Labor Code of the Russian Federation, other federal laws provide for dismissal from work.

Termination of an employment contract with an employee under the age of 18 at the initiative of the employer (except in cases of liquidation of the organization), in addition to observing the general procedure, is allowed only with the consent of the relevant state labor inspectorate and the commission on minors.

According to Art. 374 of the Labor Code of the Russian Federation dismissal at the initiative of the employer in accordance with paragraph 2, sub. "b" paragraph 3 and paragraph 5 of Art. 81 of the Labor Code of the Russian Federation of heads (their deputies) of the elected trade union collegial bodies of the organization, its structural divisions (not lower than the shop and equated to them), not released from their main work, in addition to the general procedure, dismissal is allowed only with the prior consent of the relevant higher elected trade union body.

However, the provisions of the first part of Art. 374 of the Labor Code of the Russian Federation are subject to application in accordance with the constitutional and legal meaning identified in the ruling of the Constitutional Court of the Russian Federation dated December 4, 2003 No. 235 of the Labor Code of the Russian Federation and paragraph 3 of Art. 25 of the Federal Law “On Trade Unions, Their Rights and Guarantees of Activity”, which recognized the norms contained in federal laws and prohibiting the dismissal of an employee who has committed an unlawful act, which is a legal basis for terminating an employment contract at the initiative of the employer, to be inconsistent with the Constitution. The establishment in the Labor Code of the Russian Federation of guarantees for an employee upon his dismissal for repeated non-performance without good reason of labor duties, if he has a disciplinary sanction, is a disproportionate restriction of the rights of the employer as a party to the employment contract and at the same time the subject economic activity and the owner. This kind of restriction is not due to the need to protect the rights and freedoms enshrined in Art. 30 (part 1), 37 (part 1) and 38 (part 1 and 2) of the Constitution of the Russian Federation, violates the code of economic (entrepreneurial) activity, property rights, distorts the essence of the principle of freedom of labor and therefore contradicts the provisions of Art. 8, 34 (part 1), 35 (part 2), 37 (part 1) and 55 (part 3) of the Constitution of the Russian Federation.

General grounds termination of the employment contract.

General grounds for termination of an employment contract are contained in Article 77 of the Labor Code of the Russian Federation

The grounds for termination of an employment contract are:

1) agreement of the parties (Article 78 of the Labor Code of the Russian Federation);

2) the expiration of the term of the employment contract (Article 79 of the Labor Code of the Russian Federation), except in cases where the employment relationship actually continues and none of the parties has demanded their termination;

3) termination of the employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation);

4) termination of the employment contract at the initiative of the employer (Articles 71 and 81 of the Labor Code of the Russian Federation);

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

6) the employee's refusal to continue working in connection with a change in the owner of the organization's property, with a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of the Labor Code of the Russian Federation);

7) the employee's refusal to continue work in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of the Labor Code of the Russian Federation);

8) the employee's refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer (parts three and four of Article 73 of the Labor Code of the Russian Federation);

9) the employee's refusal to be transferred to work in another locality together with the employer (part one of Article 72.1 of the Labor Code of the Russian Federation);

10) circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation);

11) 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 (Article 84 of the Labor Code of the Russian Federation).

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

Termination of an employment contract by agreement of the parties implies the mutual desire of the employee and the employer to terminate the employment contract (Article 79 of the Labor Code of the Russian Federation). The employment contract is terminated at the time agreed by the parties, that is, at any time. The agreement on termination of the employment contract does not exclude the possibility of dismissal of the employee at his own request or, if there are grounds for this, at the initiative of the employer.

Termination of the employment contract at the initiative of the employee implies the desire to terminate the employment contract of one party (employee), and the employer is obliged to terminate relations with the employee after the warning period has expired.

The employee has the right to terminate the employment contract by notifying the employer in writing no later than two weeks in advance, unless another period is established by the Labor Code of the Russian Federation or other federal law. The specified period begins the next day after the employer receives the employee's application for dismissal.

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

In cases where the employee’s application for dismissal on his own initiative (of his own free will) is due to the impossibility of continuing his work (enrollment in an educational institution, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts, containing norms of labor law, local regulations, terms of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee's application.

Prior to the expiration of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out if another employee is not invited to his place in writing, who, in accordance with the Labor Code of the Russian Federation and other federal laws, cannot be refused to conclude an employment contract.

The employer, before the expiration of the notice of dismissal, is not deprived of the right to dismiss the employee if he has committed an offense that is the basis for dismissal.

Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer is obliged to give the employee a work book, other documents related to work, at the written request of the employee, and make the final settlement with him.

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

The right to terminate the employment contract at the initiative of the employee is granted not only to the employee who has concluded an employment contract for an indefinite period, but also to the employee working under a fixed-term employment contract.

If an application for termination of an employment contract is submitted by an employee who has not reached the age of 18, the consent of the relevant state labor inspectorate and the commission on minors must first be obtained.

Resolution of the Plenum Supreme Court RF No. 2 dated March 17, 2004 contains a provision explaining to the courts the issues of application of legislation governing the termination of an employment contract at the initiative of an employee concluded for an indefinite period, as well as a fixed-term employment contract (clause 3 of article 77, article 80 of the Labor Code of the Russian Federation). Keep in mind the following:

a) termination of the employment contract at the initiative of the employee is permissible in the case when the filing of an application for dismissal was his voluntary expression of will. If the plaintiff claims that the employer forced him to submit a resignation letter of his own free will, then this circumstance is subject to verification and the obligation to prove it rests with the employee;

b) the employment contract may be terminated at the initiative of the employee and before the expiration of the two-week notice period for dismissal by agreement between the employee and the employer.

An employment contract may be terminated at the initiative of the employer in the following cases:

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

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

3) non-compliance of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification;

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

5) repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;

6) a single gross violation of labor duties by an employee:

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

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

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

d) committing at the place of work theft (including small) property of others, embezzlement, its deliberate 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 protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;

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

8) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

9) making an unreasonable 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) submission by the employee to the employer of false documents when concluding an employment contract;

12) is no longer valid.

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

14) in other cases established by the Labor Code of the Russian Federation and other federal laws.

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

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

In the event of termination of the activities of a branch, representative office or other separate structural subdivision of an organization located in another locality, termination of employment contracts with employees of this subdivision is carried out according to the rules provided for in 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 the guilty actions that give grounds for the 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 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 (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during the period of vacation.

When considering a case on the reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.

When considering reinstatement cases, it should be borne in mind that when implementing the guarantees provided by the Labor Code of the Russian Federation to employees in the event of termination of an employment contract with them, the general legal principle of the inadmissibility of abuse of the right, including by the employees themselves, must be observed. In particular, it is unacceptable for an employee to conceal temporary disability at the time of his dismissal from work or the fact that he is a member of a trade union or the head (his deputy) of an elected trade union collegial body of an organization, its structural divisions (not lower than shop and equated to them), not released from the main job, when the decision on the issue of dismissal should be made in compliance with the procedure for taking into account the reasoned opinion of the elected trade union body of the organization or, accordingly, with the prior consent of the higher elected trade union body.

If the court establishes that the employee has abused the right, the court may refuse to satisfy his claim for reinstatement (changing the date of dismissal at the request of the employee dismissed during the period of temporary incapacity for work), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of dishonest actions on the part of the employee (clause 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004).

As a general rule, the parties cannot include in the employment contract additional grounds for the dismissal of employees other than those provided for in the law, as this can be considered as a decrease in the level of guarantees for employees. In accordance with Part 2 of Art. 9 of the Labor Code of the Russian Federation, labor contracts cannot contain conditions that restrict the rights or reduce the level of guarantees for employees in comparison with those established by labor legislation and other regulatory legal acts containing labor law norms. If such conditions are included in the employment contract, then they are not subject to application.

Termination of an employment contract at the initiative of the employer with pregnant women is not allowed, except in cases of liquidation of the organization or termination of activity by an individual entrepreneur.

Part 1 Art. 261 of the Labor Code of the Russian Federation prohibits the dismissal of pregnant women at the initiative of the employer. The prohibition on dismissal applies to all grounds for dismissal at the initiative of the employer, specified both in the Labor Code of the Russian Federation and in other federal laws.

The dismissal of a pregnant woman on other grounds not related to the initiative of the employer, including due to circumstances beyond the control of the parties to the employment contract (Article 83 of the Labor Code of the Russian Federation) and in case of violation of the rules for hiring (Article 84 of the Labor Code of the Russian Federation), is carried out in general order.

In the event of the expiration of a fixed-term employment contract during the woman's pregnancy, the employer is obliged, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, to extend the validity of the employment contract until the end of pregnancy. A woman whose employment contract has been extended until the end of pregnancy is obliged, at the request of the employer, but not more than once every three months, to provide a medical certificate confirming the state of pregnancy. If at the same time the woman actually continues to work after the end of pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day when the employer found out or should have found out about the fact of the end of pregnancy.

An employment contract extended in this way, by virtue of a direct indication of the law, does not cease to be urgent. At the same time, a woman is provided with all the benefits to which she is entitled in connection with pregnancy, including the right to transfer to another job and to be released from work while maintaining average earnings if such a transfer is impossible.

It is allowed to dismiss a woman due to the expiration of the employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of the absent employee and it is impossible, with the written consent of the woman, to transfer her before the end of pregnancy to another job available to the employer (as a vacant position or job, corresponding to the woman's qualifications, as well as a vacant lower position or lower paid job) that a woman can perform, taking into account her state of health. At the same time, the employer is obliged to offer her all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

Termination of an employment contract with women with children under the age of three, single mothers raising a child under the age of fourteen (a disabled child under eighteen), other persons raising these children without a mother, at the initiative of the employer is not allowed (except dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of the first part of Article 81 or paragraph 2 of Article 336 of the Labor Code of the Russian Federation).";

An employment contract is subject to termination due to the following circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation):

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

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

3) non-election to office;

This basis applies to those employees who were not re-elected to the position they held, although they applied for it. If the employee did not submit documents for election to the position, then he is dismissed due to the expiration of the employment contract under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

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

5) recognition of an employee as completely incapable of work in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation;

The recognition of an employee as completely incapable may take place in accordance with a medical certificate issued by an authority or institution that has the competence to issue such an opinion.

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

In accordance with Art. 45 of the Labor Code of the Russian Federation, a citizen may be declared dead by a court if there is no information about his place of residence in his place of residence for five years, and if he has gone missing under circumstances that threaten death or give reason to assume his death from a certain accident, - in within 6 months.

7) the onset of emergency circumstances that prevent the continuation of labor relations (military operations, catastrophe, natural 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 public authority of the relevant subject of the Russian Federation;

8) disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract;

Disqualification is the deprivation of the right of an individual to hold senior positions in the executive management body of a legal entity for a period of 6 months to 3 years. In addition to disqualification, there may also be expulsion from the territory of the Russian Federation of a foreign citizen (or stateless person) who was in an employment relationship with the employer.

9) expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to drive a 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 to fulfill the obligations under the employment contract;

10) termination of access to state secrets, if the work performed requires such access;

11) cancellation of a court decision or cancellation (recognition as illegal) of a decision of the state labor inspectorate on the reinstatement of an employee at work.

An employment contract is terminated due to a violation of the rules for its conclusion established by the Labor Code of the Russian Federation or other federal law, if the violation of these rules excludes the possibility of continuing work, in the following cases:

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

conclusion of an employment contract for the performance of work that is contraindicated for this employee for health reasons in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation;

the absence of an appropriate document on education, if the performance of work requires special knowledge in accordance with a federal law or other regulatory legal act;

conclusion of an employment contract in violation of the decision of a judge, body, official authorized to consider cases of administrative offenses, on disqualification or other administrative punishment that precludes the employee from fulfilling obligations under an employment contract, or the conclusion of an employment contract in violation of the restrictions, prohibitions and requirements established by federal laws concerning the involvement in labor activity of citizens dismissed from the state or municipal service;

in other cases stipulated by federal laws.

If the 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 a severance pay in the amount of the average monthly earnings. If the violation of these rules is due to the fault of the employee, then the employer is not obliged to offer him another job, and the employee is not paid severance pay.

Chapter 17 of the Labor Code of the Russian Federation indicates the grounds on which the employment contract may be terminated.

These grounds include:

The agreement of the parties - Art. 78 of the Labor Code of the Russian Federation. The parties have the right to agree among themselves that their employment relationship is terminated. Therefore, the employment contract also loses its legal force;

Expiration of a fixed-term employment contract. A fixed-term employment contract is concluded for a fixed period of up to 5 years. If its validity has expired, and the parties do not want to renew it, then this is the basis for the termination of the employment relationship and the employment contract.
If the term has expired, but the employee continues to work, and the employer does not insist on terminating the relationship, then the urgency condition of such an agreement loses its legal force. This is stated in Art. 78 of the Labor Code of the Russian Federation;

The employee has the right to take the initiative to terminate the employment relationship. In this case, he must notify the employer 2 weeks in advance, and on probationary period in 3 days.
But there are exceptions to the rule when an employee can quit on the same day. This is stated in Art. 80 of the Labor Code of the Russian Federation.

The employer also has the right to terminate the employment contract on his own initiative. The grounds for this are given in Art. 81 of the Labor Code of the Russian Federation. Upon such termination of the contract, the trade union body must carry out checks on the eligibility of termination, provided that there is a trade union in this enterprise;

If two employers have entered into an agreement on the transfer of an employee, then the employment contract at the “old” place of work is terminated, and a new one is concluded at the “new” one.
Transfer to another employer is possible only with the written consent of the employee himself. The initiator of such a transfer can be both the employee himself and the employer.
If the owner of the enterprise has changed, then the employee has the right to refuse to continue labor relations with him.
This is the basis for terminating the employment contract.

The reorganization of the enterprise, as well as the change of jurisdiction, may cause the employee to refuse to continue the employment relationship;

The employer has the right to change the employment contract unilaterally if the organizational or technological conditions labor. An employee's refusal to work in new conditions may also be a reason for termination of employment relations and termination of an employment contract;

Employees in some positions are required to undergo a medical examination. The conclusion after such an inspection is an admission to the continuation of labor activity.
If for some reason the employee has not passed a medical examination, the employer is obliged to offer him another position that corresponds to the qualifications of the employee. The refusal of the employee to transfer is the basis for the termination of the employment contract;

Refusal of the employee to move with the employer;

Circumstances that do not depend on the will of the parties. For example, taking an employee or employer into custody or convicting him to imprisonment.

Unauthorized salary accrued by an accountant is not subject to insurance premiums

If Chief Accountant regularly transferred to himself a salary in a larger amount than specified in the employment contract, the amounts of such an excess are not included in the contribution base.

Electronic Claims for Taxes and Contributions: New Referral Rules

Recently, the tax authorities have updated the forms of claims for payment of debts to the budget, incl. on insurance premiums. Now the time has come to correct the procedure for sending such requirements to the TMS.

Pay slips do not need to be printed.

Employers do not have to give employees pay slips on paper. The Ministry of Labor does not prohibit sending them to employees by e-mail.

"Physicist" transferred payment for the goods by bank transfer - you need to issue a check

In the case when an individual transferred to the seller (company or individual entrepreneur) payment for the goods according to non-cash payment through a bank, the seller is obliged to send a cashier's check to the buyer-"physicist", the Ministry of Finance believes.

The list and quantity of goods at the time of payment is unknown: how to issue a cash receipt

Name, quantity and price of goods (works, services) - required details cash receipt(BSO). However, when receiving an advance payment (advance), it is sometimes impossible to determine the volume and list of goods. The Ministry of Finance told what to do in such a situation.

Medical examination for working at a computer: mandatory or not

Even if an employee is busy working with a PC for at least 50% of the working time, this in itself is not a reason to regularly send him for medical examinations. Everything is decided by the results of certification of his workplace according to working conditions.

Changed operator electronic document management- inform the IFTS

If the organization has refused the services of one electronic document management operator and switched to another, it is necessary to send the TCS to tax office electronic notification of the recipient of documents.

Grounds for terminating an employment contract

The labor law clearly regulates the grounds and procedure for dismissal of an employee, establishing by what rules and in what cases the employment contract is terminated. In this article, we will talk about the most common reasons for layoffs.

Grounds for termination of an employment contract

The grounds for dismissal are listed in article 77 of the Labor Code of the Russian Federation. They can be grouped into the following grounds for terminating an employment contract:

• by the will of the employee;
• at the request of the employer;
• by agreement of the parties;
• for reasons beyond the control of the parties;
• in connection with the expiration of the employment contract;
• for other reasons.

Dismissal at the initiative of an employee

The employee has the right to terminate any employment contract, both fixed-term and indefinite, on his own initiative. At the same time, employees must comply with the mandatory conditions for terminating the employment contract. Usually this is the so-called "working off", that is, the employee must warn about the planned dismissal in advance. As a general rule, two weeks in advance, but in some cases the warning period may be longer (when managers are dismissed) or less (for example, when they are dismissed during the probationary period for employment).

Read also: Order for dismissal of one's own free will sample 2020 form

Dismissal at the initiative of the employer

The grounds for dismissal in these cases are established by Article 81 of the Labor Code of the Russian Federation. which provides for the following reasons for terminating the employment contract:

• liquidation of a company or closure of an individual entrepreneur;
• staff reduction (number);
• inconsistency of the employee with his position;
• change of the owner of the company;
• repeated disciplinary offenses;
• a single gross violation of duties (including absenteeism; appearing at work in a state of intoxication; disclosure of secret information; theft, embezzlement, damage to other people's property committed at the place of work);
• loss of trust;
• conflict of interest;
• immoral offense (for employees performing educational functions);
• forgery by an employee when hiring;
• cases stipulated by the contract with the management of the company.

For these cases of dismissal (except for the liquidation of the company and the closure of the IP), a general rule has been established according to which it is impossible to dismiss an employee during his vacation or disability. In addition, in relation to certain grounds for dismissal, additional conditions for terminating an employment contract are provided. In particular, dismissal for embezzlement is possible only if these facts are established by a verdict or order of a court or other law enforcement agencies.

Dismissal by agreement of the parties

Such an agreement can be reached at any time. The only thing mandatory requirement to him - drawing up an agreement in writing. All conditions of dismissal on this basis (terms, amounts of payments) are determined by the parties at their discretion.

Dismissal for reasons beyond the control of the parties

The law, in particular, refers to the reasons for such dismissal: conscription of an employee into the army; reinstatement of a previously illegally dismissed person at work; non-election to elective office; bringing an employee to criminal liability; inability to perform work for medical reasons; death of an employee or employer (individual).

Dismissal due to the end of the employment contract

If the term of the employment contract has expired, then it is terminated. The employer must notify the employee of the expiration of the term three days before the dismissal. However, failure to fulfill this condition according to the existing judicial practice is not considered as a basis for recognizing the dismissal as illegal. However, if none of the parties announced the termination of the fixed-term contract and the employee continued to perform work, then the employment contract remains valid, the condition on the term becomes invalid, and the contract becomes indefinite.

Also read:

When and in what cases is the employment contract terminated?

The dismissal of an employee is often associated with conflicts and violations. Therefore, both the employee and the employer need to know and navigate the rules for terminating an employment contract. When, on what grounds, in what cases is the employment contract terminated? We will tell in this article.

General grounds for terminating an employment contract

We list and describe the most common grounds for terminating an employment contract.

Dismissal at the initiative of the worker.

Dismissal often occurs at the initiative of the worker himself. Outwardly, this is formalized by the employee submitting a letter of resignation. At the same time, the employee must comply with the rule of law on warning the employer of his intention to quit. As a general rule, at least 2 weeks must pass from the moment of filing the application until the moment of dismissal, the so-called "working off". This time is given to the employer in order to find a replacement for the retired staff and to carry out all other necessary measures in connection with the dismissal (transfer of cases, inventory, etc.).

What should be taken into account here? The notice period for dismissal for certain categories of employees may be shorter. So, seasonal workers can warn of their dismissal in just three days. The same period is set for employees on probation. During the test, they can write a statement three before the dismissal.

And of course, the warning period may be reduced or not taken into account at all if the parties have agreed on this matter. For example, the employer agrees to the dismissal of an employee without a mandatory "working off".

Recall that in some cases, dismissal at the request of the employee is possible without working off at all. It depends on the reasons for the dismissal. If the reasons for termination of the employment contract are related to retirement, caring for a sick family member, and in other cases, then the employer is obliged to dismiss the employee when he asks for it.

Dismissal "in a good way" and "in a bad way"

If the dismissal occurs "in a good way", then the implementation of the above rules is sufficient to terminate the contract. However, dismissal "in an amicable way" is far from always and may be accompanied by conflicts.

Sometimes employers force employees to write statements of their own free will. Such actions are clearly illegal. And even if the employee writes a statement under pressure from the employer, he can subsequently apply for the protection of his rights to law enforcement and control authorities (court, prosecutor's office, Labour Inspectorate) and achieve reinstatement. There are enough such examples in judicial practice, when in the trial the facts of forced dismissal of one's own free will were confirmed.

There may be another situation when the employer does not want to part with the employee and creates all sorts of obstacles for him on the way to dismissal. In such cases, employees need to stock up on evidence of legally significant actions. In this case, it is a resignation letter. These facts can be recorded by a receipt of the authorized person of the employer on the employee's statement, written in 2 copies; or confirmed by telegram, registered letter with a list of attachments and other methods.

Dismissal at the will of the employer

Depending on the grounds for terminating the employment contract, such dismissal can be very different. It is one thing when an employee is fired due to redundancy with the payment of a 2-month severance pay; and it’s a completely different matter if he is fired “under the article”, when such impartial information gets into the work book. Often, employers, threatening an objectionable employee with such a dismissal, get him to write a letter of resignation of his own free will.

You can read about "dismissal under the article" in other materials on our site. Here we note that in addition to the “bad” reasons for terminating an employment contract, dismissal at the request of the employer may not be so negative. Such grounds for termination of an employment contract are dismissals due to:

• with the liquidation of an enterprise or company or the closure of an individual entrepreneur;
• reduction of staffing at the employer;
• conflict of interest and unwillingness or inability of the employee to resolve it;
• change in the ownership of the property of an enterprise or company (concerns the management team).

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There is one general rule that employers must follow regardless of the reason for terminating an employment contract (good or bad). At the initiative of the employer, the law prohibits the dismissal of employees during periods of their vacation or disability. This rule does not apply only to cases of closing an IP or liquidating a company.

Dismissals for other reasons

Other common grounds for termination of an employment contract include layoffs:

• by agreement of the parties;
• due to the expiration of the contract;
• due to unforeseen circumstances.

The agreement of the parties must be reached in writing, drawn up in at least two copies (for the employee and for the employer). It often includes conditions on the employee's payments in connection with the dismissal.

If the employment contract expires. and the parties have no intention to continue it, then the relationship also ends. At the same time, the employer has an obligation to notify the employee of the upcoming dismissal for this reason no later than three days before the dismissal.

Upon dismissal due to circumstances that are beyond the control of the parties, the employment contract is terminated due to conscription, death, criminal prosecution, non-selection to the appropriate position, medical contraindications, etc.

Termination of an employment contract

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

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

In the event of termination of the activities of a branch, representative office or other separate structural subdivision of an organization located in another locality, termination of employment contracts with employees of this subdivision is carried out according to the rules provided for in 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 the guilty actions that give grounds for the 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 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 (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during the period of vacation.

Information about changes:

Federal Law No. 90-FZ of June 30, 2006 amended Article 82 of this Code. The amendments shall enter into force 90 days after the date of official publication of the said Federal Law

Article 82

See Encyclopedias and other comments on article 82 of the Labor Code of the Russian Federation

On the constitutional and legal meaning of the provisions of the first part of Art. 82 of this Code, see Determination of the Constitutional Court of the Russian Federation of January 15, 2008 N 201-O-P

When deciding to reduce the number or staff of employees of an organization, an 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 no later than two months in advance. before the start of the relevant events, and if the decision to reduce the number or staff of employees may lead to mass layoffs of employees - no later than three months before the start of the relevant events. Criteria for mass layoffs are determined in industry and (or) territorial agreements.

The dismissal of employees who are members of a trade union on the grounds provided for in paragraphs 2. 3 or 5 of the first part 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 dismissal of employees in accordance with paragraph 3 of part one of Article 81 of this Code, a representative of the elected body of the relevant primary trade union organization must be included in the certification commission.

The 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 the employment contract at the initiative of the employer.

Information about changes:

Federal Law No. 387-FZ of December 23, 2010 amended Article 83 of this Code

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

See Encyclopedias and other comments on article 83 of the Labor Code of the Russian Federation

An 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 at work of an employee who previously performed this work, by decision of the state labor inspectorate or court;

The dismissal of an employee means the termination of the employment contract. This means that the employment relationship ends between the parties who signed the contract. The Labor Code stipulates several grounds for terminating the contract. Let us consider in more detail in which cases the employment contract is terminated.

Foundations

The Labor Code regulates several aspects under which an employment contract can be cancelled.

Among others, there are general grounds for terminating an employment contract:

1. Agreement of the parties.
2. End of the contract period.
3. Employee transfer.
4. Refusal of an employee to perform duties under the new owner.
5. Employee initiative.
6. Leader's initiative.
7. Refusal of an employee to work under new conditions.
8. Translation disagreement.
9. Case independent of the will of the parties.
10. Violation of the terms of the contract.

The employment agreement can also be terminated on other grounds, if they are provided for by law.

Employee initiative

Termination of the employment contract in connection with the desire of the employee may be due to the following points:

• Refusal to perform duties at will (in this case, the employee leaves the workplace in accordance with Article 80 of the Labor Code of the Russian Federation, submitting an application for termination of performance of labor duties two weeks in advance).
• Refusal to fulfill labor obligations due to medical indications (the employee must submit a medical certificate, here he is either transferred to another position, or he quits altogether).

Manager's initiative

When and in what cases is the employment contract terminated at the initiative of the employer? The legislation regulates the following cases:

• Negative result of passing the probationary period: when applying for a job, the conditions for passing the test must be agreed with the employee, as well as the grounds under which the contract can be terminated at this stage.
• Change in essential conditions: these include a change in the place of work, a change in position, a change in the conditions of insurance, a change in the conditions of remuneration, etc.
• End of the agreement period: the manager is obliged to notify the employee of the dismissal three days before the end of the agreement.

Agreement of the parties

In some cases, the dismissal of an employee entails the termination of the employment contract by agreement of the parties, as this is considered the best way out of a possible situation. The initiator of such an action can be both an employee and a manager. The contract is terminated by mutual agreement, which is regulated by Art. 78 of the Labor Code of the Russian Federation.

Dismissal by agreement of the parties must be formalized when drawing up a certain list of conditions. In addition, such a measure should be aimed at repaying the existing conflict between the parties.

For example, not every employee wants to quit if the grounds for terminating the employment contract by the employer are far-fetched or in this way you just need to replace the candidate for the position. The agreement of the parties helps to come to a common compromise.

Circumstances beyond the control of the parties

Sometimes there are circumstances that do not depend on the will of the parties. In what cases the employment contract is terminated:

1. The worker goes to military service.
2. A court order requiring an employee who has completed military service to be admitted to previous place work.
3. A negative result of being elected to an elective office.
4. The decision of the court, according to which the employee must serve the sentence.
5. Presentation of a medical certificate, which indicates the disability of the employee.
6. The death of an employee and a document confirming that the citizen is missing.
7. Unforeseen situations or incidents.

Important Points

1. Women in position. According to legislative norms, women who are expecting a child cannot be fired, which is justified by Art. 261 of the Labor Code of the Russian Federation. But there are cases when the provision does not affect the termination of the contract. These include fixed-term contracts and the entry to work of a temporarily absent employee, the liquidation of the organization or the termination of the activities of the individual entrepreneur.
2. Persons under the age of majority. Termination of the contract in this case is possible only with the consent of the specialized bodies for minors. The regulation of such actions is described in Art. 269 ​​of the Labor Code of the Russian Federation and does not apply when the company is terminated.
3. Persons with family obligations. In this case, there are no reservations. The law prohibits the dismissal of women who are raising children under 3 years old, as well as single mothers with children under 14 years old. In addition, it is impossible to deprive the work of persons raising disabled children without mothers.
4. Persons who are members of a trade union. The dismissal of trade union members is provided for by Art. 373 of the Labor Code of the Russian Federation and is carried out within the framework of the trade union body.
5. Foreigners. An employment contract with foreigners can be terminated only upon termination of the period of validity of the residence permit, insurance, as well as for other reasons specified in Art. 326 of the Labor Code of the Russian Federation.

Decor

Previously, it was considered that an employment contract can be terminated in the event of the initiative of one of the parties or a general agreement, as well as due to situations that do not depend on the circumstances.

Now we will indicate how the termination of the contract is documented. Firstly, if the employee quits at will, he must write a statement two weeks before the scheduled day. The document is written in the name of the head and it should indicate the reason why the contract is terminated.

Secondly, if the dismissal occurs at the initiative of the head, then a notification should follow from him, which informs about the upcoming termination of the contract. A similar document is sent in three days.

Further, regardless of which side the dismissal was announced and what are the grounds for terminating the employment contract, a dismissal order must be drawn up. This document is an official confirmation that the citizen no longer works in the organization. The order must include:

• date of the last working day;
• reasons for dismissal that do not contradict legislative norms with reference to the Labor Code;
• circumstances that served to dismiss the employee (for example, the commission of illegal actions).

If the dismissal occurs by agreement, then you need to draw up a similar document that takes into account all the nuances of terminating the contract.

The employee must be familiarized with the order against signature.

Terms and payments

In what cases the employment contract is terminated, we found out, now we will consider the terms in which employees or managers must warn each other about the upcoming dismissal. Everything will depend on the period for which the contract is concluded:

• indefinite contract: the employee must write a statement two weeks before the end of work;
• fixed-term contract for two months, seasonal work: the manager must notify the employee three days in advance;
• probationary period: notification of the employee must occur no later than three days;
• agreement with the manager: notification of the person holding the managerial position must take place no later than 30 days;
• contract with a coach (sportsman): a notice is sent one month in advance if the contract is not drawn up for four months.

Payments and compensations to those employees with whom the employment contract has been canceled are regulated by Ch. 27 of the Labor Code of the Russian Federation. The amount of payments depends on the reason for dismissal:

1. Liquidation of the organization, reduction of staff: funds in the amount of monthly earnings for two months are due for payment.
2. Refusal of an employee to transfer to another position, conscription into the army, reinstatement of a temporarily absent employee, refusal of an employee to move to another locality, recognition of an employee as incompetent, refusal of an employee to accept new terms of the contract: two weeks of average earnings are due for payment.

The labor law clearly regulates the grounds and procedure for dismissal of an employee, establishing by what rules and in what cases the employment contract is terminated. In this article, we will talk about the most common reasons for layoffs.

The grounds for dismissal are listed in article 77 of the Labor Code of the Russian Federation. They can be grouped into the following grounds for terminating an employment contract:

• by the will of the employee;
• at the request of the employer;
• by agreement of the parties;
• for reasons beyond the control of the parties;
• in connection with the expiration of the employment contract;
• for other reasons.

Dismissal at the initiative of an employee

The employee has the right to terminate any employment contract, both fixed-term and indefinite, on his own initiative. At the same time, employees must comply with the mandatory conditions for terminating the employment contract. Usually this is the so-called "working off", that is, the employee must warn about the planned dismissal in advance. As a general rule, two weeks in advance, but in some cases the warning period may be longer (when managers are dismissed) or less (for example, when they are dismissed during the probationary period for employment).

Dismissal at the initiative of the employer

The grounds for dismissal in these cases are established by Article 81 of the Labor Code of the Russian Federation, which provides for the following reasons for terminating an employment contract:

• liquidation of a company or closure of an individual entrepreneur;
• staff reduction (number);
• inconsistency of the employee with his position;
• change of the owner of the company;
• repeated disciplinary offenses;
• a single gross violation of duties (including absenteeism; appearing at work in a state of intoxication; disclosure of secret information; theft, embezzlement, damage to other people's property committed at the place of work);
• loss of trust;
• conflict of interest;
• immoral offense (for employees performing educational functions);
• forgery by an employee when hiring;
• cases stipulated by the contract with the management of the company.

For these cases of dismissal (except for the liquidation of the company and the closure of the IP), a general rule has been established according to which it is impossible to dismiss an employee during his vacation or disability. In addition, in relation to certain grounds for dismissal, additional conditions for terminating an employment contract are provided. In particular, dismissal for embezzlement is possible only if these facts are established by a verdict or order of a court or other law enforcement agencies.

Dismissal by agreement of the parties

Such an agreement can be reached at any time. The only mandatory requirement for it is that the agreement be in writing. All conditions of dismissal on this basis (terms, amounts of payments) are determined by the parties at their discretion.

Dismissal for reasons beyond the control of the parties

The law, in particular, refers to the reasons for such dismissal: conscription of an employee into the army; reinstatement of a previously illegally dismissed person at work; non-election to elective office; bringing an employee to criminal liability; inability to perform work for medical reasons; death of an employee or employer (individual).

Dismissal due to the end of the employment contract

If the term of the employment contract has expired, then it is terminated. The employer must notify the employee of the expiration of the term three days before the dismissal. However, failure to comply with this condition, according to existing judicial practice, is not considered as a basis for recognizing the dismissal as illegal. However, if none of the parties announced the termination of the fixed-term contract and the employee continued to perform work, then the employment contract remains valid, the condition on the term becomes invalid, and the contract becomes indefinite.

When does an employment contract terminate?

Answer or solution 2

In order to legitimize the relationship between the employer and the hired employee, an employment contract is concluded between them. And it can stop in different cases, which are provided for in it. For example, if one of the parties does not fulfill the terms of the contract, then it can be terminated unilaterally. This may be the case if the employee does not receive wages or he is forced to do something that is not provided for by the contract. Or vice versa, the employee violates discipline, work schedule and they can break the contract with him because of this.

To begin with, it is worth understanding that an employment contract or contract is a written agreement between an employee and an employer, which specifies the rights and obligations of the parties, the conditions for remuneration, social insurance, etc.

General provisions for termination of an employment contract

1. The employer and worker agree to terminate the contract;
2. The contract has expired;
3. The employee moves to work for another employer or to another position.

Termination of the contract for personal reasons

Situations when the termination initiative comes from one of the individuals:

1. At the initiative of the employee (impossibility to continue work; change of the owner of the organization or reorganization; change of location of the employer, etc.). In this case, it is necessary to declare in writing your desire to leave the position to the employer two weeks before termination.
2. At the initiative of the employer (termination of the activities of the employer - an individual; reduction of personnel; inconsistency of the employee with his position; failure by the employee to fulfill his duties without good reason; gross violation of labor duties; loss of confidence in the employee).

Termination of a fixed-term employment contract

Conditions for terminating a contract concluded for a short period:

1. If the employment contract was concluded for a certain period of work, then, with the end of this period, the contract loses its force.
2. If the employment contract was concluded for the period of absence of the staff in the position, then it ceases to be valid with the return of the employee to his place.
3. If the employment contract was concluded for a season (summer, spring, winter, autumn), then it ceases to be valid after the end of this season.

Termination of the contract due to other circumstances

In connection with situations that do not depend on the will of the parties:

1. Conscription of a worker for military or civil service;
2. Restoration of the staff who previously held this position;
3. Rejection to the workplace;
4. A court verdict prohibiting the employee from performing this labor activity;
5. Medical report proving the inability of the employee to work;
6. The death of one of the individuals - the employee or employer;
7. The onset of situations recognized by the Government of the Russian Federation as extraordinary (war, natural disasters, epidemics, etc.);
8. Administrative punishment prohibiting the performance of one's duties;
9. Expiration or deprivation of a worker of a special right (carrying weapons, licenses, etc.) necessary for this work.

In what cases is the employment contract terminated: grounds and requirements

The dismissal of an employee means the termination of the employment contract. This means that the employment relationship ends between the parties who signed the contract. The Labor Code stipulates several grounds for terminating the contract. Let us consider in more detail in which cases the employment contract is terminated.

The Labor Code regulates several aspects under which an employment contract can be cancelled.

Among others, there are general grounds for terminating an employment contract:

1. Agreement of the parties.
2. End of the contract period.
3. Employee transfer.
4. Refusal of an employee to perform duties under the new owner.
5. Employee initiative.
6. Leader's initiative.
7. Refusal of an employee to work under new conditions.
8. Translation disagreement.
9. Case independent of the will of the parties.
10. Violation of the terms of the contract.

The employment agreement can also be terminated on other grounds, if they are provided for by law.

Employee initiative

Termination of the employment contract in connection with the desire of the employee may be due to the following points:

• Refusal to perform duties at will (in this case, the employee leaves the workplace in accordance with Article 80 of the Labor Code of the Russian Federation, submitting an application for termination of performance of labor duties two weeks in advance).
• Refusal to fulfill labor obligations due to medical indications (the employee must submit a medical certificate, here he is either transferred to another position, or he quits altogether).

Manager's initiative

When and in what cases is the employment contract terminated at the initiative of the employer? The legislation regulates the following cases:

• Negative result of passing the probationary period: when applying for a job, the conditions for passing the test must be agreed with the employee, as well as the grounds under which the contract can be terminated at this stage.
• Change in essential conditions: these include a change in the place of work, a change in position, a change in the conditions of insurance, a change in the conditions of remuneration, etc.
• End of the agreement period: the manager is obliged to notify the employee of the dismissal three days before the end of the agreement.

Agreement of the parties

In some cases, the dismissal of an employee entails the termination of the employment contract by agreement of the parties, as this is considered the best way out of a possible situation. The initiator of such an action can be both an employee and a manager. The contract is terminated by mutual agreement, which is regulated by Art. 78 of the Labor Code of the Russian Federation.

Dismissal by agreement of the parties must be formalized when drawing up a certain list of conditions. In addition, such a measure should be aimed at repaying the existing conflict between the parties.

For example, not every employee wants to quit if the grounds for terminating the employment contract by the employer are far-fetched or in this way you just need to replace the candidate for the position. The agreement of the parties helps to come to a common compromise.

Circumstances beyond the control of the parties

Sometimes there are circumstances that do not depend on the will of the parties. In what cases the employment contract is terminated:

1. The worker goes to military service.
2. A court order by which an employee who has served in the military must be accepted to a previous place of work.
3. A negative result of being elected to an elective office.
4. The decision of the court, according to which the employee must serve the sentence.
5. Presentation of a medical certificate, which indicates the disability of the employee.
6. The death of an employee and a document confirming that the citizen is missing.
7. Unforeseen situations or incidents.

Important Points

1. Women in position. According to legislative norms, women who are expecting a child cannot be fired, which is justified by Art. 261 of the Labor Code of the Russian Federation. But there are cases when the provision does not affect the termination of the contract. These include fixed-term contracts and the entry to work of a temporarily absent employee, the liquidation of the organization or the termination of the activities of the individual entrepreneur.
2. Persons under the age of majority. Termination of the contract in this case is possible only with the consent of the specialized bodies for minors. The regulation of such actions is described in Art. 269 ​​of the Labor Code of the Russian Federation and does not apply when the company is terminated.
3. Persons with family obligations. In this case, there are no reservations. The law prohibits the dismissal of women who are raising children under 3 years old, as well as single mothers with children under 14 years old. In addition, it is impossible to deprive the work of persons raising disabled children without mothers.
4. Persons who are members of a trade union. The dismissal of trade union members is provided for by Art. 373 of the Labor Code of the Russian Federation and is carried out within the framework of the trade union body.
5. Foreigners. An employment contract with foreigners can be terminated only upon termination of the period of validity of the residence permit, insurance, as well as for other reasons specified in Art. 326 of the Labor Code of the Russian Federation.

Decor

Previously, it was considered that an employment contract can be terminated in the event of the initiative of one of the parties or a general agreement, as well as due to situations that do not depend on the circumstances.

Now we will indicate how the termination of the contract is documented. Firstly, if the employee quits at will, he must write a statement two weeks before the scheduled day. The document is written in the name of the head and it should indicate the reason why the contract is terminated.

Secondly, if the dismissal occurs at the initiative of the head, then a notification should follow from him, which informs about the upcoming termination of the contract. A similar document is sent in three days.

Further, regardless of which side the dismissal was announced and what are the grounds for terminating the employment contract, a dismissal order must be drawn up. This document is an official confirmation that the citizen no longer works in the organization. The order must include:

• date of the last working day;
• reasons for dismissal that do not contradict legislative norms with reference to the Labor Code;
• circumstances that served to dismiss the employee (for example, the commission of illegal actions).

If the dismissal occurs by agreement, then you need to draw up a similar document that takes into account all the nuances of terminating the contract.

The employee must be familiarized with the order against signature.

Terms and payments

In what cases the employment contract is terminated, we found out, now we will consider the terms in which employees or managers must warn each other about the upcoming dismissal. Everything will depend on the period for which the contract is concluded:

• indefinite contract: the employee must write a statement two weeks before the end of work;
• fixed-term contract for two months, seasonal work: the manager must notify the employee three days in advance;
• probationary period: notification of the employee must occur no later than three days;
• agreement with the manager: notification of the person holding the managerial position must take place no later than 30 days;
• contract with a coach (sportsman): a notice is sent one month in advance if the contract is not drawn up for four months.

Payments and compensations to those employees with whom the employment contract has been canceled are regulated by Ch. 27 of the Labor Code of the Russian Federation. The amount of payments depends on the reason for dismissal:

1. Liquidation of the organization, reduction of staff: funds in the amount of monthly earnings for two months are due for payment.
2. Refusal of an employee to transfer to another position, conscription into the army, reinstatement of a temporarily absent employee, refusal of an employee to move to another locality, recognition of an employee as incompetent, refusal of an employee to accept new terms of the contract: two weeks of average earnings are due for payment.

When and in what cases is the employment contract terminated?

The dismissal of an employee is often associated with conflicts and violations. Therefore, both the employee and the employer need to know and navigate the rules for terminating an employment contract. When, on what grounds, in what cases is the employment contract terminated? We will tell in this article.

General grounds for terminating an employment contract

We list and describe the most common grounds for terminating an employment contract.

Dismissal at the initiative of the worker.

Dismissal often occurs at the initiative of the worker himself. Outwardly, this is formalized by the employee submitting a letter of resignation. At the same time, the employee must comply with the rule of law on warning the employer of his intention to quit. As a general rule, at least 2 weeks must pass from the moment of filing the application until the moment of dismissal, the so-called "working off". This time is given to the employer in order to find a replacement for the retired staff and to carry out all other necessary measures in connection with the dismissal (transfer of cases, inventory, etc.).

What should be taken into account here? The notice period for dismissal for certain categories of employees may be shorter. So, seasonal workers can warn of their dismissal in just three days. The same period is set for employees on probation. During the test, they can write a statement three before the dismissal.

And of course, the warning period may be reduced or not taken into account at all if the parties have agreed on this matter. For example, the employer agrees to the dismissal of an employee without a mandatory "working off".

Recall that in some cases, dismissal at the request of the employee is possible without working off at all. It depends on the reasons for the dismissal. If the reasons for termination of the employment contract are related to retirement, caring for a sick family member, and in other cases, then the employer is obliged to dismiss the employee when he asks for it.

Dismissal "in a good way" and "in a bad way"

If the dismissal occurs "in a good way", then the implementation of the above rules is sufficient to terminate the contract. However, dismissal "in an amicable way" is far from always and may be accompanied by conflicts.

Sometimes employers force employees to write statements of their own free will. Such actions are clearly illegal. And even if the employee writes a statement under pressure from the employer, he can subsequently apply for the protection of his rights to law enforcement and control authorities (court, prosecutor's office, labor inspectorate) and achieve reinstatement at work. There are enough such examples in judicial practice, when in the trial the facts of forced dismissal of one's own free will were confirmed.

There may be another situation when the employer does not want to part with the employee and creates all sorts of obstacles for him on the way to dismissal. In such cases, employees need to stock up on evidence of legally significant actions. In this case, it is a resignation letter. These facts can be recorded by a receipt of the authorized person of the employer on the employee's statement, written in 2 copies; or confirmed by telegram, registered letter with a list of attachments and other methods.

Dismissal at the will of the employer

Depending on the grounds for terminating the employment contract, such dismissal can be very different. It is one thing when an employee is fired due to redundancy with the payment of a 2-month severance pay; and it’s a completely different matter if he is fired “under the article”, when such impartial information gets into the work book. Often, employers, threatening an objectionable employee with such a dismissal, get him to write a letter of resignation of his own free will.

You can read about "dismissal under the article" in other materials on our site. Here we note that in addition to the “bad” reasons for terminating an employment contract, dismissal at the request of the employer may not be so negative. Such grounds for termination of an employment contract are dismissals due to:

• with the liquidation of an enterprise or company or the closure of an individual entrepreneur;
• reduction of staffing at the employer;
• conflict of interest and unwillingness or inability of the employee to resolve it;
• change in the ownership of the property of an enterprise or company (concerns the management team).

There is one general rule that employers must follow regardless of the reason for terminating an employment contract (good or bad). At the initiative of the employer, the law prohibits the dismissal of employees during periods of their vacation or disability. This rule does not apply only to cases of closing an IP or liquidating a company.

Dismissals for other reasons

Other common grounds for termination of an employment contract include layoffs:

• by agreement of the parties;
• due to the expiration of the contract;
• due to unforeseen circumstances.

The agreement of the parties must be reached in writing, drawn up in at least two copies (for the employee and for the employer). It often includes conditions on the employee's payments in connection with the dismissal.

If the term of the employment contract expires, and the parties have no intention to continue it, then the relationship is also terminated. At the same time, the employer has an obligation to notify the employee of the upcoming dismissal for this reason no later than three days before the dismissal.

Upon dismissal due to circumstances that are beyond the control of the parties, the employment contract is terminated due to conscription, death, criminal prosecution, non-selection to the appropriate position, medical contraindications, etc.

When does an employment contract terminate?

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The section presents the Labor Code of the Russian Federation (Labor Code of the Russian Federation): articles, amendments to the Labor Code of the Russian Federation.

Chapter 13. Termination of an employment contract

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 term of the employment contract (Article 79 of this Code), except for cases when the employment relationship actually continues and none of the parties has demanded their termination;

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

4) termination of the 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 elective work (position);

6) refusal of the employee to continue work in connection with a change in the owner of the property of the organization, with a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of this Code);

7) refusal of the employee to continue work in connection with 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 certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer (parts three and four of Article 73 of this Code);

9) the employee's refusal to be transferred to work in another locality 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 also be terminated on other grounds provided for by this Code and other federal laws.

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

The employment contract may 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 about the termination of the employment contract due to its expiration at least three calendar days before the dismissal, except for cases when the term of the fixed-term employment contract concluded for the period of performance of the duties of the absent employee expires.

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

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

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

Article 80

The employee has the right to terminate the employment contract by notifying the employer in writing no later than two weeks in advance, unless another period is established by this Code or other federal law. The specified period begins the next day after the employer receives the employee's application for dismissal.

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

In cases where the employee’s application for dismissal on his own initiative (of his own free will) is due to the impossibility of continuing his work (enrollment in an educational institution, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts, containing norms of labor law, local regulations, terms of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee's application.

Prior to the expiration of the notice of 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 refused to conclude an employment contract.

Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer is obliged to give the employee a work book, other documents related to work, at the written request of the employee, and make the final settlement with him.

If the employment contract has not been terminated after the expiration of the term of notice of dismissal 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

The employment contract may be terminated by the employer in the following cases:

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

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

3) non-compliance of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification;

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

5) repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;

6) a single gross violation of labor duties by an employee:

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

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

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

d) committing at the place of work theft (including small) property of others, embezzlement, its deliberate 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 protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;

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

8) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

9) making an unreasonable 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) submission by the employee to the employer of false documents when concluding an employment contract;

12) has become invalid;

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

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

In the event of termination of the activities of a branch, representative office or other separate structural subdivision of an organization located in another locality, termination of employment contracts with employees of this subdivision is carried out according to the rules provided for in 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 the guilty actions that give grounds for the 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 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 (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during the period of vacation.

Article 82

When deciding to reduce the number or staff of employees of an organization, an 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 no later than two months in advance. before the start of the relevant events, and if the decision to reduce the number or staff of employees may lead to mass layoffs of employees - no later than three months before the start of the relevant events. Criteria for mass layoffs are determined in industry and (or) territorial agreements.

The dismissal of employees who are members of a trade union on the grounds provided for in paragraphs 2, 3 or 5 of the first part 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 dismissal of employees in accordance with paragraph 3 of part one of Article 81 of this Code, a representative of the elected body of the relevant primary trade union organization must be included in the certification commission.

The 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 the employment contract at the initiative of the employer.

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

An 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 at work of an employee who previously performed this work, by decision of the state labor inspectorate or court;

3) non-election to office;

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

5) recognition of an employee as completely incapable of work in accordance with a medical certificate issued in accordance with the procedure 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 dead or missing;

7) the onset of emergency circumstances that prevent the continuation of labor relations (military operations, catastrophe, natural 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 public authority of the corresponding subject of the Russian Federation;

8) disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract;

9) expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to drive a 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 to fulfill the obligations under the employment contract;

10) termination of access to state secrets, if the work performed requires such access;

11) cancellation of a court decision or cancellation (recognition as illegal) of a decision of the state labor inspectorate on the reinstatement of an employee at work;

12) bringing the total number of employees who are foreign citizens or stateless persons into line with the allowable share of such employees established by the Government of the Russian Federation for employers engaged in certain types of economic activity on the territory of the Russian Federation.

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

An employment contract on the grounds provided for in clause 12 of part one of this article shall terminate no later than the expiration of the period established by the Government of the Russian Federation for bringing by employers engaged in certain types of economic activity in the territory of the Russian Federation the total number of employees who are foreign citizens or stateless persons into compliance with the allowable proportion of such workers.

Article 84

An employment contract is terminated as a result of 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 a violation of these rules excludes the possibility of continuing work, in the following cases:

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

conclusion of an employment contract for the performance of work that is contraindicated for this employee for health reasons in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation;

the absence of an appropriate document on education, if the performance of work requires special knowledge in accordance with a federal law or other regulatory legal act;

conclusion of an employment contract in violation of the decision of a judge, body, official authorized to consider cases of administrative offenses, on disqualification or other administrative punishment that precludes the employee from fulfilling obligations under an employment contract, or the conclusion of an employment contract in violation of the restrictions, prohibitions and requirements established by federal laws concerning the involvement in labor activity of citizens dismissed from the state or municipal service;

in other cases stipulated by federal laws.

In the cases provided for by 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 job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job) that the employee can perform according to his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

If the 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 a severance pay in the amount of the average monthly earnings. If the violation of these rules is due to the fault of the employee, then the employer is not obliged to offer him another job, and the employee is not paid severance pay.

Article 84.1. General order termination of an employment contract

The termination of the employment contract is formalized by the 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 issue him a duly certified copy said order(orders). In the event that the order (instruction) to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to get acquainted with it against signature, an appropriate 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, except for cases when the employee did not actually work, but in accordance with this Code or other federal law, the place of work (position) was retained for him.

On the day of termination of the employment contract, the employer is obliged to issue a work book to the employee and make settlements with him in accordance with Article 140 of this Code. At the written request of 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 on the basis and reason for the termination of the employment contract must be made in strict accordance with the wording of this Code or another federal law and with reference to the relevant article, part of the article, paragraph of the article of this Code or other federal law.

In the event that it is impossible to issue a work book to an employee on the day of termination of the employment contract due to his absence or refusal to receive it, the employer is obliged to send a notification to the employee about the need to appear for the work book or agree to send it by mail. From the date of sending the said notification, the employer is released from liability for the delay in issuing a work book. The employer is also not responsible for the delay in issuing a work book in cases where the last day of work does not coincide with the day of registration of the termination of labor relations upon dismissal of the employee on the grounds 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, the term of the employment contract with which was extended until the end of pregnancy in accordance with the second part of Article 261 of this Code. By written request of 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 the employee applied.

This piece of legislation is directly related to

The article was written based on materials from the sites: glavkniga.ru, vashurok.ru, businessman.ru, russia-in-law.ru, www.freshdoc.ru.