Reasons for termination of an employment contract. Termination of an employment contract by agreement of the parties

SECTION III. EMPLOYMENT CONTRACT

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

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

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

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

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

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

8) the employee’s refusal to transfer to another job, required for him in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work (parts three and four of Article 73 of this Code);

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

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

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

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

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

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

Article 79. Termination of a fixed-term employment contract

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

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

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

An employment contract concluded to perform seasonal work during a certain period (season) is terminated at the end of this period (season).

Article 80. Termination of an employment contract at the initiative of the employee (by at will)

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

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

In cases where the employee’s application for dismissal on his initiative (at his own request) is due to the impossibility of continuing his work (enrollment in an educational organization, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts, containing labor law norms, 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.

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

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

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

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

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

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

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

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

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

5) repeated failure by an employee to perform labor duties without good reason, 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 entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) ;

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

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

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

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

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

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

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

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

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

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

12) lost its power.

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

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

The procedure for certification (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 workers.

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

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

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

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

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

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

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

When conducting certification, which may serve as a basis for 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.

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

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

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

1) conscription of an employee into 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 state inspection labor or court;

3) failure to be elected to office;

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

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

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

7) the occurrence 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 an authority state power the corresponding subject of the Russian Federation;

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

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

10) termination of admission to government confidentiality if the work performed requires such access;

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

12) lost its power.

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

Termination of an employment contract on the grounds provided for in paragraphs 2, 8, 9, 10 or 13 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (either a vacant position or a job that corresponds to the employee’s qualifications, or and a vacant lower position or lower paid job) that the employee can perform taking into account his state of health.

In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

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

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

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

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

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

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

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

In other cases provided for by federal laws.

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

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

Article 84.1. General procedure registration of termination of an employment contract

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

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

The day of termination of the employment contract in all cases is the last day of work of the employee, with the exception of cases where the employee did not actually work, but after him, in accordance with this present day. Code or other federal by law, the place of work (position) was preserved.

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

Note: the employer is also obliged to issue the employee on the day of termination of work a certificate of the amount of earnings for the two calendar years preceding the year of termination of work.

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

If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book.

The employer is also not responsible for the delay in issuing the work book in cases of discrepancy last day work with the day of registration of termination of labor relations upon dismissal of an employee on the basis provided for in subparagraph “a” of paragraph 6 of part one of Art. 81 or clause 4 of part one of Art. 83 present Code, and upon dismissal of a woman whose employment contract was extended until the end of pregnancy or until the end of maternity leave in accordance with part two of Art. 261 present Code. Upon written request from an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee’s application.

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 the employment contract: “termination of the employment contract” and “dismissal.” These concepts are close in meaning, but are not identical and differ in their legal content.

Thus, termination of an employment contract is the end of the labor legal 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 excluding any circumstances, the possibility of continuing labor relations, etc.).

The concept of “dismissal of an employee” is, in fact, 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.

“Termination of an employment contract” is a narrower concept; it is a voluntary termination of employment relations on the initiative of one of the parties to the employment contract or on 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, while 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 termination of an employment contract is a vital circumstance, which is enshrined in law as a legal fact necessary for terminating the employment relationship. Termination of an employment contract means simultaneously the dismissal of the employee.

The Labor Code of the Russian Federation devotes an entire chapter to termination of an employment contract - Chapter 13, which provides 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, grounds for termination of employment contracts that differ from 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 permitted by 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 existence of grounds provided for by law, the employer complies with the established procedure for terminating the employment contract, and also provides the 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 while on 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 old), 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 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.

Taking into account the opinion of the trade union body is not required if an employee who is not a member of a trade union is fired or if there is a trade union in the organization, 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 workers participating in collective negotiations during the period of their conduct cannot be dismissed at the initiative of the employer without the prior consent of the body. Authorizing them for representation, except in cases of termination of an employment contract for committing an offense 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 18 years of age at the initiative of the employer (except for cases of liquidation of the organization), in addition to compliance with the general procedure, is allowed only with the consent of the relevant state labor inspectorate and the commission for minors.

According to Art. 374 of the Labor Code of the Russian Federation, dismissal at the initiative of the employer in accordance with clause 2, sub-clause. "b" clause 3 and clause 5 of Art. 81 of the Labor Code of the Russian Federation, managers (their deputies) of elected trade union collegial bodies of an organization, its structural divisions (not lower than shop units and equivalent to them), who are not released from their main work, are allowed, in addition to the general procedure, for dismissal only with the prior consent of the corresponding higher elected trade union body.

At the same time, the provisions of part one 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. 421-O “In the case of verifying the constitutionality of the provisions of part two of Article 170 and part two of Art. 235 Labor Code of the Russian Federation and clause 3 of Art. 25 of the Federal Law “On trade unions, their rights and guarantees of activity”, which recognized as inconsistent with the Constitution 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 termination of an employment contract at the initiative of the employer. The establishment in the Labor Code of the Russian Federation of guarantees for an employee upon his dismissal for repeated failure to perform labor duties without good reason, if he has a disciplinary sanction, represents a disproportionate restriction of the rights of the employer as a party to the employment contract and at the same time as a subject of economic activity and 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 (parts 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 requirements 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 for termination of an employment contract.

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

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

4) termination of an 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 an elective job (position);

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

7) the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (part four of Article 74 of 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 report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer does not have the corresponding work (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 location 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 presupposes the mutual desire of the employee and employer to terminate the employment contract (Article 79 of the Labor Code of the Russian Federation). The employment contract is terminated within the period agreed upon by the parties, that is, at any time. An agreement to terminate an employment contract does not exclude the possibility of dismissing an employee at his own request or, if there are grounds for this, at the initiative of the employer.

Termination of an employment contract at the initiative of an employee presupposes the desire of one party (the employee) to terminate the employment contract, and the employer is obliged to terminate relations with the employee upon expiration of the notice period.

An employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless a different period is established by 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 resignation letter.

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

In cases where the employee’s application for dismissal on his initiative (at his own request) 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 labor law norms, 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.

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

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

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

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

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

If an application for termination of an employment contract is submitted by an employee under 18 years of age, it is necessary to first obtain the consent of the relevant state labor inspectorate and the commission for minors.

Resolution of the Plenum of the Supreme Court of the Russian Federation 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 ). Please keep the following in mind:

a) termination of an employment contract at the initiative of an employee is permissible in the case where filing a letter of resignation 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 responsibility to prove it rests with the employee;

b) the employment contract can 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 can be terminated at the initiative of the employer in the following cases:

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

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

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

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

5) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;

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

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

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

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

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

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

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

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

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

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

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

12) has become invalid.

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

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

The procedure for certification (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 workers.

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

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

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

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

When considering a case on 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 cases of reinstatement at work, 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 rights, including by the employees themselves, must be observed. In particular, it is unacceptable for an employee to conceal a 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 units and equivalent to them), not released from the main job, when the decision on dismissal must 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 a higher elected trade union body.

If the court establishes that the employee has abused his right, the court may refuse to satisfy his claim for reinstatement at work (while changing, at the request of the employee dismissed during a period of temporary incapacity, the date of dismissal), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of unfair 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 of March 17, 2004).

As a general rule, the parties cannot include in the employment contract additional grounds for dismissing employees other than those provided for by law, since this can be considered as a reduction in the level of guarantees for employees. In accordance with Part 2 of Art. 9 of the Labor Code of the Russian Federation, employment contracts cannot contain conditions that limit the rights or reduce the level of guarantees of workers 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, they are not subject to application.

Termination of an employment contract at the initiative of an employer with pregnant women is not permitted, except in cases of liquidation of the organization or termination of activities 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 ban 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 for other reasons not related to the employer’s initiative, 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 violation of the rules for hiring (Article 84 of the Labor Code of the Russian Federation), is carried out in in general order.

If a fixed-term employment contract expires during a woman’s pregnancy, the employer is obliged, upon her written application and upon provision of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of the pregnancy. A woman whose employment contract has been extended until the end of her 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 the woman actually continues to work after the end of her pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day the employer learned or should have learned about the end of the pregnancy.

An employment contract extended in this way, by virtue of the direct instructions of the law, does not cease to be fixed-term. In this case, the 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 permissible to dismiss a woman due to the expiration of an employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of an absent employee and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer before the end of her pregnancy (as a vacant position or a job corresponding to the woman’s qualifications, and a vacant lower-level position or lower-paid job), which a woman can perform taking into account her state of health. In this case, the employer is obliged to offer her all the vacancies that he has in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

Termination of an employment contract with women who have children under three years of age, single mothers raising a child under fourteen years of age (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 on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of part one 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 of an employee who previously performed this work, by decision of the state labor inspectorate or court;

3) failure to be elected to office;

This basis applies to those employees who were not elected to the position a second time for the position they held, although they applied for it. If an employee has not submitted documents to be elected to a position, then he is dismissed due to the expiration of the employment contract under clause 2 of Part 1 of Art. 77 Labor Code of the Russian Federation.

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

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

The recognition of an employee as completely incapacitated may take place in accordance with a medical report issued by the body or institution competent to issue such a report.

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

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

7) the occurrence of emergency circumstances that impede 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 government body of the relevant constituent entity of the Russian Federation;

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

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

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

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

11) reversal of a court decision or cancellation (declare illegal) of the decision of the state labor inspectorate to reinstate the 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 violation of these rules excludes the possibility of continuing work, in the following cases:

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

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

lack of an appropriate education document if the work requires special knowledge in accordance with federal law or other regulatory legal acts;

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

in other cases provided for by federal laws.

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

The general grounds for termination of employment contracts are indicated in Art. 77 Labor Code of the Russian Federation. We have already touched on some of them above.

The general reasons are:

1. Agreement of the parties.

As follows from Art. 78 of the Labor Code of the Russian Federation, an employment contract can be terminated at any time by agreement of its parties. It is important not only the desire of the parties to terminate the relationship, but also the agreement on the time (period, date) of termination of the contract.

Article 79 of the Labor Code of the Russian Federation imposes the obligation on the employer to warn the employee about the termination of a fixed-term employment contract in writing at least three days before dismissal, otherwise the fixed-term employment contract is transformed into an employment contract concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).

Also in Art. 79 of the Labor Code of the Russian Federation defines the moments of termination of certain fixed-term employment contracts. Thus, when concluding an employment contract for the duration of a specific job, for the duration of the duties of an absent employee, for the duration of seasonal work, such contracts are terminated accordingly: at the end of the work stipulated by the contract, with the replacement employee returning to work, at the end of the season.

In all cases, the employer must warn the employee and issue a corresponding written order, which is delivered to the employee against signature.

3. Termination of an employment contract at the initiative of the employee.

The contract is terminated at the employee’s own request (Article 80 of the Labor Code of the Russian Federation). In this case, the employee must notify the employer in writing of his desire to terminate the employment relationship at least two weeks in advance. A different period may be fixed by agreement of the parties or specified in the law (for example, the manager must notify the employer at least a month in advance - Article 280 of the Labor Code of the Russian Federation). And if an employment contract is concluded with an employee for a period of up to two months or with a seasonal worker, then the employer is notified of the early termination of the employment contract three calendar days in advance (Articles 292, 296 of the Labor Code of the Russian Federation).

If, after submitting a notice of dismissal, an employee changes his decision, he has the right to withdraw his notice at any time before the expiration of the notice period for dismissal. This is always possible, except for the situation when another employee is invited in writing to replace the resigning employee, who, in accordance with Art. 64 of the Labor Code of the Russian Federation or other federal laws cannot be refused to conclude an employment contract.

4. Termination of an employment contract at the initiative of the employer.

This paragraph does not apply independently and refers to Art. 81, which outlines the grounds for termination of the contract at the initiative of the employer. We will consider these reasons further.

In accordance with Art. 61 of the Civil Code of the Russian Federation, the liquidation of an organization entails its termination without the transfer of rights and obligations in the order of succession to other persons.

In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another area, termination of employment contracts with employees of these structural units is carried out according to the rules provided for cases of liquidation of an organization (Part 4 of Article 81 of the Labor Code of the Russian Federation). Employees must be given written notice of the upcoming dismissal at least two months in advance (Article 180 of the Labor Code of the Russian Federation).

The dismissed employee is paid at the expense of the employer a severance pay in the amount of average monthly earnings. In addition, he retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).

In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it (Part 2 of Article 178 of the Labor Code RF). And upon dismissal from organizations located in the Far North, salary retention is possible for the fourth, fifth and sixth months (Article 318 of the Labor Code of the Russian Federation).

With the written consent of the employee, the employer has the right to terminate the employment contract with him without notice of dismissal two months in advance, with the simultaneous payment of additional compensation in proportion to the reduction in the notice period (Parts 2 and 3 of Article 180 of the Labor Code of the Russian Federation).

Temporary workers (those with a contract period of up to two months) are warned about the liquidation and reduction of staff three days in advance, and severance pay may be provided for in the contract (Article 292 of the Labor Code of the Russian Federation), and seasonal workers are warned seven days in advance, and severance pay is not less than two weeks' earnings (Article 296 of the Labor Code of the Russian Federation).

When dismissing employees due to the termination of activities by the employer - an individual, the terms of notice of dismissal, as well as the cases and amounts of severance pay and other compensation payments, are determined by the employment contract (Article 307 of the Labor Code of the Russian Federation). If the contract does not specify these guarantees, the provisions of the law shall apply.

2. Reduction in the number or staff of the organization's employees.

When carrying out these activities, the employer is obliged to offer the employee another available job (vacant positions). All positions (works) that the employee can occupy (perform) must be offered, taking into account his skills and state of health.

If staff reductions lead to the dismissal of workers, then workers with greater labor productivity and (or) qualifications have an advantage.

If labor productivity and qualifications are equal, preference in remaining at work 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 their permanent and main source of livelihood);
• persons in whose family there are no other independent workers;
• employees who received a work injury or occupational disease in this organization;
• disabled people of the Great Patriotic War and disabled combatants in defense of the Fatherland;
• employees who improve their qualifications in the direction of the employer without interruption from work (Part 2 of Article 179 of the Labor Code of the Russian Federation);
• other persons specified in the collective agreement of the organization.

In accordance with Part 1 of Art. 82 of the Labor Code of the Russian Federation about the decision to reduce the number or staff of the organization’s employees and the possible termination of employment contracts with employees on this basis, the employer must also inform the elected trade union body of this organization in writing, and if the decision to reduce the number or staff of the organization’s employees may lead to mass layoffs of workers - no later than three months before the start of the relevant activities.

When dismissing workers who are members of a trade union, it is necessary to coordinate the decision with the trade union.

3. Inconsistency of the employee with the position held or the work performed due to insufficient qualifications confirmed by certification results.

On this basis, an employee may be dismissed if it is impossible to transfer him to another job with his consent. In order to protect the rights of workers, the certification commission must include a member of the commission from the relevant elected trade union body (Part 3 of Article 82 of the Labor Code of the Russian Federation).

4. Change of owner of the organization’s property.

When an employment contract with the head of the organization, his deputies and the chief accountant is terminated in connection with a change in the owner of the organization, the new owner is obliged to pay compensation to these employees in the amount of not less than three average monthly earnings of the employee (Article 181 of the Labor Code of the Russian Federation). They also cannot be deducted from them for unworked vacation days used in advance, etc. (Article 137 of the Labor Code of the Russian Federation).

Points 5 to 10 art. 81 of the Labor Code of the Russian Federation are disciplinary dismissals (penalties - Article 192 of the Labor Code of the Russian Federation), therefore the procedure for their application must strictly comply with the procedure for applying disciplinary sanctions (Article 193 of the Labor Code of the Russian Federation).

5. Repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction.

Termination of an employment contract on this basis is possible if the employee has already committed a disciplinary offense for which he is subject to in the prescribed manner a disciplinary sanction was applied and this employee again commits a disciplinary offense, and the previous sanction has not yet been lifted at this time. A disciplinary sanction is lifted automatically one year after application, unless it is lifted earlier by order of the employer.

The general rules for applying penalties are as follows:

• an explanation must be taken or an act drawn up;
• an order for each case of violation is issued no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to determine the opinion of the representative body of employees, but in any case no later than six months from the date of the misconduct , and based on the results of an audit, inspection of financial and economic activities or an audit - no later than two years from the date of the offense.

6. One-time gross violation of labor duties by an employee.

A single gross violation of labor duties means:

a) absenteeism, i.e. absence from work for the entire shift or absence from the workplace without good reason for more than four hours in a row during the working day;

b) appearing at work in a state of alcohol, drug or other toxic intoxication.

Dismissal is possible only if the employee was drunk during working hours on the territory of the organization or facility where, on behalf of management, he had to perform labor functions.

The employee’s presence of alcohol, drugs or other toxic intoxication and the fact of his appearance in this state at work must be proven by the employer. The evidence will be a medical report or other evidence (for example, witness testimony);

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

d) committing at the place of work theft (including small) of someone else’s property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of an authority authorized to apply administrative penalties;

e) violation by an employee of labor protection requirements, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences.

7. Commitment of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of trust in him by the employer

Workers to whom this basis can be applied are persons servicing monetary and commodity assets. On this basis, watchmen, cleaners, etc., who do not service (storage, processing, manufacturing) monetary and commodity values, although they can use them in the process of work, cannot be fired.

The application of this basis does not depend on other types of liability and on the existence of an agreement on full liability. In this situation, the guilt of the employee is established by the employer himself on the basis of the evidence available to him.

8. Commitment by an employee performing educational functions of an immoral offense incompatible with the continuation of this work.

There is no definition of immoral offense in the law. It seems that it should be understood as offenses that violate accepted legal norms, directly related to morality, committed by an employee both at work and at home and that do not comply moral qualities requirements for positions held or work performed related to the education of minors.

On this basis, only employees performing educational functions can be dismissed, i.e. teachers, social educators, educators, etc. Persons performing only technical duties cannot be dismissed on this basis.

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

10. One-time gross violation by the head of the organization (branch, representative office) or his deputies of their labor duties.

A manager can be dismissed for general one-time gross violations (Article 81 and 6 of the Labor Code of the Russian Federation), as well as for other gross violations that must be specified either in an individual contract with the employee or in local regulations with which the manager is familiar with painting.

11. Submission of false documents by the employee to the employer when concluding an employment contract.

In accordance with the Labor Code, the employee presents a whole package of various documents (Article 65 of the Labor Code of the Russian Federation), which can be legally expanded in some cases, taking into account the specifics of the work.

Forgery of documents can be in form (when the entire document is fake) and in content (when a valid document contains false entries).

12. This paragraph - termination of access to state secrets - was moved by the legislator to Art. 83 TK.

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

Termination of the contract due to circumstances beyond the control of the parties

In accordance with Art. 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. Calling up an employee for military service or sending him to an alternative civilian service that replaces it.

Upon termination of labor relations on the specified basis, the employee is paid severance pay in the amount of two weeks' average earnings (Article 178 of the Labor Code of the Russian Federation).

Termination of an employment contract on this basis is carried out on the basis of an application from the employee upon presentation by the employee of a summons from the military registration and enlistment office to appear at the recruiting station for service. Only in this case does the Federal Law “On the Status of Military Personnel” guarantee the right of a serviceman who worked at a state (municipal) enterprise before conscription to return to his previous job within six months from the date of demobilization.

2. Reinstatement of an employee who previously performed this work by decision of the state labor inspectorate or court.

Termination of an employment contract on this basis is possible only if it is impossible to transfer the employee with his consent to another job. Moreover, in this case, the employee is paid severance pay in the amount of two weeks’ average earnings (Article 178 of the Labor Code of the Russian Federation);

3. Not being elected to office.

Logically, this paragraph applies in the event of non-re-election of an employee holding a certain position, new term. Since in the competitive filling of a position, in addition to such an employee, persons filling other positions can participate, and if they are not elected, they remain in their positions and there is no need to dismiss them. Also, an applicant from the street, i.e., not an employee of the organization, can participate in the competitive selection, and if he is not elected, he also does not need to be fired, since he did not become an employee.

4. Conviction of an employee to a punishment that precludes the continuation of previous work in accordance with a court verdict that has entered into legal force.

In accordance with Art. 392 of the Code of Criminal Procedure of the Russian Federation, a court verdict that has entered into legal force is mandatory for all government bodies, bodies local government, public associations, officials, other individuals or legal entities and is subject to strict execution throughout the Russian Federation.

If the punishment chosen in the sentence prevents the employee from continuing his work activity (for example, imprisonment, deprivation of the right to hold a certain position or engage in certain activities), then in this case the employment contract is subject to termination by the employer issuing an appropriate order.

According to Part 3 of Art. 77 of the Labor Code of the Russian Federation, the day of dismissal of an employee is the last day of his work. If the employee was under arrest before the trial, then the day of his dismissal will be considered the last day of his work. This is one of the few cases of dismissal of an employee since last month.

5. Recognition of the employee as completely disabled in accordance with a medical report.

In this case, the employer is obliged to terminate the employment relationship with the employee. The basis for issuing an appropriate order can only be a medical report from authorized experts of the MSEC (medical and social expert commission).

6. Death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as deceased or missing.

If the first half of this basis is clear enough, then the issue of recognizing a person as missing or deceased is extended in time and also leads to dismissal in the past after the person is recognized as such in judicial procedure.

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

Not only an event must take place, but also a decision to recognize it as an emergency by the relevant authority.

8. Disqualification or other administrative punishment that precludes the employee from fulfilling his duties under the employment contract.

9. Expiration, suspension of validity for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, right to carry a weapon, other special right) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of the employee fulfilling his duties under the employment contract.

10. Termination of access to state secrets if the work performed requires such access.

In Art. 23 of the Law of the Russian Federation of July 21, 1993 No. 5485-1 “On State Secrets” defines the conditions for terminating the access of an official or citizen to state secrets.

If, for one of the reasons given therein, the employee’s access to state secrets is terminated and as a result he loses the opportunity to further carry out his labor functions, then the employment contract can be terminated by the employer under clause 12 of Art. 81 Labor Code of the Russian Federation.

Dismissal is allowed under clauses 8-10 if it is impossible to transfer the employee with his written consent to another job available to the employer (either a vacant position or a job corresponding to the employee’s qualifications, or a vacant lower position or lower-paid job), which the employee can carry out taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

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

12. Bringing the total number of employees who are foreign citizens or stateless persons into compliance with the permissible share of such employees established by the Government of the Russian Federation for employers carrying out certain types of economic activities on the territory of the Russian Federation.

13. The emergence of restrictions on engaging in certain types of labor activity established by the Labor Code and other federal laws that exclude the possibility of an employee fulfilling his duties under an employment contract.

Such dismissal is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

Additional grounds for termination of contracts with certain categories of employees.

The current labor legislation provides for a significant list of grounds for termination of an employment contract. They are contained directly in the Labor Code of the Russian Federation, as well as in other federal laws.

In Art. 278 of the Labor Code of the Russian Federation provides additional grounds for terminating an employment contract with the head of an organization. In Art. 288 of the Labor Code of the Russian Federation contains an additional basis for terminating an employment contract with persons working part-time. In Art. 336 of the Labor Code of the Russian Federation specifies additional grounds for termination of an employment contract with a teaching employee. In Art. 241 of the Labor Code of the Russian Federation outlines additional grounds for the dismissal of employees in the representative office of the Russian Federation abroad. In Art. 248.11 provides additional grounds for the dismissal of athletes.

There are special grounds for dismissal from service of civil servants, law enforcement officers, resignation of judges, etc.

LABOR CODE REQUIREMENTS

The main points of labor relations are:

1. Freedom of choice of activity.

2. Assistance in employment.

3. Protection against unemployment.

4. Ensuring fair conditions at work.

5. Timely payment of funds.

6. Ensuring equal rights for employees.

7. Unprecedented compensation for harm caused to an employee in the performance of his work duties.

8. Social partnership.

Documentation

1. Passport or other document to identify the applicant.

2. Work record book. It is not required to be presented in the following cases:

the applicant gets a job for the first time. In this case, the work book is issued by the employer;

the work book is lost or damaged - the applicant for a job, upon his application (indicating the reason for the absence of a work book), is issued a new one;

if the employee takes part-time work.

After termination of the employment relationship, a work book is issued to the employee.

3. Insurance certificate of state pension insurance (SNILS). If the applicant gets a job for the first time, then SNILS is issued by the employer.

4. Military ID or other military registration document (for example, registration certificate). Mandatory for those liable for military service and persons subject to conscription for military service.

Combining work and studyAre you studying and want to get a job? Find out how study leave is paid.

Features of making entries in the employee’s work book.

5. Document on education (diploma, an assessment sheet may be required). Required to confirm the qualifications of the applicant and his education corresponding to the position for which he is applying.

For some professions, such as truck crane operator, slinger, excavator operator, etc., it is also necessary to have a certificate of completion of training in the relevant profession, confirming his qualifications. Such employees must undergo re-certification annually (most often in the employing organization), for which a corresponding mark is placed on the certificate.

Drivers (as well as operators of truck cranes and excavators) are required to have a driver's license to drive the type of transport on which they will work.

6. Certificate of presence or absence of a criminal record. Required when applying for a job for which, in accordance with the legislation of the Russian Federation, persons with a criminal record or subject to criminal prosecution are not allowed.

Conditions of employment, nature of work:

· main job, full-time;

· part-time with payment in proportion to the time worked (for external part-time worker);

· to replace a temporarily absent employee;

· on conditions internal part-time job with payment in proportion to the time worked;

· main job, temporary, irregular working hours (for the director, the sole founder of the organization);

· main job, commission system of remuneration in the amount of 10 percent of the cost of products sold by the employee, permanently (for an employee with a commission salary), etc.

Reasons for termination of an employment contract

Let's consider the main reasons for this desire of the boss or leader. They are expressly stated in the law:

• termination of the activities of the organization or institution where the employee worked;
• staff reduction;
• change of owners of the enterprise;
• violation of instructions and disciplinary complaints against an employee, in addition, failure by him to fulfill his direct duties without good reason;
• gross violation of work obligations.

But there are cases when it is the employee who wants to terminate the employment contract, and not the manager (employer). There may be many reasons for termination on this side. In this case, there are a number of especially So, the grounds for termination of an employment contract are:

1) agreement of the parties (Article 78);

2) expiration of the employment contract (clause 2 of Article 58), except for cases where the employment relationship actually continues and neither party has demanded its termination;

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

4) termination of an employment contract at the initiative of the employer (Article 81);

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

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

7) the employee’s refusal to continue working due to a change in the essential terms of the employment contract (Article 73);

8) the employee’s refusal to transfer to another job due to health conditions in accordance with a medical report (part two of Article 72);

9) the employee’s refusal to transfer due to the employer’s relocation to another location (part one of Article 72);

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

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

5. Wages (employee remuneration) - remuneration for work depending on the employee’s qualifications, complexity, quantity, quality and conditions of the work performed, as well as compensation and incentive payments. (Article 129 of the Labor Code of Russia) Salary (colloquial salary) is monetary compensation (other types of compensation are practically unknown) that an employee receives in exchange for his work.

Nominal - the amount of money in nominal size, which the employee receives in the form of remuneration for work.

Nominal wages include:

payment accrued to employees for time worked, quantity and quality of work performed;

payment based on piece rates, tariff rates, salaries, bonuses for piece workers and time workers;

additional payments due to deviations from normal conditions work, for night work, for overtime work, for crew leadership, payment for downtime not due to the workers’ fault, etc.

Real is the amount of goods and services that can be purchased with a nominal wage; real wage is the “purchasing power” of nominal wages. Real wages depend on nominal wages and the prices of purchased goods and services.

6. Shortened working hours are established for:

minors under 18 years of age (see Article 43 of the Labor Code of the Russian Federation);

certain groups of workers due to the characteristics of their work (workers with heavy and harmful conditions labor, doctors, teachers, teachers of educational institutions, etc., see Art. 44 - 45 Labor Code of the Russian Federation);

on-the-job training;

women working in rural areas;

disabled people of groups I and II;

teachers, lecturers and other teaching staff of educational institutions.

Working hours are also reduced when working at night (from 10 p.m. to 6 a.m.). This rule does not apply to:

employees who already have reduced working hours;

working in continuous production, when it is necessary to balance day work with night work;

workers specially hired to perform work at night;

workers employed in shift work with a six-day work week with one day off.

7. Trade union (trade union) - a voluntary public association of people connected by common interests based on the type of their activities in production, in the service sector, culture, etc.

Associations are created for the purpose of representing and protecting the rights of workers in labor relations, as well as the socio-economic interests of members of the organization, with the possibility of wider representation of employees.

The working hours of teenagers are strictly limited:

For workers under 16 years of age - no more than 24 hours a week;

For workers from 16 to 18 years old - no more than 35 hours per week (Article 92 of the Labor Code of the Russian Federation).

As for wages, under a time-based system they must be paid taking into account the reduced working hours. But you can pay an employee extra from your own funds up to the salary level of those who work full time. Piecework payment is calculated depending on output and can also be increased through additional payments (Article 271 of the Labor Code of the Russian Federation).

In labor relations with minors under 18 years of age, it is prohibited to: entrust them with heavy, harmful, dangerous work (Article 265 ZH RF); attract them to work at night, on weekends and holidays (Article 268 of the Labor Code of the Russian Federation); send them on business trips (Article 268 of the Labor Code of the Russian Federation); install them probation(Article 70 of the Labor Code of the Russian Federation); conclude agreements with them on full financial liability (Article 244 of the Labor Code of the Russian Federation).

If a teenager caused material damage to a company, can he be held liable and to what extent?

The mining contract can be terminated at any time by agreement of the parties. However, the rule devoted to this basis for termination of employment relations is too general and does not answer many practical questions. It is not clear, for example, whether it is possible to stipulate in the agreement that the employment contract is not terminated immediately, but several months after its conclusion? Do the parties have the right to refuse to fulfill such an agreement? Is it possible to terminate an employment contract by agreement of the parties with a pregnant woman? We will answer these and other questions taking into account the current judicial practice.

Agreement of the parties is one of the grounds for termination of an employment contract (Part 1 of Article 77 of the Labor Code of the Russian Federation). In accordance with Art. 78 of the Labor Code of the Russian Federation, an employment contract can be terminated at any time by agreement of the parties.

To terminate an employment contract on this basis, the will of not one, but two parties is required. Labor relations are terminated by mutual agreement, which ensures a balance of interests of the parties to the employment contract (Article 2 of the Labor Code of the Russian Federation).

The initiator of termination of an employment contract can be either the employee or the employer. But the expression of will in any case must be agreed (appeal ruling of the Court of the Khanty-Mansiysk Autonomous Okrug - Ugra dated July 17, 2012 in case No. 33-3087/2012).

If the agreement to terminate the employment contract is concluded by the parties in writing and does not contradict the requirements of labor legislation, then it gives rise to legally significant consequences for the parties.

Agreement form

In Art. 78 of the Labor Code of the Russian Federation does not say anything about the form in which an agreement to terminate an employment contract should be concluded. Based on this, in judicial practice it is concluded that drawing up a single document called “Agreement on Termination of an Employment Contract” is not at all necessary.

Arbitrage practice

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The employee expressed a desire to terminate the employment contract by agreement of the parties by writing a corresponding statement. The employer, in turn, put a resolution on it. Having studied this document, the court came to the conclusion that the agreement between the employee and the employer on dismissal under clause 1 of part 1 of art. 77 of the Labor Code of the Russian Federation was reached by the parties to the employment contract.

The court considered the plaintiff's arguments that the agreement should be formalized in a separate written document to be erroneous. In his opinion, they are based on an incorrect interpretation of labor law norms.

To terminate an employment contract under clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, it is enough for the parties to reach mutual agreement. In this case, the form of the agreement does not matter, since the provisions of Art. 78 of the Labor Code of the Russian Federation do not contain any requirements for its execution.

Typically, agreement between the parties means reaching an agreement, a joint and mutual expression of will to commit certain actions. Moreover, such an agreement can be either oral or written.

Since Art. 78 of the Labor Code of the Russian Federation does not contain a requirement for a written agreement, then the scheme can well be considered as an agreement. It does not contradict the current labor legislation in any way.

The plaintiff's references to Art. 67 of the Labor Code of the Russian Federation (there, we recall, we're talking about about drawing up an employment contract) the court was also not convinced. This article establishes requirements for the form of an employment contract, and not an agreement on its termination (appeal ruling of the Tver Regional Court dated February 29, 2012 in case No. 33-559).

In another case, the court indicated that the available evidence (the employee’s application to terminate the employment contract by agreement of the parties and the employer issuing a dismissal order) indicates that an agreement has been reached (appeal ruling of the Yaroslavl Regional Court dated July 30, 2012 in case No. 33-3957/2012).

Let us note that Art. 78 of the Labor Code of the Russian Federation does not contain a requirement for a written agreement. However, this does not mean that it can be concluded orally. The point is that Art. 67 of the Labor Code of the Russian Federation provides written form for an employment contract. And since the agreement of the parties terminates the rights and obligations of the parties arising from a written document, the agreement on its termination must be drawn up “on paper”.

The employee must prove coercion himself

The most common reason on which employees try to challenge the concluded agreement to terminate an employment contract is the argument that the document was signed under duress. The lack of voluntariness, in theory, should invalidate the document signed by the parties. However, the obligation to prove the circumstances confirming the pressure on the employee when signing the agreement rests with him (Article 56 of the Code of Civil Procedure of the Russian Federation).

When establishing the actual will of the employee, the court evaluates all circumstances worthy of attention. For example, he may take into account whether the employee has a higher legal education. This means that such an employee had to understand the legal consequences of his actions (decision of the Moscow City Court dated October 10, 2011 in case No. 33-30743).

If the employee cannot prove the fact of pressure, then the agreement to terminate the employment contract will most likely remain in force.

Arbitrage practice

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The court found it lawful for the employer to issue an order to dismiss an employee on the basis of a previously concluded agreement with him to terminate the employment contract. The employee tried to prove in court that he was forced to enter into this agreement by the employer. In the case file, he submitted an expert opinion, from which it followed that he was characterized by emotional sensitivity, anxiety, a tendency to worry, and also there were signs of adverse psychological changes in connection with the dismissal.

However, the court did not accept such a conclusion as evidence, since it in itself did not confirm the fact of coercion to sign the agreement. It only indicated the individual psychological characteristics of the employee, but did not indicate any illegal actions on the part of the employer (appeal ruling of the Saratov Regional Court dated June 28, 2012 in case No. 33-3502/2012).

Thus, if the employee does not provide evidence of coercion and lack of will, then the order to dismiss him cannot be declared illegal (appeal ruling of the Pskov Regional Court dated July 3, 2012 in case No. 33-1027/2012).

Evidence of Coercion

The opposite statement is also true: if the employee can prove that he was forced to sign the agreement, then the court will declare the agreement illegal. Such an agreement will not entail any legal consequences. If an employee has been fired, he will have to be reinstated.

Arbitrage practice

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The court concluded that the employee was forced to sign an agreement to terminate the employment contract based on an analysis... of the text of the agreement itself. The document stated that the employer is obliged, upon restoration of full production volume, to hire the employee in his previous position. On this basis, among other things, the court came to the conclusion that at the time of signing the agreement there was no voluntary and agreed expression of will of both parties to the employment contract to terminate it.

Taking into account this condition, the employee’s explanations about his lack of voluntary expression of will to terminate the employment contract by agreement of the parties, testimony, the court reinstated him at work (appeal ruling of the Supreme Court of the Republic of Buryatia dated June 18, 2012 in case No. 33-1568).

Let's give another example.

Arbitrage practice

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From the case materials it followed that the employee was on maternity leave, during which he was given notice of his upcoming dismissal. The employer informed that the position held by the employee was being reduced, and therefore he was subject to dismissal in two months. At the same time, the employee was given a proposal to terminate the employment contract by agreement of the parties.

On the day the employee returned to work, the HR specialist, without explanation or familiarization, insisted that the employee sign the documents she presented. To the employee’s arguments that he did not understand legal documents and he needed to familiarize himself with them, she responded that this was just a formality. After signing the submitted documents, the personnel officer, putting them in a folder, said that the company was settled with him and she would not make any payments to him, he was fired. Arriving home, the plaintiff discovered that the employment contract was terminated not due to staff reduction, but by agreement of the parties, although the employee did not give consent to this.

From the employee’s explanations it followed that he did not want to quit his job by agreement of the parties; I did not write a letter of resignation. He has four dependent children. By signing the papers under duress and under pressure from a specialist from the HR department, he assumed that he was signing documents on staff reduction based on a notification. The personnel officer deliberately misled him and deceived him into signing an agreement to terminate the employment contract by agreement of the parties.

The court took into account that before these events the employee had no intention of resigning by agreement of the parties, since in this case he would have lost the guarantees provided for by the current legislation in case of staff reduction (Article 179 of the Labor Code of the Russian Federation).

In addition, the court noted that the agreement does not contain any additional guarantees or compensation for early termination of the contract.

Thus, the court considered that there was no agreement between the parties to terminate the employment contract (cassation ruling of the Supreme Court of the Republic of Tyva dated October 11, 2011 in case No. 33-853/2011).

A barrel of honey and a fly in the ointment

Termination of an employment contract by agreement of the parties is convenient when an employee, for example, has committed a disciplinary offense that serves as the basis for his dismissal, or has not passed certification for suitability for the position held. In this case, in order not to create obstacles to his further employment, as well as to create the opportunity for the employer to find a replacement, the parties may enter into an agreement to terminate the employment contract. It can be written in it that the employment contract is terminated, say, 2-3 months after the conclusion of the agreement.

During this period, the employer is looking for another employee, and when the “X” hour comes, he fires the previous one. An employee in such a situation receives an acceptable entry in the work book and has the opportunity to work for several months, receiving wages. If the employee does not want to work further, the parties may terminate the employment relationship before the agreed date.

Arbitrage practice

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The employee and the company terminated the employment contract by agreement of the parties. The reason for the dismissal was the fact that electronic scales went missing from the workshop while the employee was on duty. In this regard, the company had complaints about the employee’s work, which were expressed to him. However, the employee regarded them as pressure on him. The court indicated that the employer’s demands to comply with the terms of the employment contract are based on the law, and voicing claims cannot be regarded as exerting psychological pressure.

Based on the results of the incident, the employer offered the employee dismissal by agreement of the parties. Its text was presented to the employee for review and subsequently signed with his own hand. Under such circumstances, the court considered that the dismissal of the employee was lawful (appeal ruling of the Saratov Regional Court dated May 24, 2012 in case No. 33-2643/2012).

For your information

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In practice, the employer often finds a replacement employee before the deadline agreed upon by the parties. Moreover, it is impossible to insure against such a situation by stipulating in the agreement that the employment relationship ends from the moment the employer finds a replacement. In this case, the condition on the moment of termination of the employment contract will not be determined, because It is unclear when the employment contract will end or whether this will happen at all. For the employer, this situation is fraught, first of all, with the fact that in the event of a dispute, the court will consider the agreement between the parties not to be reached.

Compensation

Based on the concluded agreement, the employer issues an order to dismiss the employee, makes payments to him and issues a work book. If the employment contract provided for any compensation to the employee, then it is necessary to clarify once again that they were established specifically in the event of termination of the contract by agreement of the parties.

Arbitrage practice

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The employment contract established that if it is terminated at the initiative of one of the parties, the employee is paid wages in the amount agreed upon by the parties. However, after the termination of the employment contract, no such compensation was paid. The employee went to court.

During the investigation, it turned out that the employee was dismissed by agreement of the parties. In this regard, there are no grounds for payment of compensation (cassation ruling of the Supreme Court of the Republic of Tyva dated April 17, 2012).

Agreement through a representative

An analysis of judicial practice shows that an application for termination of an employment contract can be submitted to the employer not by the employee himself, but by his representative. Of course, if the power of attorney contains the necessary powers for this. Let's consider the situation using the example of filing an application for termination of an employment contract at the initiative of the employee himself.

Arbitrage practice

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The representative, by proxy, handed over to the employer the employee’s application to terminate the employment contract. Subsequently, all documents on the termination of employment relations (bypass sheet, dismissal order, receipt of receipt of the work book) were signed by the representative.

In court, the employee tried to challenge his signature on the application for termination of the employment contract, and an examination confirmed that the signature did not really belong to him.

Despite this, the court still sided with the employer.

The representative acted on the basis of the notarized power of attorney issued to him, without going beyond the powers specified therein. After the dismissal, the employee did not make any claims against his representative, did not dispute his actions, and did not turn to the employer for explanations. This means that he knew and agreed with all his actions.

The court, in addition, indicated that the actions of the employee and his representative were unfair, aimed at causing material damage to the employer and damage to his business reputation, and not at the actual restoration of labor rights. Such actions are an abuse of law, which is unacceptable (ruling of the Supreme Court of the Russian Federation dated June 10, 2011 No. 5-B11-37).

Agreement with a pregnant employee

It should be taken into account that even the fact that the employee was pregnant, of which the employer was aware, is not a basis for invalidating the agreement concluded between them to terminate the employment contract. The point is that Art. 78 of the Labor Code of the Russian Federation (as well as other norms of labor legislation) does not exclude the possibility of terminating employment relations by agreement with a pregnant woman.

Arbitrage practice

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The employee demanded in court that the agreement to terminate the employment contract be declared invalid. Her arguments boiled down to the fact that at the time of signing it, she was pregnant, in addition, when signing the agreement, she was under psychological pressure.

The court indicated that termination of an employment contract with pregnant women is not allowed at the initiative of the employer. In the situation under consideration, the employment contract was terminated after mutual agreement was reached between the parties.

In support of her second argument, the employee presented an expert opinion. It confirmed that there was an audio recording on the employee’s phone confirming psychological pressure.

But the court did not take this argument into account either. The recording was made on a mobile phone and submitted to the case file on a removable USB drive, i.e. has a recycled character. It is taken out of context, and the location of the recording and the persons participating in the conversation have not been reliably established. Under such circumstances, the audio recording was recognized by the court as unacceptable evidence (appeal ruling of the Vladimir Regional Court dated May 17, 2012 in case No. 33-1268/2012).

Cancellation of the agreement

As already noted, termination of an employment contract by agreement of the parties must be based on a voluntary expression of will. Therefore, it is quite logical that such an agreement can only be annulled if there is the will of both parties.

This is confirmed by the Plenum of the Supreme Court of the Russian Federation in paragraph 20 of the resolution of April 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.” It says that the parties can terminate the employment contract at any time within the period specified by them. Cancellation of the agreement regarding the period and grounds for dismissal is also possible with mutual agreement.

Arbitrage practice

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Some time after the agreement was concluded, the employee changed his mind about quitting. Despite this, the employer terminated his employment contract. The dispute went to court.

The court did not take into account the dismissed employee’s argument that he had changed his intention to quit. He emphasized that the annulment of the agreement regarding the grounds and period of dismissal reached between the parties to the employment contract in accordance with Art. 78 of the Labor Code of the Russian Federation, is possible only with their mutual consent. The employer did not change his intention to terminate the employment contract (ruling of the St. Petersburg City Court dated October 4, 2011 No. 14946).

The Moscow City Court came to a similar conclusion in its ruling dated February 14, 2012 in case No. 33-3653/2012.

An agreement to cancel an agreement can follow not only from a signed agreement or a statement from the employee to the employer with the latter issuing an order to cancel a previously issued order to dismiss the employee, but also from the actual behavior of the parties to the labor relationship.

Arbitrage practice

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The employee and the employer entered into an agreement to terminate the employment contract, establishing the company’s obligation to pay compensation upon dismissal in the amount of two official salaries. However, on the last day the employee did not stop working, continuing to work in the same position.

The dispute arose over the compensation that the parties agreed upon in the agreement on termination of the employment contract. The court of first instance considered that the previous employment contract had terminated, and new relations had arisen between the parties, which were not properly formalized by the employer.

However, the next instance did not agree with this position, noting that no new labor relations arose between the parties. The order to dismiss the employee was not executed, since he continued to work. A timesheet was kept for him. Consequently, the actual behavior of the parties indicated that their previously reached agreement to terminate the employment contract was also canceled by agreement. The employment relationship between the parties continued. Thus, there could be no talk of any compensation (ruling of the Moscow City Court dated February 16, 2012 in case No. 33-4995).

Thus, the agreement to terminate the employment contract is effective means termination of the labor relations of the parties on the basis of their mutual and voluntary expression of will.

To conclude such an agreement, we recommend that the employer receive from the employee a handwritten statement with a request to dismiss him by agreement of the parties. This will indicate that the initiative came from the employee, and there was no pressure from the employer. The application must be stamped with the visa of the employer's representative. Then the parties enter into an agreement to terminate the employment contract.

If an employee was fired in violation of the law, then in order to avoid negative consequences he should be immediately reinstated. An order to reinstate an employee to his previous position, canceling a previously issued order of dismissal, must be sent by the employer by mail or transmitted in any other available way.

Unlawful dismissal cannot be corrected by the employer by canceling the dismissal order after the actual termination of the employment relationship without notifying the employee and obtaining his consent to restore the violated right. The Labor Code of the Russian Federation does not grant the employer the right to take any legally significant actions affecting the rights and interests of an employee without his prior written consent, and especially after the employment relationship was terminated at the initiative of the employer himself (cassation ruling of the St. Petersburg City Court dated December 21 .2011 No. 33-18575/2011).