Classification of bases
Termination of an employment contract is a fairly common action in the relationship between an employer and an employee. There are many reasons for this, which are described in detail in labor legislation. The grounds for termination of an employment contract are numerous, therefore labor legislation contains as many as 3 concepts related to this issue, which differ from each other in essence.
In addition to “termination of the contract”, there is also “termination of the employment contract” and “dismissal” of the employee.
The broadest meaning of these terms is given to the “termination” of the contract, since it includes cases of completion of the labor process by mutual agreement of the parties, the activity of the employee or employer.
“Termination” of an employment contract refers to those situations in which the employment relationship is changed by the activity of the parties to the contract. According to the laws of logic, such a name can be used in relation to all grounds, except those that are not subject to the will of the parties. The term “dismissal” is identical to the concept of “termination”.
Termination of an employment contract by mutual will of the parties
Article 77 of the Labor Code in 11 paragraphs lists the general grounds for termination of an employment contract, including a change in the validity of the agreement at the will of the parties, the employee or the employer, due to objective circumstances independent of the will of persons, and others.
Clause 1 of Article 77 provides for agreement of the parties as one of the grounds. For this reason, it is possible to terminate both a contract for an indefinite period and a fixed-term employment contract. The peculiarity of the contract is that the wishes of only one party are not enough to terminate the legal relationship, regardless of who initiated the termination.
Termination of the contract on the grounds under consideration occurs exactly within the period agreed upon by the parties.
If the parties do not agree on the end time of the employment contract, then termination on this basis is not permitted. In cases where the date of termination of the contract is agreed upon by the parties, but the employee does not terminate his labor function and the employer does not issue a dismissal order, the existing employment relationship continues.
Consent of the parties: what is the difference?
There are situations when an employee is forced to write a letter of resignation of his own free will. The reasons, of course, are purely individual. The new director is selecting personnel, the employee is no longer happy, there is a reorganization, pregnant women are often forced to do this, etc. The Labor Code has two paragraphs of Article 77, which seem equivalent to ordinary citizens:
- By agreement.
- At your own request.
Many professional lawyers involved in labor disputes know that termination of a contract in the second case can be challenged in court. It is enough to provide arguments and prove that the employee was subjected to psychological influence by the administration of the enterprise. Consequently, the termination order will be canceled in court, and the employee will be reinstated with all rights.
Clause 1 art. 77 of the Labor Code of the Russian Federation does not provide for such a loophole. It just follows from the fact that the employee and the employer have any conflicts and disagreements.
As a rule, the former employee is paid some kind of “compensation” funds in order to terminate the employment relationship peacefully and without consequences for both parties. In court, all arguments will be useless. It is almost impossible to regain your labor rights.
Termination of an employment contract due to the employee’s refusal to continue the employment relationship
An employee may refuse to fulfill personal labor obligations as a result of a radical change in contractual terms previously agreed upon by the parties. If such a change is due to the initiative of the employer, then he is obliged to notify the employee in writing 2 months before making changes to the text of the employment contract.
If the employee does not agree to work under other conditions, the employer is obliged to provide him with another job suitable for his conditions and state of health or transfer him to a vacant lower-paid position.
An employee has the right to refuse to resume work if the owner of the organization changes, the jurisdiction (subordination) of the organization changes, or its reorganization occurs.
The agreement can be terminated by the employee’s refusal in various cases of a significant deterioration in the terms of the contract, for example, in the case of a necessary relocation of the organization to another location, since in this case unnecessary inconveniences for the employee not provided for in the contract may arise.
When will the payment be made?
After an official order, all payments for time worked must be made on the day of dismissal. And this is not a “gift” from the company, it is an obligation according to the Labor Code. Violation of this norm is a reason to defend your rights and contact regulatory authorities. In addition to salary, the employee is entitled to payment for unused vacation. You can calculate it yourself if you know your average monthly earnings and the exact number of days worked. Payments under it must also be made on the day of the dismissal order.
The only exception to this rule is sick pay. From the moment the medical certificate is provided, the accounting department recalculates within 10 days and pays it on payday at the enterprises.
If the employee is not on site on the day of payment (business trip, vacation, sick leave), then all payments must be made no later than one day after his request.
Termination of the contract at the initiative of one of the parties
Termination of labor agreements is permitted by active actions of either party - the employer or the employee (Articles 71, 80, 81 of the Labor Code of the Russian Federation). The termination of contractual agreements by the personal will of the employee is otherwise called dismissal. The employee has the unconditional right to unilaterally refuse the employment relationship. This fully applies to the constitutional principle of freedom of labor.
The only condition established by law is the procedure according to which the employee must notify the administration in writing of his dismissal.
The employer has the right to pay the employee only on the grounds contained in the law or contract. An employer, unlike an employee who resigns at his own request, is limited in his right to freely decide on the refusal of the employee’s services.
It is possible to dismiss an employee if the dismissal:
- motivated;
- is carried out in accordance with the established procedural order;
- accompanied by the issuance of severance pay;
- applies to persons for whom there is no prohibition on dismissal at the initiative of the employer (for example, pregnant women).
If you change your mind, what should you do?
Such cases are also not uncommon. The reasons can be different: there was no agreement on a new place of work, the director realized that the employee really wanted to leave, and improved working conditions and much more.
To cancel an application that has already been submitted, you must write and also officially register a new one in accordance with all the rules. No matter how good the relationship between him and the employer may seem to the employee, it is important to know the main rule: the application for refusal of dismissal must be submitted officially, i.e. in writing through a secretary or by mail.
Grounds excluding the possibility of continuing the contract
Facts that arise against the will of the parties include, for example, conscription into military service, the sentencing of an employee to punishment, the loss of the employee’s ability to work, the elimination of an employee’s access to state secrets, if such access is necessary for a specific job.
The terms of the contract may be violated, in particular, by concluding a contract contrary to a court decision to prohibit engaging in a certain type of activity or hiring an employee who has health contraindications. The Labor Code, when considering cases of termination of a contract, also regulates, among others, a number of grounds that exclude the validity of an employment contract.
The law lists them as:
- termination of the agreement;
- the presence of circumstances that arose not by the will of the parties;
- violation of the accepted conditions for concluding an employment agreement (Articles 79, 83, 84 of the Labor Code).
Both the employee and the employer can declare that the contract has expired. Moreover, if none of these parties has received a demand to terminate the agreement, and the employee is still doing his job, then the fixed-term nature of the contract loses force and it is renegotiated for an indefinite future.
What is it for?
There are often cases when the employer is not against such dismissal. But he had no reason to do it himself. And then the employee himself brings such a letter of resignation under clause 3 of Art. 77 Labor Code of the Russian Federation.
Then after some time the employee announces that he has changed his mind. The director, knowing the legislation, says with joy on his face that “I understand everything, continue working.”
After a two-week period from the date of writing the application, a dismissal order is issued in accordance with clause 3 of Article 77 of the Labor Code of the Russian Federation - at one’s own request.
There is no use going to court. Legally, the director did everything correctly. One of the principles of law was at work here: “Most moral principles become legal norms, but not all.”
When refusing an application of your own free will, there is one very important nuance. If, from the moment the employee was fired until his refusal, a written invitation was sent to another person to accept this position, then it will no longer be possible to cancel it.
Here the law will be on the side of the future employee, i.e. someone who has already been invited. Because Now no one has the right to refuse him employment.
Therefore, it is necessary to weigh everything carefully before writing a letter of resignation. There are times when there is no way back.
Registration of the contract termination procedure
The description of the grounds for termination of an employment contract will not be entirely complete if we do not consider the documentary procedure established for cases of its termination.
The contract is terminated by an order from the employer, with the obligatory indication of the grounds for dismissal, the date, and a link to the article of the Labor Code. The order is issued to the employee for review against signature. Then he is given a work book with information entered into it using the legal formulations of the Labor Code and other laws.
Any entries made in the work book during work in the organization must be certified by the employer or other official, the seal of the organization and directly the personal signature of the employee himself.
Author of the article
Clause 3 art. 77 Labor Code of the Russian Federation
This refers to termination of the contract at the initiative of the employee himself.
The situation is controlled by Article 80:
- A citizen can resign by writing a written application, after working for 2 weeks.
Please note: the term of service may be changed if it is prescribed in the Labor Code or other law.
- If the termination is due to the employee’s inability to continue working (for example, the start of training or retirement) or violations on the part of the employer, he can himself indicate the period within which he will need to terminate the contract.
- On the last working day, the employee must receive a work book, full salary and other necessary documents.
- While the work period has not expired, the employee has the right to withdraw the application and continue working, but only if a new person is not invited in writing to take his place.
- If the employment contract has not been terminated and the employee does not intend to leave (would like to continue working), the contract does not terminate.
