Departure from work "on their own" - the most common cause of dismissal. There are two interesting points here:
- Very often there are situations when an employee is simply forced to write a statement of his own will, in order not to have any legal proceedings in the future.
- Cases of “improper dismissal” are common.
The first item will be discussed in more detail later. As for the second, the main reason lies in the incorrect application of some norms of the Labor Code.
"Correct" article
Despite the basic basic principlesregulations, namely, “absolute clarity in the wording,” very often there is a misunderstanding. What is the article for dismissal? P. 3 of Art. 77 or art. 80 TK RF?
But in fact, there is no problem with understanding. One is considered procedural (as legally correct to change jobs), and clause 3 of Art. 77 of the Labor Code of the RF - normative, i.e. indicates the fact.
Almost everyone knows that you need to work 2 weeks before leaving the organization. Immediately explain one very important nuance.
Dismissal (clause 3 of article 77 of the Labor Code of the Russian Federation) does not provide for any work.
It is only necessary to warn the employer notlater than this date. Of course, during this period you will have to perform your functions in the enterprise. Hence the erroneous opinion. But we will clarify that the mandatory work of a fortnight is optional.
You can go on sick leave or vacation, warning about the future dismissal of the employer. In this case, there can be no testing.
Clause 3 Art. 77 of the Labor Code of the Russian Federation: employment record
The most common mistake is wrongrecord Very often, clerks incorrectly indicate the article in the workbook. After that, many former employees face a problem during a new job placement or when drawing up a pension. Clerks put the mark “dismissed under Art. 80 of the Labor Code of the Russian Federation ".
But the legislation does not providetermination of duties based on this article. It is important to see the order to terminate the contract. If it is based on the same article, then the employee is not legally dismissed, because The legal procedure is not followed.
Hence the problem for the former employee:he may not be taken to a new position. Be sure to contact the former organization for corrections. The document should be written: Section 3, Part 1 of Art. 77 of the Labor Code of the Russian Federation (termination of an employment contract initiated by an employee).
But let's move on to another common error.
P. 3 of Art. 77 of the Labor Code of the Russian Federation: entry into labor. Sample writing
Нередко делопроизводители и директоры face a similar problem. The article seems to be specified exactly, but the record is still invalid. The fact is that the wording is as follows: “P. 3 tbsp. 77, dismissal on their own. "
But according to the rules of filling the record must fully comply with the norms of the Labor Code of the Russian Federation.
Consequently, a sample of writing will look like this: “Fired under Section 3, Art. 77 of the Labor Code of the Russian Federation - termination of an employment contract initiated by an employee. ”
The record is radically modified, despite the fact that the main reason remains the same.
Consent of the parties: what is the difference?
There are situations when an employee is forcedwrite a letter of resignation on their own. The reasons, of course, are purely individual. The new director recruits staff, the employee has ceased to arrange, reorganization, often force pregnant women to this, etc. In the labor code there are two paragraphs 77 of the article, which ordinary citizens seem to be equivalent:
- By agreement.
- At their own request.
Many professional lawyers engaged inlabor disputes, they know that the termination of the contract in the second case can be challenged in court. It is enough to cite arguments and prove that the employee was subjected to psychological pressure from the administration of the enterprise. Consequently, in a court order, the termination order will be canceled, and the employee will be restored with all rights.
Clause 1 Art. 77 of the Labor Code of the Russian Federation does not provide 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 paidany "compensation" means to end the employment relationship peacefully and without consequences for both parties. In court, all arguments will be useless. To recover in labor rights is almost impossible.
How to quit right
To do this, you must notify the employer for2 weeks. If the relationship is trusting, then it can be done orally. But in the event of a conflict, it will be difficult to prove this later in court. Therefore, in order to avoid misunderstanding, you should write statements.
Sample writing
Special requirements and special legal education does not require. You can write the following in the name of the head: “In accordance with Art. 80 of the Labor Code of the Russian Federation, please dismiss me from my position. ”
Below - the number, signature. From the day the manager or other authorized official receives this application, the two-week period will begin.
Everyone should know this.
It is important to know two very important things:
- Regulatory acts when writing such a statement does not necessarily indicate.
- No one has the right to prohibit resigning on their own.
A fairly common practice is when a personI wanted to change the company for one reason or another, but they are beginning to put poles into the wheels: “there is no director in place”, “let me sign then”, etc. And after a while they are denied with the phrase “there is no one to work”, “I do not give consent to your dismissal”. Some are so dishonest that you can hear the answer "I have not seen your statement," and so on.
To avoid these or other problems, it is enough to act on one of two scenarios:
- Write a written statement and register it with the secretary or other authorized person.
- Send a registered letter.
The first option will be faster, becauseThe two-week period will begin the day after registration. The employer cannot then declare that he "did not see and did not know." The duty of the secretary or other authorized person to notify the authorities in the near term.
With the option of sending through the service "Mail of Russia"everything will be a little longer. The two-week period will begin from the next day when the employer received the letter, and not from the moment of dispatch. When the application has reached the addressee, it will be indicated in the notification, which means that the employee will know the exact date of receipt.
After that, the director will have to let go of the employee. Clause 3 Art. 77 of the Labor Code of the Russian Federation is obliged to do so.
If you change your mind - what to do?
Such cases are also not uncommon. The reasons are different: they did not agree at the 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 mustwrite and also officially register a new one. No matter how good the employee seems to be the relationship between him and the employers, it is important to know the main rule: the statement on refusal to dismiss is necessary to hand over officially, i.e. in writing through a secretary or by mail.
What is it for?
There are cases when the employer is not against such a dismissal. But he had no reason to do it himself. And then the employee himself brings such an application for dismissal under paragraph 3 of Art. 77 of the Labor Code of the Russian Federation.
Then, after some time, the employee declares that he changed his mind. The director, knowing the legislation, happily says on his face that “I understood everything, work further”.
Upon the expiration of a two-week period from the time of writing the application, an order for dismissal is issued in accordance with paragraph 3 of Article 77 of the Labor Code of the Russian Federation - at will.
In case of refusal of the application at own willThere is one very important nuance. If from the moment of filing the dismissal of the employee to his refusal to another person sent a letter of invitation to accept the position, then it will be impossible to cancel it.
Here the law will be on the side of the future employee, i.e. one who has already been invited. Since now no one has the right to deny him a job.
Therefore, it is necessary to weigh everything well before you write a letter of resignation. There are cases when there is no mob road.
Where to defend labor rights
If during the dismissal procedure or in any other case arising during the employment relationship your rights were violated, then you need to defend them in one of the following ways:
- Appeal to the labor rights protection inspectorate.
- The claim in court.
- Appeal to the prosecution authorities.
Citizen of the Russian Federation, whose rightsviolated, may apply simultaneously to all competent authorities. An administrative penalty is provided for the perpetrator. But the citizen himself does not have the right to initiate such a case through the court. This can be done only by the prosecutor’s office or by the labor inspectorate. To do this, you must send a complaint to these structures.
In parallel, the employee has the right to file a lawsuit inthe court for the purpose of obtaining compensation for moral harm or any other payment from the employer, if it is provided by law, since administrative sanctions do not provide for this. All fines issued by the prosecutor's office, will go to the state. Therefore, it is better to contact the regulatory authorities in order to bring the violator to justice and to the court for moral or other other payments.
Cases exempting from mining
There are reasons in the Labor Code thatallow an employee to leave before the deadline of 14 calendar days. Let us say right away that the report begins the day after the submission of the relevant notification.
These include:
- Employee training.
- Mutual agreement.
- Violation of labor rights.
- Other
The first two are more or less clear.As for the violation of labor rights, this is not the subjective opinion of the employee. This refers to the official prosecution of the employer. And it must necessarily concern the employee who decided to leave early.
When will the calculation?
После официального приказа все выплаты за time spent should be made on the day of dismissal. And this is not a "gift" from the company, it is an obligation according to the TC. Violation of this provision is a pretext to assert one’s rights and apply to the regulatory authorities. In addition to the salary, the employee is entitled to payment for unused vacation. You can calculate it yourself if you know the average monthly earnings and the exact number of days worked. Payments on it must also be made on the day of the order for dismissal.
Единственным исключением из этого правила It is considered payment of sick leave. Since the submission of the medical certificate, the accounting department makes a recalculation within 10 days and pays it on the salary day at the enterprises.
If the employee on the day of payment is not in place (business trip, vacation, sick leave), all payments must be made no later than one day after his appeal.
