In what cases they do not work out 2. Working out upon dismissal
Many working citizens are concerned about the rather urgent question of whether it is necessary to work out 2 weeks upon dismissal. After all, it is often required by law. But not everyone knows that 2-week work is not always required. In some cases, this period is much shorter, and sometimes it is not required at all.
What are the circumstances that compel
As the Labor Code indicates, a person who wants to quit of his own free will must work for a set period, namely 14 days, so that the manager has the opportunity to find a new employee during this time. To do this, he will need to write an application for his own resignation and submit it to the employer for familiarization no later than two weeks in advance. However, if the director does not need this person for work, he may allow to leave work without it.
Working off is not mandatory if it is not required by the management.
14 days is the minimum set period, it can be a month or less at the initiative of the director of the organization or according to relevant circumstances.
For these groups of people, the duration of working out is three days:
- workers on probation;
- persons working seasonally;
- citizens with a limited time employment contract.
In the event that an employee, while on paid leave or on sick leave, expresses a desire to leave the place of work, working off will already be credited to him. Only he must notify the authorities about this no longer than 2 weeks before the end of the vacation.
Also, working off may be optional if the employee and his director mutually agree on the dismissal and draw up a written agreement. It should indicate the date of departure from the place of work, and the process of working out in this case is excluded.
If a working citizen, wanting to cancel the employment contract of his own free will, does not want to work out the established period, then he is obliged to apply with this request to the manager. Only on the basis of a written statement (resolution) signed by the authorities, it is possible to legally exclude working off. If you do not work out what will be spelled out in Article 80 of the Labor Code of Russia. Paragraph 3 of the commentary to the article says that refusal to work off is considered a violation of work order and may lead to dismissal for absenteeism.
When an employee has the right not to work
A two-week working off may be ignored by an employee if:
- the head has violated any of the points of the current legislation and there is documented evidence of this;
- the worker is forced to leave the place of work due to the circumstances.
The current legislation of 2017 refers to the circumstances forcing to quit:
- State care due to old age. A pensioner is not required by law to work out a 14-day period after dismissal;
- Enrollment in an educational institution;
- Call for military service in the ranks of the state army;
- If there is a child who has not reached maturity;
- Pregnancy, when a woman cannot continue to work due to her condition;
- Moving, even if it is under the pretext of changing the place of residence of the spouse.
If the question arises whether I have the right to quit without working for two weeks, the answer will be in the affirmative if you belong to the above categories of citizens. In such cases, you can not go to work, starting from the next to after the transfer of the application. However, the employee will need to provide evidence in the form of official documents. This may be a certificate from an educational institution, documents for a pension, a birth certificate of a child proving his young age, a medical certificate, and the like.
If a person does not belong to these categories, but still does not want to work, he can agree on this with his superiors or apply for leave during vacation time. Leaving work by mutual agreement of both parties does not require working off and provides the opportunity to leave at any desired time.
When leaving the place of work, regardless of whether there was a working off or not, the employer must on the day of leaving:
- Give the employee a salary for the worked period;
- Pay for vacation if it has not yet been taken;
- Provide compensation, if it is regulated by the contract.
As a general rule, in accordance with part one of the Labor Code of the Russian Federation, an employee has the right to terminate the employment contract at any time on his own initiative by notifying the employer in writing no later than two weeks in advance, unless another period is established by the Russian Federation or other federal law. The specified period begins the next day after the employer receives the employee's application for dismissal.
Before the expiration of the termination notice, the employment contract may be terminated by agreement between the employee and the employer (Part Two of the Labor Code of the Russian Federation). In this case, only the consent of the employer is sufficient to terminate the employment contract on the day specified by the employee.
Also, labor legislation defines cases when the employer is obliged to dismiss within the period specified in the employee's application, regardless of the period for notifying the employer of the termination of the employment contract.
Thus, the employer is obliged to terminate the employment contract within the period specified in the employee's application, when the employee's application for dismissal on his own initiative (at his own request) is due to the impossibility of continuing his work.
In other words, the obligation of the employer to terminate the employment contract within the period specified in the employee's application occurs if there are certain objective reasons that make it impossible for the employee to continue working. This was also confirmed by the Supreme Court of the Russian Federation in dated 16.11.2006 N GKPI06-1188.
The Labor Code of the Russian Federation, as an example, cites only two circumstances for the dismissal of an employee due to the inability to continue working, noting that others are possible.
In this regard, we note that in paragraph 7.2 of the clarification of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions of October 25, 1983 N 8 / 22-31 "On Some Issues Related to the Application of Legislation on Strengthening Labor Discipline", along with cases of enrollment in an educational institution, access to retirement, as a valid reason for which it is impossible to continue work, moving to another locality is named. The Plenum of the Supreme Court of the Russian Federation also refers to valid reasons for dismissal the inability to continue working due to the direction of the husband, wife to work abroad, to a new place of service (paragraph 22 of the resolution of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Russian Federation" ( hereinafter - Resolution N 2)).
Thus, the impossibility of further work of an employee must be determined in each case, taking into account the specific circumstances.
In addition, the employer is obliged to terminate the employment contract within the period specified in the employee's application in cases of established violation by the employer of labor legislation and other regulatory legal acts containing labor law norms, local regulations, terms of the collective agreement, agreement or labor contract. These violations can be established, in particular, by the bodies exercising state supervision and control over compliance with labor legislation, trade unions, labor dispute commissions, the court (paragraph 22 of Resolution No. 2).
In other cases, the employee, within two weeks after submitting the application, is not released from the performance of his labor duties. Evasion of their execution may lead to the dismissal of the employee for absenteeism (paragraph 39 of Decree N 2, Lipetsk Regional Court of 08/11/2008 N 33-1446 / 2008, Moscow City Court of 06/24/2010 N 33-16033).
Prepared answer:
Legal Consulting Service Expert GARANT
Naumchik Ivan
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Voronova Elena
The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.
When moving from one place of work to another, you find yourself between two fires: on the one hand, few employers are ready to wait for a hiring employee for 2 weeks, on the other hand, the former boss is not eager to let the employee “free” on the same day he wrote the application about dismissal. We'll talk about how to quit without working off.
What is working out
First of all, it is necessary to understand what this "working off" is. There is no such concept in the current labor legislation. The "people's" concept of working off in the Labor Code is formulated as "warning the employer about dismissal no later than 2 weeks in advance." This issue is discussed in detail in Article 80 of the Labor Code of the Russian Federation. It is important that the countdown of this period begins the next day after submitting an application.
The easiest way to quit of your own free will without working off, which is described in the Labor Code, is not to be present at the workplace legally. It could be vacation or sick leave.
Legal ways not to work for two weeks
Vacation
Taking leave during work From the point of view of common sense, it should be formatted like this:
- It is important to make sure you have unused annual leave days.
- You write an application for a vacation, and then, having received a resolution, write a letter of resignation of your own free will.
- You go on vacation with peace of mind: after 14 days you can pick up your work book, vacation pay and due payments upon dismissal. At the same time, in fact, you will not be at the workplace even a day after writing a letter of resignation.
This option may seem a little sly, but in fact the regulations are sustained: the boss mentally prepared for the fact that you will not be at the workplace for 2 weeks, signing a vacation application. At the same time, he was warned of the need to look for a replacement.
If you go in a crystal-clear way and warn in advance about the dismissal, and then express a desire to go on vacation instead of a two-week work, then the manager may remember the vacation schedule, that you have a vacation in May, and not in November, and refuse. In fact, this honest way can be equated with the "agreement of the parties", which we will talk about later.
Sick leave
The situation is similar with illness during the working off period: the days of warning are counted in the same way, from the moment the letter of resignation is written and submitted to the authorities, and this period is not extended for the days when the employee was sick. An important note: while on sick leave, an employee can quit of his own free will, but it is impossible to dismiss at the initiative of the employer during the illness of the employee.
Who can not work for two weeks
There are also several categories of workers who have the right to quit without working for two weeks. The Labor Code calls:
- applicants who were enrolled in an educational institution;
- pensioners (it does not matter whether it is retirement upon reaching retirement age or an employee who is already retired has decided to leave of his own free will - the consent of the employer to the absence of work is not required).
Article 80 of the Labor Code of the Russian Federation also points to other possible reasons for dismissal without working off. By law, they include:
- conscription into the army;
- caring for a disabled child or a minor child under 14 years of age;
- Moving to another city;
- appointment to a competitive position;
- pregnancy and severe illness.
These points are not directly stipulated by the Labor Code, however, if in these cases the employer persists and forces you to work for two weeks, you can go to court, and the case will be doomed to success, which is confirmed by numerous judicial practices.
Of course, when you are dealing with a bureaucratic machine, all these reasons for dismissal without working off must be documented. Having written a statement of your own free will, attach to it a copy of a document confirming your special circumstances - an order for admission to a university, a summons to the army, an order for an urgent transfer of a husband or wife to another region for work, etc. - and with a large share the likelihood that the employer will not dare to refuse you.
What is an "agreement of the parties"
It is unlikely that anyone likes to sue, so there is another way to avoid working off. But it is designed only for a loyal and understanding boss: this is the so-called "agreement of the parties." That is, just humanly ask not to work for two weeks.
I must say that middle managers are afraid to fire an employee so easily with all due respect to the subordinate and the desire to help him. This is due to the fear that top management may decide that since parting with a staff unit is so easy, then it is not needed, it can be removed from the staff list, and the load can be redistributed among employees. Since organizations now do their best to optimize costs, including personnel costs, this is a common practice. And yet, you need to know that there is such an option to leave without working off - at least theoretically, according to the law.
Reasons for dismissal without work due to the fault of the employer
In the event that the employee has already been notified in writing about the upcoming reduction of his staff unit or about the liquidation of the entire enterprise 2 months in advance, he can quit earlier - without working off and with the preservation of all compensation payments due to him.
Another reason stipulated by the Labor Code for dismissal without working off is violation of the law or the terms of the contract by the employer. These may include:
- do not pay salaries on time;
- illegal fines;
- non-observance of working conditions and rest at the workplace.
Here it is correct not to leave on your own decision before the fact of violation is recorded. Otherwise, you can pay dearly: the dismissal will not happen of your own free will, but for absenteeism. Here is the procedure:
- A violation occurs.
- The violation was recorded by the labor inspectorate, the court, the trade union.
- The letter of resignation of his own free will was written and handed over to the management. The application should separately write that the employee stops working in this company from such and such a date due to the fact that a violation by the employer of labor legislation was established (ideally, you also need to refer to an act that confirms what was written).
Moreover, the law does not specify that the working conditions or contracts should be violated specifically in relation to the employee. Even if the enterprise delays the payment of salaries to another department, formally this can be a reason for refusing to work. Another thing is that the establishment of a violation by an instance - for example, a court - most often takes at least 30 days, and it can be faster to quit in a general manner. But it is also worth knowing about such an opportunity to get away from working out.
Who is entitled to a reduced three-day working off
Working off will be significantly reduced and will be only three days if the employee is hired under a fixed-term employment contract (including for seasonal work), or is on probation and has decided that this job is not suitable for him.
When leaving, it is worth arming yourself with knowledge about your own rights in advance. Parting with a former employer in an amicable way, while respecting your interests and rights, is a whole art. And no matter how great the desire to leave, slamming the door, the most correct decision is to still try to maintain friendly relations with the former team.
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Why you need to work 2 weeks
Attention! I must say, the phrase "working for two weeks" is not entirely correct. Labor legislation does not indicate the existence of working off as such, the Labor Code of the Russian Federation specifically refers to the need for advance warning by an employee of the authorities about the intention to leave work.
When a person independently decided to quit, then the warning should take place 14 days before the scheduled date of dismissal.
This extends to the standard schema. But it happens that the employer himself violates the employment agreement. If you have no idea how to formalize your dismissal without working for positions, you can not look for any violations in the actions of the organization.
There are other reasons for leaving without having to stay at the workplace, as an option, you can try to negotiate with management.
Sometimes it happens that an employee first submits an application to his superiors, and only then goes on sick leave, lasting from two weeks. Under such circumstances, processing is also not needed.
The duty of the employee is to notify the authorities of the organization of the intention of his departure 14 days in advance. Being at the workplace during this period is not important, because the main condition is met.
The law provides for a two-week period quite reasonably - this rule respects the interests of both the dismissed employee and the employer:
- so the employer will have enough time to find a worthy replacement for the place of the former employee without standing idle at the workplace. For this, only 14 days are allotted. The beginning of the countdown is the day after the day when the application from the employee about his desire to quit was submitted to the organization;
- the employee uses this time to make sure that his intention to leave his position remains unchanged. If he changes his mind, he has a legal opportunity to prevent the execution of the dismissal and continue to work in his workplace and position.
When management violates the labor agreement concluded with its employee, it becomes necessary to prove this fact, which takes time. First, you will need to draw up and send a complaint against the violator to the competent authorities.
Such issues can be handled by: the trade union, the commission on labor disputes, the judiciary. Only after the receipt of the appeal, an investigation into the fact of the violation is initiated.
Please note! It is certainly impossible to predict whether the authority considering the appeal recognizes the fact of a violation. Non-payment or delay in the payment of wages is not considered as the reasons indicated in the Labor Code. For this reason, the result cannot be guessed.
When the judicial authority records the fact of a violation, but the organization's management flatly refused to correct the situation and issue a dismissal on a certain day, the culprit is threatened with penalties. Not in every case the period will be two weeks.
The law also contains the conditions when it is allowed to warn an employee about the expected date of dismissal and 3 days in advance:
- If the employee works on a probationary basis;
- With seasonal employment;
- When the term of employment under the terms of the contract is less than 2 months;
- In some cases, the warning period must be at least a month - when the coaches or employees of the organization's management are dismissed.
When an employee has the right not to work
In some cases, an employee can do without working off, but they are still conditional. For example, facts such as retirement or moving are known in advance. In such circumstances, the employee has the time and opportunity to communicate his decision in advance.
The employer, after notification of the employee's departure, will have time to take measures to find a specialist for a vacant position, prepare all the necessary documentation and carry out the calculation.
Important! The list of official reasons for leaving work without having to work for two weeks includes:
- An employee's retirement. It does not matter whether the pensioner will leave on the day of retirement or the person is already working on retirement and decides to leave - he has every right not to take into account the period of working out;
- The employee plans to move for permanent residence to another locality or country;
- The employee is forced to move due to the transfer of the husband (wife) for work reasons to another locality or country;
- The employer clearly violates the conditions prescribed by the employment agreement;
- The employee was enrolled in an educational institution.
In case of violation by the head of the established contractual conditions, one should not chop off the shoulder and immediately leave. Such actions until the existence of a violation is confirmed will lead to unpleasant consequences.
If an employee is absent from the workplace during the last two weeks, his absence will be regarded as absenteeism. Consequently, the employer will have a legal opportunity to dismiss the employee not at his will, but under the relevant article.
In practice, there are other good reasons that can be regarded as valid. But since they are not indicated in labor legislation, the decision directly depends on the employer and the authorized body.
What additional reasons are:
- When an employee is ill and, as a result, an obstacle is created to go to work to continue working;
- When choosing a vacant position, which is filled on a competitive basis;
- When conscripted to serve in the army;
- If it is necessary to care for a child (until he is 14 years old) or a disabled child (until he is 18 years old);
- When appropriate care is needed for other family members;
- If you are pregnant and have a desire to leave work;
- When the organization where the person is employed is liquidated in the manner prescribed by law;
- When a person is dismissed due to a reduction in the number of staff (positions).
Can I go on vacation before leaving?
No matter how the circumstances develop, the law requires the employee to notify his employer of such a desire until the moment of his departure.
Working off in the best case can be avoided with the help of vacation. Everyone can go on vacation if a person has not yet used such a right in the current year.
Please note! The duration of the vacation should not be less than 2 weeks. In the standard case, the duration of the vacation will be 28 days. As for teachers - from 42 to 56 days.
We return to our question. Write a letter to your boss. Indicate in it that from the moment the vacation period ends, you want to quit.
Since the application for time off leave is submitted 1 month in advance, it turns out that the employee notifies his employer even earlier than the standard deadline.
The advantage of this method is that the last day of your vacation will be the day you officially quit your job.
In addition, a person receives vacation pay due to him by law. During this period, in addition, you can manage to find another job.
In the event that a dismissed employee does not want to go on vacation before dismissal, even if he has the right to do so, he can be compensated for unused vacation days in monetary terms.
However, there are cases when compensation is not possible, and the employee is required to go on vacation - this applies to minors and pregnant women. Compensation will only be possible if such employees decide to leave.
When an employee has not gone on vacation for two consecutive years, he has the right to receive compensation for the entire period, or go on one vacation, and choose compensation for the second. It is impossible only to use two such holidays at once.
When a person falls ill during the period of vacation and receives a sick leave, the vacation period will be extended exactly for those days during which the employee was sick and was on sick leave.
It is also possible to arrange unpaid unscheduled leave, but this will require good reasons. If there are no such grounds, the boss is unlikely to approve such a decision.
The right to receive such leave is assigned to the following categories of employees:
- Disabled people;
- Veterans of the Great Patriotic War who continue to work officially in retirement;
- Parents or spouses of the military or persons who died during the period of military service;
- When a vacation is required due to the birth of a baby in the family, when a wedding is planned, or a close relative has died.
Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues.
Dismissal one day without working off
For dismissal, first of all, the employee needs to draw up a separate application addressed to his manager. A similar procedure applies when an employee chooses a method of dismissal without working off.
In the latter case, when drawing up a statement, it is necessary to indicate the following phrase: “I ask you to dismiss me without working off a two-week period in connection with ...”.
In some circumstances, the employee is also required to provide evidence of the impossibility of working out the prescribed two-week period.
For example, if such a legislative requirement cannot be met due to the employee's further relocation to permanent residence. In this case, documents confirming the extract of a citizen can serve as evidence.
Dismissal on the same day is also possible if the employee himself comes to an appropriate agreement with his superiors or if there are reasons listed in the lists.
The employee draws up an application and then on the same day it is calculated and a work book is issued. All these actions can be done during the day.
In addition to the circumstances indicated above, the collective agreement, the terms of which apply to labor relations with an employee, may also indicate other circumstances, the presence of which will be a sufficient reason to formalize the dismissal of a person within one day.
When the employer, under certain circumstances, still refuses to formalize the dismissal of the employee during the day, considering such actions unreasonable, the employee has the right to file a complaint with the Labor Inspectorate or apply to the judicial authorities for protection.
Watch the video. Dismissal without working off:
Features of the dismissal of employees of IP
Labor legislation regulates legal relations between individual entrepreneurs and employees by analogy with standard cases.
Important! In the legal sense, individual entrepreneurs are the same participants in civil law relations as other employers: enterprises, organizations, companies, etc. The list of their rights and obligations is the same as that of any other employer.
The basis of the legal interaction of individual entrepreneurs with employees is a contract. The text of the agreement may also include individual grounds that serve as a reason for the dismissal of an employee. Article 307 of the Civil Code of the Russian Federation provides a similar legal opportunity.
For example, one of the grounds that can be fixed in such contracts is the achievement by an employee of the age of retirement or another event during the period of performance of his labor duties.
When hiring an employee, they are familiarized with the clause of the agreement, which means that he recognizes it as legal and agrees, upon the occurrence of certain circumstances, to follow contractual obligations and fulfill them.
The term of notice of the fact of dismissal may also be provided for by the terms of the agreement. If there is no such clause in the document, the individual entrepreneur is obliged to take into account the current provisions of the Labor Code of the Russian Federation.
In this case, the employee does the same - wanting to quit, he notifies the authorities of his decision in advance, two weeks in advance.
Attention! In some cases (seasonal work), the contract is valid for no more than 2 months, the employee has the right to expect dismissal in three days from the date of execution and transfer of the application to the employer.
In the matter of dismissal at will, the parties (employer and employee) have a wide choice of interactions. It provides for many points, which are mostly justified in labor legislation.
The same points, which are not directly indicated in the law, are resolved in judicial practice. This is another source where you can find legal clarifications and resolve disputes.
At the beginning of legal interaction in the field of labor relations, each party must be prudent and know the norms of laws. Only in this way will employees exclude material losses, and employers will be able to avoid imposing sanctions (fines) on them.
On probation
In accordance with the norms of labor legislation - Article 71 of the Code, each of the parties has the right to terminate the employment agreement signed between them at their own request, during the period when the employee is being tested for compliance with the position.
The employer has the opportunity to do this if the results obtained during the activities of the employee do not suit him in any way, and the latter can initiate dismissal, realizing that the position he is applying for does not suit him.
Remember! Whoever initiated such a dismissal, a notice of dismissal should be prepared in advance - three days in advance (employee, employer) informs the other party of his decision in writing.
Three days, which, after the notice of dismissal, the employee is obliged to work in a temporarily occupied position, are necessary for the employer to find a replacement for the place of the dismissed person.
In this case, we can speak of an exception. If there is an agreement between the parties (the employee and his employer), the dismissal can be carried out in one day - then working off is not needed.
An agreement is required here. Usually it is drawn up as a separate agreement to a previously concluded labor agreement with a designation that there are no claims from each of the parties.
When a new employee is hired after that, even with a mandatory probationary period, it is necessary to conclude a new labor agreement. Making any changes to the executed contract requires mutual consent of the parties. The consent itself is usually made in writing with the signature of the party.
Attention! In such an agreement, which serves as an addition to the contract, the parties without fail provide:
- the date when the document was drawn up, with a reference to the employment contract to which the agreement will be attached (its number is indicated);
- full information about the employee (his full name), position held in the organization;
- the official name of the employing organization;
- in connection with which an agreement is drawn up. In this case, indicate: “in connection with the consent of the parties to the dismissal of the employee without mandatory working off”;
- each party must sign the drafted document and decipher its signature.
Upon reaching an agreement between the parties and fixing it in writing, the employee has the right not to go to work the very next day.
Previously, the interested person draws up an application, reflecting his desire to quit at his own request. The employer signs it.
On the day the application is submitted, the employer draws up an order according to which they approve the dismissal of the employee from the position. The order is signed by the head of the organization.
Please note! Within 10 days from the moment the employee officially leaves, his former employer provides him with the following payments:
- salary for the entire period actually worked in the organization;
- the amount of compensation for due leave in the calculation of real working days;
- if it is provided for by the collective agreement (local act) in force in the organization - the amount of the severance pay;
- separately retiring give out his work book.
Even when the dismissal was initiated by the employer in connection with the receipt of negative results during the period of the employee's verification, the parties have the right to agree on the execution of the dismissal without the need for working off.
Usually the employer is interested in such a design - this eliminates the bureaucratic component. Dismissal according to the rules is a rather laborious procedure.
If the employee has not passed the probationary period, the procedure for his dismissal for this reason seems difficult.
How the working period is calculated
The general rule says that the start of working off is not the moment the application is drawn up, but the date when the organization's management got acquainted with it.
You can talk about the difference in terms when a person transfers a document through postal services or by means of a telegram.
In order to avoid disputes and conflict situations, two copies of the application should be prepared. One document is submitted to the "personnel" of the organization, with the obligatory registration in the organization.
The employee keeps another copy with him - the manager puts his signature on it. This indicates that the authorities are familiar with the document.
Weekends (holidays), the period of vacation and time off, issued sick leave cannot be deducted from the specified period.
Important! The day when a specialist must be fired does not relieve him of the obligation to perform his job duties. In addition to the fact that he must continue to do his job on the specified day, he must also read the dismissal order, signing it, receive a full calculation and documents from the personnel department.
Letter of resignation without work
For dismissal, an employee must draw up only an appropriate application. When it is necessary for the dismissal to take place without working off, this fact must be reflected in the structure of the application.
An application drawn up by an employee for dismissal without working off must necessarily contain the following data:
- the position in which the person authorized to accept the application is located - his initials and surname are indicated;
- the full name of the employer where the employee is sending the application;
- data on the interested person (employee), the position in which he is located. If the organization has a complex structure, its corresponding subdivision is indicated;
- then the text part of the application is written. An employee who wants to quit indicates the following information here:
- a request to formalize his dismissal on a specific date. For example: “I ask you to fire me on August 15, 2018.” In this case, the last day when the employee will perform his labor duties is August 14, 2018;
- specifically a request for dismissal without working out in the organization;
- what are the reasons for such a method of dismissal;
- a list of documentation that the employee attaches to the written application in order to confirm the existence of grounds for an accelerated method of dismissal;
- when the dismissal procedure without the need for working off is carried out by agreement of the parties, it would not be superfluous to indicate the details of such an agreement reached;
- After the employee presents the main part of the document, he indicates the date when the application was drawn up. Then a signature is affixed with its mandatory decoding.
It is preferable that the letterhead of the employer is used to draw up the document. If the organization does not have an established sample, the application is written on a standard office sheet.
Special circumstances
It should not be forgotten that the law also provides for a number of other special circumstances when an employee has the right to quit, while not working after writing a statement for a single day.
In the list of such circumstances, the legislation regulating labor relations includes the following:
- An agreement between the parties. In a separate article 77 of the Labor Code, it is indicated that if the parties come to a general agreement and conclude an agreement in writing, then the employee has a real opportunity to leave work without working out the standard term;
- Employees enrolled in educational institutions (universities) need to start training. Typically, such a dismissal occurs shortly before the start of the training period - before September 1st. Information about the enrollment of an employee in an educational institution comes, of course, long before the specified date. Therefore, the employee has the opportunity to choose another way of dismissal - a couple of weeks before September. If the person concerned needs to break off the current employment relationship with the employer immediately before the start of the educational process, he should bring a certificate that certifies the fact of his enrollment in an educational institution;
- The employee, due to reaching the retirement age, no longer wants to continue working in the organization in the future. The mere fact of the possibility of retirement is not an obligatory reason for the termination of labor relations. An employee can write an application both from the moment the right to retire arises, and at another time - at his request;
- The emergence of a conflict situation with the employer in connection with the violation of labor standards in relation to the employee. There must be relevant evidence;
- Excess of authority by the head of the organization with direct influence on the employee. It is not uncommon that the bosses forget about professional business ethics and insult their employees in various situations (alone in the office or in the presence of colleagues). Often such insults are accompanied by obscene statements. For an employee, this is a sufficient reason to leave;
- The organization violated the deadline for the issuance of salaries (benefits). The latter include: vacation pay, severance pay, payments due when going on sick leave, on maternity leave, on vacation, etc .;
- The employee was not provided with proper conditions for the proper performance of his labor duties. The workplace lacks the necessary pieces of furniture, office equipment, etc., in connection with which the employee is not able to properly perform his functional duties.
These are just some of the most common reasons for employees to leave without two weeks' work.
However, practice shows that there are many other reasons for terminating legal relations between the parties without the use of a two-week working off.
Remember! Such circumstances include:
- Personal and family character. This type of circumstance should be documented, but this is often a problem. If, nevertheless, the circumstances are real and there is an urgent need to quickly leave work, you can always try to negotiate with your superiors - the agreement is sealed by an agreement;
- One of the spouses or both move to work in another region of the Russian Federation. For example, a spouse was sent on a long business trip, which requires the forced relocation of his family to live in another region. Although the reason is valid, the organization often requires confirmation of the occurrence of such conditions of dismissal;
- A sharp deterioration in the health of an employee, in which honey. restrictions, he lost the opportunity to properly perform his functional duties. The law considers such reasons to be quite weighty. However, if the employee does not have relevant medical evidence confirming the case. documents, there will be no accelerated dismissal;
- The presence of children in the family (up to 14 years of age);
- The employee has a large family, provided that he cares for and maintains three or more children under the age of 16. If children study at universities, until the end of their studies;
- There was an urgent need to take care of a child with a disability or another relative (with the 1st group of disability). This case is also certified by the relevant honey. documents;
- An employee is pregnant. Outward signs of pregnancy are not sufficient evidence in and of themselves. Therefore, the employer should present from honey. institutions where the employee is observed, a certificate of her position. The certificate is signed by the head physician, the attending physician or the head. female consultation. The document bears the seal of the medical institution.
Trial or trial
It is also possible that a situation will arise in which the employee has all sufficient reasons to leave work without completing the deadline, but the employer does not agree to comply with the requirements of the law.
What to do under such circumstances?
If an employee has no desire to "swim against the current", spending his time and nerves defending his interests, he can simply fulfill the requirements of his superiors, albeit contrary to the norms of the law.
When the case really requires restoring justice and proving the correctness of one's position, the only way out is to defend the legitimacy of one's claims. The issue can only be resolved in court.
But this method, despite the observance of the procedure, is time-consuming - the consideration of the case in court will drag on for a couple of months.
This will not bring convenience to either one or the other side. It is for this reason that it will not be superfluous to start looking for other options for an amicable settlement of the conflict.
What can an employee do?
You can offer another person to take your place, whose training and experience allow you to take the vacant position. At the same time, it should be noted that such a person is ready to start working on the day the dismissal is issued.
If such a method of substitution suits the employer, he can make concessions to the resigning person, allowing him to leave without working out the legal term.
Please note! Only when none of the options is suitable, and the employer does not make concessions, you can sue him.
In order to protect their rights, as well as legitimate interests, the employee seeks help from the judicial authorities, filing a claim for violation of labor laws.
An application should be sent in compliance with the statutory limitation periods for filing claims:
- month on disputes about the reinstatement of an employee in a previously held position. The term begins only from the moment when the employee got acquainted with the order of his dismissal, or the date when he received the work book in his hands;
- three months for other categories of labor law violation disputes.
If there are sufficiently compelling grounds that prevented the person concerned from applying to the court in a timely manner, he may try to initiate an extension of the statute of limitations. When the court considers such reasons to be insignificant, they will simply refuse to consider the claim.
Attention! A claim sent to the judicial authorities for violations in the organization must necessarily contain the following data:
- the name of the court where the claim will be sent and the issue will be considered. In a particular case, you should choose an instance at the place where the defendant in the case is located. If the application is erroneously sent with attachments at the applicant's place of residence, in court, most likely, the entire package of documents will be redirected to another court. In doing so, the applicant will lose valuable time;
- about the applicant (or the plaintiff) who has drawn up a statement of claim to the court. Indicate your full name, your passport details, your date of birth, place of registration and actual address;
- information about the defendant in the case, which the plaintiff has. That is, you should indicate the full name of the employer, TIN, his address (actual / legal);
- the text part of the claim being drawn up - this part is the main one, since it contains a statement of the circumstances of the violation and the legal justifications for the applicant's rightness. Pay attention to this part. State the situation chronologically and clearly. Also state what requirements you make in connection with the violation. They should be fully disclosed and carry one semantic load. It should be understood that the court considers only those requirements that the applicant has identified in the claim. The introduction of additional requirements will entail difficulties, perhaps even their deviation;
- calculations of all recoverable amounts. This moment must be taken into account. The plaintiff is required to state exactly what payments are due to him (with their detailed calculation);
- at the end of the document, the applicant must put his signature and the current date of compilation.
ATTENTION! Look at the completed sample of the statement of claim against the employer for the reclamation of a work book, other documents and salary in case of refusal to dismiss:
The claim is accompanied by a separate package of documents (annexes), which serve as evidence base and substantiation of the circumstances set forth by the plaintiff in the application.
Here is an example of some of the documents attached to the drafted statement of claim:
- A copy of the order of the superiors on the dismissal of the employee;
- A copy of the employment contract signed between the parties plus agreements to it, if any;
- Copies of materials on the internal investigation of the violation in the organization (the employee can receive them from the employer at the first request);
- Copies made from pay slips;
- Copies made from payroll records;
- An extract on a salary bank card on the fact of receipt of funds;
- Copies made from the organization's local regulations, for example, the Labor Regulations adopted by the organization, the Regulations on Remuneration, and other documents relating to the disputed issue.
Important! Documents should not be taken as a basis if their copies cannot be attached later as confirmation or if the data indicated by the applicant in the application do not match those in the documents.
How is the jurisdiction of a dispute determined?
Article 28 of the Code of Civil Procedure of the Russian Federation clearly establishes that a statement of claim for unlawful actions of the employer is sent to the court in the place where he is registered.
Controversial issues that arise in the process of labor relations between the employee and the employer are resolved in the courts of general jurisdiction.
That is, if the rights of the worker have been violated, he must send a statement, addressing it to the district authority in the place where the violating organization is located, to which claims are made in court.
Many employees, having written a notice of dismissal of their own free will, are in a hurry to leave their former place of work as quickly as possible, without working off. This is often due to the fact that they already have a new job and they are expected there. What is processing? Labor law does not define this term, it is usually used by employees when communicating with each other.
The current legislation clearly establishes that the employee is obliged to notify the employer of dismissal in writing no earlier than fourteen days. It is believed that such a period is necessary so that the resigning person can transfer all his affairs, and the employer finds a replacement.
During this period, the employee is obliged to continue to do his job, because otherwise he may be dismissed for absenteeism under Art. 81 of the Labor Code of the Russian Federation (an act of absence from the workplace must first be drawn up).
Nevertheless, there are situations when the working period can be either more than 2 weeks, or less.
Working time 3 days
In some cases, the law establishes a simplified procedure for terminating an employment contract. The term is also reduced:
- The employee has just started work and is on . He can quit of his own free will without waiting for the end of the test - for this you need to write a standard application. Workout upon dismissal during the probationary period is 3 days. In addition, the company can also initiate dismissal during a trial period - then it warns about this 7 days in advance.
- Contracted with an employee to perform seasonal work. Such an agreement is usually automatically terminated at the end of the work. However, if the employee wanted to terminate it ahead of schedule on his own initiative, then you need to notify about this only 3 days in advance.
- The employee has a fixed-term employment contract for a period of not more than 2 months to perform any temporary work. If there is a desire to quit earlier, then you will also have to work for 3 days.
Working time 14 days
The standard turnaround time is two weeks. It is during this period that you need to warn the management of the company by writing a letter of resignation.
The positive point in this case is that if the employee changes his mind during this time, he can withdraw his application. For example, those who are dismissed by agreement of the parties or take a vacation with further dismissal are deprived of such a right. However, it is no longer possible to withdraw the application if another employee has already been hired to replace the person leaving.
Nevertheless, the actual date of dismissal is set by the head - and if it is possible to agree with him, then it will be possible to quit earlier.
Important! You can also apply while on vacation or on sick leave - the current law does not prohibit doing this. The deadline does not change.
Working time 1 month
If an employee worked in senior positions - as a director, deputy or chief accountant, then the law provides for a working period of thirty days for such a case. At the same time, the director, if he is not the sole owner of the company, must still convene a general meeting of founders during this period.
Read also:
Dismissal for being late for work: is it permissible and in what case, what to do so that they are not fired
The same period of working out is provided for people employed in the field of sports - athletes or coaches with whom a contract has been signed for a period of more than four months. As a result, if it is necessary to terminate the agreement ahead of schedule, they will need to work at the current place for another month.
A situation may also arise when the employer-entrepreneur is absent for a long time, and there is no information about him. Then his employee can terminate the signed employment contract in the local municipality, which will carry out this procedure within a month.
Dismissal of one's own free will
All employees who leave on their own initiative try to quickly end their relationship with their previous employer and start a new job. Many of them do not know whether it is possible to quit without working off. But the Labor Code of the Russian Federation provides for cases and certain categories of citizens when dismissal of their own free will without working off is guaranteed for them by the state.
These include:
- All employees whose administration of their employer does not comply with, and sometimes violates, the conditions stipulated by the concluded labor contracts and collective agreements.
- Employees who reach the statutory retirement age. However, this refers only to those workers who are just retiring. If he again concludes an employment agreement, there will be no such opportunity for him as to quit without working off.
- If an employee of an economic entity quits and enters an educational institution. In this case, the employee must know how to quit without working for 2 weeks. After all, one completed application is not enough, it is necessary to attach more supporting documents, which may be an order for enrollment or a certificate from the place of study.
- An employee has the right to quit without working off if his husband or wife is transferred to work in another city or state. Along with the application, the relevant transfer order or a document with a call must be submitted to the personnel department.
The internal regulations of the enterprise itself may provide for other situations in which the day the application is written coincides with the day of dismissal itself.
Pay attention! However, some employees know how to quit their job without working off. To do this, they can, upon notification of the employer, issue a sick leave. This is due to the fact that the period of two weeks does not increase with the onset of the disease. The employee is dismissed at the time indicated by him, or the last day on the sick leave.
At the same time, they must take into account that if the company's management can prove the invalidity of the submitted document, they can be fired under the article for violating the company's rules of procedure, or even worse, they can be held accountable in accordance with the Criminal Code of the Russian Federation.
The most legal, sometimes not the easiest way for an employee to leave enterprises without working off, nevertheless, in an amicable way, will agree with his employer.
Dismissal without working off at the initiative of the employer
This type of termination of the contract between the employee and his employer is not provided for by law. Speaking about this, one must first of all keep in mind the situation when the administration of the enterprise offers the employee either to quit of his own free will, or to be dismissed in accordance with the current Labor Code of the Russian Federation for non-compliance with labor discipline. This situation can have positive aspects for all participants in labor relations. The company, without the need to prove and draw up a large number of forms, gets rid of an employee it does not need, and he, in turn, gets a chance to quit in a good way.