To work it out or not: voluntary dismissal

Rights and obligations of an employee upon dismissal

The employee’s responsibility, in accordance with the Labor Code of the Russian Federation, is to notify the employer in writing two weeks before dismissal. But dismissal can take place earlier, in agreement with the employer. The period of work has been reduced to three days for workers on a probationary period, with the seasonal nature of work. The employee has the right to withdraw his decision to dismiss before the expiration of a two-week period. After this period, he must receive a timely payment and a work book.

Grounds for dismissal

Calculation of 2 weeks when sending an application by mail

There may be long delays when submitting your application by mail.

Based on the direct interpretation of the provisions of the Labor Code of the Russian Federation, it is necessary to count 2 weeks of compulsory service from the day following the day of receipt of the application. However, judicial practice proceeds from the fact that, even if the employer received the employee’s application later than the date of the intended dismissal, provided that a two-week period from the date of drawing up the application is observed, the dismissal is considered legal (decision of the Supreme Court of the Russian Federation dated July 11, 2014 No. 78-KG14-12).

The possibility of not complying with the direct instructions of the law is due to the fact that the employer, at the time of receiving the application, did not receive its response from the employee, which confirms the latter’s intention to terminate the employment contract.

Conclusion. In this case, the period begins to run from the date the application is drawn up, and not from the moment it is actually received by the employer.

Thus, we summarize the judicial practice on the issue of the date from which service is counted upon dismissal. Please note:

• on the date the employer receives the resignation letter;
• the date the employee submitted his resignation letter;
• the date specified in the employee’s application and the existence of grounds for releasing him from work earlier than 2 weeks at his request;
• the presence or absence of a withdrawal of the application for dismissal.
• actual actions of the employee.

Important! Termination of the performance of a labor function before the expiration of a two-week period without a valid reason is regarded as absenteeism and may serve as grounds for dismissal under Art. 81 of the Labor Code of the Russian Federation (clause 39 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2), which means it deprives the employee of the right to withdraw the application.

How to calculate 14 days of work upon dismissal is inextricably linked with the question of what date to dismiss the employee. At the same time, we note that the presence or absence in the employee’s application of a specific date from which he asks to be fired does not always help decide how to count dismissal with 2 weeks of work.

So, let’s sum it up: on what day work begins upon dismissal depends to a large extent on the moment the employer receives the resignation letter. There are exceptions, but their presence is due to a number of factors. It is equally important from what date the work is considered completed.

Service period upon dismissal

Is an employee required to work 14 days after submitting an application?

Dismissal entails the termination of the labor relationship between the employee and the employer.
It can be initiated by one party, or by mutual decision. If the initiator is an employee, then the law obliges him to work. This is done so that the employer can find a replacement for the vacant vacancy. But, the employer cannot force the quitter to work longer than two weeks after writing the application.

When two-week work is not required

In exceptional cases:

1. Working hours can be reduced to three days for workers leaving during the probationary period, as well as for seasonal workers and those working under a two-month contract.
2. Pensioners and employees enrolled in an educational institution have the right to leave earlier, without waiting for two weeks. However, they can indicate the date of departure.

Important. An employee has the right not to work for two weeks even if there are objective circumstances. For example, illness or urgent move to another city.

Thus, the two-week work period is not mandatory. This is the period within which the employer must be notified of the upcoming dismissal of an employee. The same procedure applies when an employee is on vacation or sick leave.

How to calculate 14 days when personally delivering and electronically sending a resignation letter

The answer to the question of how to count 14 days of work upon dismissal is directly provided for in Part 1, Paragraph. 1 tbsp. 80 of the Labor Code of the Russian Federation: the period begins the next day after the employer receives the employee’s application.

Thus, the legislator makes the beginning of the working period dependent on the moment of receipt of the employee’s application for dismissal.

The employee chooses the method of submitting an application to the employer independently: in person, by e-mail or by registered mail (letter of the Russian Labor Ministry dated September 5, 2006 No. 1551-6).

When delivering an application in person, the question of how to count dismissal with 2 weeks of work is decided according to the general rule: from the next day after the day of delivery. It does not matter whether the day is a working day.

Important! There is a risk for the employer when submitting an application by email. Dismissal on the basis of a copy of an employee’s application without the employer having its original may be considered illegal (ruling of the Supreme Court of the Russian Federation dated September 11, 2017 No. 20-KG17-7).

We recommend! Insist that the employee send the original document.

Work upon dismissal in 2021

By agreement of the parties

If the dismissal occurs at the initiative of the employee, the employee can discuss with his superiors a method of dismissal that suits the parties.
The employer has the right to require the employee to work the two weeks due, unless the employee belongs to exceptional categories (for example, a pensioner). But he also has the right not to demand work from the employee. The employee may be released from work duties even the next day. If the dismissal occurs by mutual agreement, the employee can avoid working off the job. The peculiarity of this method is that the decision to dismiss can be canceled only by mutual agreement of the parties.

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Important. If the parties have reached an agreement regarding the date of termination of the employee’s work duties, it is recommended that this decision be recorded in writing.

Dismissal of a pensioner

At the time of retirement, a person must decide whether to continue working or not.
If he decides not to work, then he has the right to leave without working off. In this case, the resignation letter should indicate the reason for leaving - retirement. Such a reason can be indicated only once in the application. During subsequent dismissals, the pensioner will not be able to indicate this reason. Therefore, for further layoffs, work will be required, but it will be three days.

At your own request

When resigning of his own free will, the employee notifies the employer and writes a statement two weeks before the expected day of departure. This is stated in Article 80 of the Labor Code of the Russian Federation. In two weeks, the employee will be able to calmly complete his work and transfer the work to other employees. The employer, in turn, will spend this time searching for a new employee.

If the employee writes a statement, but after two weeks the employer refuses to let the employee go, the employee has the right to stop working. If he does not receive a payment and a work book, he can file a complaint with the labor inspectorate and record the fact of non-payment. If after this the employer does not eliminate the violation and does not settle accounts with the employee, you can go to court.

At your own request

Important. Within two weeks after writing the application, the employee can change his mind and withdraw his decision. However, if another employee has already been found to replace him and they have managed to formalize him, the resigning employee will be denied further cooperation.

How to write a letter of resignation “without working for two weeks”

You must inform management of your unwillingness to work two weeks. Discuss possible options for dismissal, convenient terms for both the employee and the manager. Dismissal by agreement of the parties is an excellent way to leave without working while maintaining good relations with the company’s management.

If a person leaves as a result of a conflict, or life circumstances force him to quit soon, and management does not want to cooperate, he will have to take a different route. The application must indicate objective life circumstances that impede the performance of work in this company, as well as indicate the desired date of departure. This could be an urgent move, illness or other valid reasons.

If there are supporting documents, they can be attached to the application. In this case, the employee may be released from working hours. If, for good reason, the employer still refuses, the employee can file a complaint with the labor dispute commission, labor inspectorate or court.

Application for dismissal without working for two weeks

After vacation or sick leave

If an employee wrote a letter of resignation while on sick leave or on vacation, vacation pay or days on sick leave will be counted as working off. The same thing, if holidays or weekends fall within two weeks after writing the application, they will also be counted. This is what the Labor Code prescribes, counting a two-week period as calendar days.

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It does not matter whether the employee is on vacation or goes to work, the two-week period will be calculated the same in all cases. An employee can resign without taking leave, or ask that days of unused vacation be counted as work off.

Application for resignation after vacation

What everyone needs to know

If the decision is made, the application should be written to the head of the organization. It is recommended to make two identical documents to insure in case of sudden loss. The application must be submitted to the HR department or directly to the person in charge. On the second copy, the responsible employee must make a note of familiarization.

Many employers try to keep an employee at work for as long as possible (not only 14 days, but also a month) and do not want to hear anything about the fact that the word “work off” is not in the law. It is illegal

When and how to make an application

Management must be notified in writing 14 days in advance. There is no typical application form in law. Before writing, you should contact the HR department to find out about the rules of a particular employer. There are general recommendations for drafting a document:

1. It must be written in your own hand addressed to the employer.
2. In the header in the upper right corner you should indicate the position and full name of the manager, the name of the company, the position and full name of the employee, and the name of the department.
3. In the middle is the word: “Statement.”
4. Indicate the date of writing and count 14 days from the day following the submission of the application on which the employment contract should be terminated, and sign.

Should I indicate the reason for dismissal?

If an employee was asked to work 14 days in order to find a replacement during this time, then a specific reason may not be specified. However, if you need to leave ahead of schedule, it is worth describing it. Additionally, you must provide a document confirming the authenticity of the circumstances (this could be retirement, moving with your family to another city, illness of a child, etc.).

Is it possible to change your mind and stay?

From the day the application is submitted until the day of dismissal (within 14 days), you can change your mind and withdraw the application. However, if a new candidate has already been invited in writing to this position and, by law, the contract with him cannot be terminated, then the applicant will be fired.

Ways to avoid two-week detention

What else can you do to avoid processing:

1. If possible, notify the employer in advance and coordinate with him the details of the dismissal. This will help avoid conflict situations, which means it will be easier to reach an agreement with the manager.
2. You can write an application while on vacation. You can design it specifically for this purpose. Two weeks before the end of your vacation, write a letter of resignation. The person will be on vacation, and the two-week work period will continue. It should be noted that a person will receive his documents only after the end of the period of work and vacation.
3. After writing your resignation letter, take sick leave. This method is suitable for people who have health problems, but, for some reason, are postponing treatment. The period of time spent on sick leave will be counted towards the time of service.
4. Write an application for leave with subsequent dismissal.

Important. The employer must issue the employee a paycheck and work book on the last day of work. If the employer does not want to let the employee go and does not return the work book or delays payment after dismissal, you should file a complaint with the labor inspectorate.

In what cases is this not required by law?

In addition to a personal agreement between the parties, the employee going on vacation and sick leave, the law outlines situations when working off upon dismissal is not required. They are due to the employee’s inability to continue his professional activities (Article 80 of the Labor Code):

• admission to an educational institution;
• retirement;
• violation by the employer of labor law norms - if there are supporting facts, it is advisable to contact the labor inspectorate, prosecutor's office, or court.

Article 80 of the Labor Code leaves the list open, providing for the possibility of other cases when an employee is allowed not to work - for example, when :

• moving to another region;
• conscription into the army;
• disability;
• caring for a relative or child;
• the development of occupational diseases or those associated with acclimatization, and so on.

In the above cases, dismissal is formalized on the day the application is written.

There are no exceptions to the standard procedure for a pregnant woman . When deciding to terminate the employment contract, she can include vacation days in her work. It is also possible to take sick leave with these days counted.

If health problems arise and medical documentation with specified deadlines is presented, the pregnant employee, at her request, is fired without working on the day specified in the application.

Controversial cases of dismissal “without work”

The Labor Code provides a list of life situations in which a person is exempt from working:

• pension;
• disease;
• admission to study;
• if the employer violates the law;
• disability;
• pregnancy;
• baby care;
• other valid reasons.

Conflict situations most often arise due to the employer’s reluctance to recognize the employee’s reasons as valid. Sometimes you have to go to court. There is a practice in which the following circumstances are recognized as valid, excluding the following:

• health problems that do not allow the employee to fully work in a specific position;
• the need to move;
• care for disabled persons.

Drawing up an application

To be dismissed, an employee must write a statement. If there are grounds for exemption from work, you can ask for quick dismissal from the employer. To do this, they write: “I ask you to fire me without work for the reason...”

The application form is in writing. An oral agreement has no legal force. If there is no desire to work out the required period just like that, then with the resignation letter they submit a request for vacation or sick leave. It is better to first arrange a vacation, and then notify of your desire to resign.

How to calculate the last day of work if the date of dismissal is not indicated in the application

If the employee has not expressed a desire to resign on a specific date, the question arises of how to calculate the day of dismissal.
After all, failure to comply with the deadlines specified in the labor code will be a violation. The employee's rights will be violated if the dismissal is too hasty, because he has two weeks to revoke his decision. At the same time, delaying the deadlines will lead to the fact that the employee will not receive the payment and work book on time. In addition, if he has already found a new job, failure to complete work at his previous workplace on time will cause difficulties. The consequences for the employer are the imposition of an administrative fine. And if the employee goes to court, they will end up having to pay compensation.

Important. The official dismissal of an employee is formalized on the 14th calendar day after he submits his application. The two-week period includes weekends and holidays, days when the employee is on sick leave or on vacation.

How to quit your job: actions

If you need to leave your job on your own initiative, the dismissal procedure consists of the following steps:

1. Writing and submitting an application to the manager. This document should indicate the date of the application and the reason for dismissal. You can simply write “at your own request.” It is also possible to indicate a specific reason, for example, “due to relocation.” This may serve as a reason for the employer to agree to cancel the work.
2. Work within 14 calendar days. The work period begins the next day after submission of the application. Moreover, if the employer does not sign the application, the work will nevertheless be counted from this day, because the application indicates a specific date.
3. Order of dismissal. This act is drawn up and signed by the manager. The date of the order may coincide with the date of the employee’s last working day. In this case, it is allowed to be published before the end of the service, but indicating the date of dismissal, coinciding with the last working day. The dismissed person must be familiarized with the order against signature.
4. Filling out personnel documents. This responsibility lies with the company's HR department. A record of the employee’s dismissal from his position is entered in the work book. This is done on the last day, due to the fact that during the working period a person may change his mind about quitting.
5. Receiving documents and invoices. According to part four of Article 84.1, the management of the organization is obliged to fully pay wages and other payments on the last working day. Also on this day, a work book and, if necessary, certified copies of work-related documents are issued.

You can find out more nuances about documents for voluntary dismissal here, and read this article about how to correctly carry out the dismissal procedure.

A mandatory entry in the work book about voluntary dismissal is reflected as follows:

Liabilities

It should be borne in mind that the procedure under study involves the fulfillment of certain obligations by the employee and the manager. Upon dismissal, a subordinate must notify his superiors of the decision 14 days in advance. These are all his responsibilities.

And the employer has more obligations. He needs to accept the application, issue an order, and transfer it to his subordinate for review. A mark is also placed in the employee’s work book. The calculation is performed on the date of dismissal. A work book, pay slip, and income certificate are required. Obstructing dismissal is prohibited.