In this article we will not consider the grounds for termination of an employment contract and whether dismissal is lawful. We assume that all actions of the employer and employee before issuing the dismissal order comply with current labor legislation. This is a brief guide to the dismissal procedure from issuing an order to full payment and receipt of a work book.
Form and timing of issuing a dismissal order.
In accordance with Article 84.1 of the Labor Code of the Russian Federation, termination of an employment contract, regardless of the grounds for dismissal, is formalized by order (instruction) of the employer. The unified form of the dismissal order (Form No. T-8) was approved by Resolution of the Goskomstat of Russia dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment” (hereinafter referred to as Resolution of the Goskomstat of Russia No. 1).
When issuing an order, it is necessary to take into account two points outlined in the Instructions for the use and completion of forms of primary accounting documentation for recording labor and its payment (approved by Resolution of the State Statistics Committee of Russia No. 1).
First, the entry in the order on the basis for termination of the employment contract must exactly correspond to the wording of the current legislation with reference to the relevant article.
Secondly, the order must contain a reference to the document on the basis of which the order is prepared and the employment contract is terminated, indicating its date and number. The basis may be an employee’s statement, medical report, memo, summons to the military registration and enlistment office and other documents.
An organization can develop and approve its own forms of personnel orders, however, the above requirements for drawing up a dismissal order must be taken into account. Read about the mandatory use of unified forms in the article “Staffing table”.
The legislation does not establish deadlines for issuing a dismissal order. The order can be issued and signed in advance. At the same time, it must be remembered that the employee may withdraw his resignation letter.
Foundation documents
The basis for drawing up a dismissal order is a certain document that confirms the legality of termination of the employment contract. The order includes the name of this document, the date of its formation and the serial number.
The basis document for preparing an order may be:
- Employee's application for voluntary resignation.
- Medical report.
- Agreement of the parties.
- Service memo, act (if dismissal occurs for disciplinary action).
- Refusal of the dismissed person from the offered vacancies.
- Notification of upcoming layoffs.
- Summons to the military registration and enlistment office.
- Minutes of the meeting of the certification commission , an order on measures based on the results of certification.
Familiarization with the dismissal order.
Part 2 of Article 84.1 of the Labor Code of the Russian Federation obliges the employer to familiarize the employee with the order against signature. Even if dismissed at his own request, an employee can familiarize himself with the order, but refuse to sign for familiarization. If you refuse to sign for familiarization, you must make a corresponding entry on the order. This is a legal requirement; however, it is recommended that you additionally draw up an act of refusal to familiarize yourself with the dismissal order. In case of a dispute in court, this document will not be superfluous.
If it is impossible to familiarize the employee with the order for some objective reason (the employee’s illness, etc.), it is also necessary to make a corresponding entry in the order.
A rather ambiguous position is set out by Rostrud on its official website “Online inspection. RF" on the issue of familiarization with the order of dismissal due to the expiration of the employment contract. In particular, the following conclusion is formulated: the employee is notified of the upcoming dismissal, therefore, failure to familiarize himself with the dismissal order is not an independent basis for declaring the dismissal illegal. We consider this interpretation risky from the point of view of fulfilling the requirements of Part 2 of Article 84.1 of the Labor Code of the Russian Federation, therefore it is recommended to familiarize the employee with the dismissal order in any case.
The deadline for familiarizing yourself with the dismissal order is not established by law. However, it would be advisable to provide information on the day of dismissal. If the dismissal is a consequence of a disciplinary sanction, then it is necessary to comply with the requirement of Part 6 of Article 193 of the Labor Code of the Russian Federation. Familiarization against signature must be made within 3 days from the date of issuance of the order.
The employee has the right to request a copy of the dismissal order. The employer is obliged to issue a certified copy of the order if a corresponding application is received from the employee.
Signatures of the parties
After entering the basic information, the order must be submitted for approval to the director of the enterprise, who, with his signature, gives the order legal force.
And after signing by the head of the organization, the order must also be familiarized to the employee against signature. If the employee’s signature is missing from this document, the employee can subsequently challenge his dismissal in court.
If there is a trade union body at the enterprise, you should also put its mark on this form.
After completing the T-8 form, the first copy of the order remains in the organization’s archive, the second is sent to the accounting department, where the final financial settlement with the employee is made.
If the employee was a financially responsible person, then this order must be accompanied by a document stating that there are no material claims against him.
In addition, if a former employee wishes to receive copies of internal documents related to his work at the enterprise (orders of employment, transfers to other jobs, etc.), they must be issued within three days from the date of writing the resignation letter. All copies must be certified by responsible persons.
Termination of an employment contract can occur for various reasons. But regardless of them, issuing a dismissal order becomes an integral stage in the procedure for terminating an employment contract.
Dismissal - documentation.
After the order is issued, further documentation of the dismissal must be carried out. In particular, the following actions are performed.
If an electronic work record book is maintained for an employee, then in this case information on work activity is prepared in the STD-R form.
Below we will look in more detail at individual steps to document dismissal.
How to compose
The order is issued on a special form, handwritten or on a computer. It should not contain erasures, abbreviations or false data.
The following mandatory information is entered into the order form T-8:
- The name of the employer company in which the employee worked, indicating its organizational and legal form (this can be individual entrepreneur, closed joint stock company, LLC and OJSC) and OKPO.
- Document number: it is assigned taking into account the internal document flow adopted in the company.
- Date of the order: this is the employee’s last working day (according to general rules).
- The line with the date of termination of the employment contract is filled in when a fixed-term contract was concluded with the employee . In this case, the date of conclusion of such an agreement is assigned here.
- Full name of the dismissed employee in the genitive case.
- Personnel number , which was assigned to the employee during the employment process.
- The structural unit (or name of the department) in which the employee worked.
- Employee's position.
- Grounds for termination of the employment contract with the number and date of its execution (one of the documents on which the dismissal was based, for example, a letter of resignation).
- Reason for dismissal with reference to the Labor Code (for example, paragraph 3 of Article 77 of the Labor Code).
If the employee’s signature is missing, then the employee can later sue the employer for illegal dismissal.
In some cases, representatives of the trade union organization must put their mark on the order . This is required if the dismissed employee applied to the authority for a reasoned opinion on the issue of dismissal. The order contains details of the trade union's decision.
The order is issued in one copy . The employee does not need to be given one copy of the order: it refers to the company’s internal documentation. In this case, the employee can write an application to receive an extract from the order. In this case, the employer is obliged to provide it upon request within 3 days of receipt. Preparing an extract from the order may be necessary in order to hide certain confidential information. If a request for a copy of the order is not received from the employee, then the employer is not obliged to do so by default.
If the employee was a financially responsible person, then a document is attached to the order confirming the absence of material claims against him.
After the order in form T-8 has been issued, it remains stored in the organization’s archives. The order must be kept for 75 years.
Employment history.
Making entries in the work book is carried out in accordance with the Rules for maintaining and storing work books (approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”) and the Instructions for filling out work books (approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69 “On approval of the Instructions for filling out work books”).
Requirements for filling out a work book as provided for in the above regulations:
- the entry in the work book must exactly correspond to the text of the order;
- the entry must contain a mandatory reference to the relevant article, paragraph of the Labor Code of the Russian Federation or other federal law that served as the basis for termination of the employment contract;
- all entries in the work book must be certified by the signature of the employer or the person responsible for maintaining work books, the employer’s seal and the signature of the employee himself (except in cases where the employee refuses to receive a work book or is unable to issue it);
- Entries in the work book are made on the day the employee is dismissed.
Possible grounds for termination of an employment contract
The procedure for terminating an employment contract is regulated by the norms of the Labor Code.
This article talks about typical ways to resolve the issue, but each case is unique. If you want to find out how to solve your particular problem, call :
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The following may be grounds for termination of an employment contract:
- Dismissal during a probationary period due to unsatisfactory test results (under Article 71).
- Dismissal at one's own request under Art. 80 of the Labor Code.
- Dismissal by agreement of the parties under Art. 78 of the Labor Code.
- Dismissal due to the expiration of the employment contract under Art. 79 of the Labor Code.
- Dismissal due to staff reduction.
- Dismissal as a form of disciplinary action for gross or repeated violations of labor discipline under Art. 192-194 of the Labor Code.
- Dismissal of a long-term absent employee.
The employee must be familiar with the contents of the order upon signature. Also, on the day of termination of the employment contract, the employee is given a work book and a settlement is made with him according to Art. 140 of the Labor Code. Upon written application of the employee, he is given certified copies of documents.
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Separate articles are devoted to the timing of notification of dismissal, but information can be provided in writing without presenting the order itself, which means that such norms should not be considered as mandatory guidelines regarding familiarization with the order. However, Art. 62 of the Labor Code of the Russian Federation states that, at his request, an employee must be given duly certified copies of all documents accompanying his work, including a copy of the dismissal order, no later than 3 days after his request. Some people mistakenly interpret this provision as the employer’s obligation to issue a dismissal order at least 3 days before dismissal. Dedicated to the termination of an employment contract at the initiative of the employee, Art. 80 also does not provide for a period of familiarization with the order.
Causes
The reasons for canceling an order can be a variety of circumstances: the manager changed his mind about dismissing the employee, a dismissal order was erroneously issued, or the employee himself came to the decision not to resign and withdrew the application of his own free will.
The legislation does not introduce any prohibitions regarding the cancellation of orders; it is quite possible to do this if there are good reasons for it.
The main reasons for cancellation are divided into three main types based on grounds:
- According to Art. 80 of the Labor Code of the Russian Federation, the employee has the obligation to notify the employer of dismissal of his own free will two weeks in advance. At the same time, he has the right to withdraw his application at any time before the day of dismissal (inclusive). Therefore, one of the reasons may be the employee’s refusal to resign. If the order has already been issued, the employer will have to cancel it. That is, the basis is the personal initiative of the employee.
Cancellation can also occur at the initiative of the employer . For example, an employee was fired for absenteeism, but it soon became clear that he had a good reason. Under such circumstances, it is not beneficial for the employer to bring the matter to court; he has the right to independently cancel the order to terminate the contract with the person.- was made and entered into force to reinstate the employee at his place of work. For example, an employer fired a pregnant woman (he may not have known about the fact of pregnancy), who, according to the court, must be reinstated. That is, the basis is the decision of the judicial authority.
The basis for canceling the dismissal order must be stated in the administrative document . It is also accompanied by documentary evidence of the existence of compelling reasons.
How to cancel at the initiative of the employer?
To cancel an order to dismiss an employee at the initiative of the employer, it is necessary to issue another cancellation order . Verbally such documentation is in no way canceled.
Any responsible person can draw up such a document. But only the manager or the person replacing him has the right to endorse.
A special form of an order for cancellation cannot be found in the law. However, the document must comply with the basic rules of office work.
The main points of the order canceling the dismissal order:
- name ;
- document's name;
- in connection with which it was published;
- document number and date of publication;
- the essence of the cancellation order indicating the details of the order;
- details of the person on whom the manager assigns the obligation to cancel the document;
- grounds for cancellation;
- executive visa;
- signature for review by all interested parties.
There may be many interested parties. For example, they illegally reduced the number of employees. When there are many persons, a familiarization sheet is attached to the order.
All administrative documentation of the organization is published on white A-4 sheets.
How to issue an order for cancellation due to sick leave?
It is allowed to cancel an order due to the provision of sick leave.
For example, a person disappeared, and his employer fired him for absenteeism.
After the dismissal procedure, he showed up at work with a sick leave certificate, which confirmed the good reason for his absence.
Under such circumstances, the employer will have to cancel the order and cancel the dismissal entry in the work book.
The content of the order will be identical to the standard one. But the basis for cancellation is a sick leave certificate . Here you need to indicate its details.
order to cancel the dismissal order due to sick leave – word.
This is what the sample looks like:
In connection with the withdrawal of the application at his own request
The employee has every right to withdraw his resignation at his own request until the day of resignation (inclusive).
He can do this even after the dismissal order has been issued.
Then the employer will have to cancel the administrative document.
Unless, of course, another person was invited in writing to replace the employee by way of transfer from another company.
To cancel at the initiative of the employee, you must request written feedback from him. It contains data:
- in whose name the application is written;
- from whom the document is written;
- Title of the document;
- request to withdraw your resignation letter (document details are indicated);
- signature with transcript, date of application.
If the employer has not yet invited another person to replace the employee, he is obliged to accept the application to withdraw the application and issue a canceling order (if one has already been issued).
In case of cancellation of the dismissal record, the employer issues an order to terminate the contract on the employee’s last day of work. But even such actions do not always save him.
Even if the employee takes the work book and returns an hour later with the withdrawal of his application, the employer will have to cancel the order.
Important! It is not recommended to cancel a dismissal order based on the employee’s words. If controversial issues arise, the truth will be on the employee’s side.
The law does not provide for a special form of a manager’s order to cancel an order to dismiss an employee. But there are mandatory points that need to be included in the document.
Design example
order to cancel at the initiative of the employee on the basis of a written withdrawal of the application for dismissal at his own request - word.
This is what the sample looks like:
Such documentation is prepared on company letterhead. This is a clean white sheet of A-4 format with the company logo or just its name.
Errors and corrections in orders are not allowed.
If the responsible employee still made a mistake when drawing up the document, it is better to reprint the order. Otherwise, it may be declared invalid.
When is payment made for a dismissed employee?
By virtue of Part 1 of Art. 140 of the Labor Code of the Russian Federation, the worker must be paid on the day of dismissal. If the employee is not present at work, the calculation is made within one day from the moment the employee submits a request for the need to prepare it.
Thus, the dates of the order and dismissal most often coincide, but there may be situations listed in the publication when the dates may not correspond to each other. To avoid the need to cancel a pre-issued order, it is better to issue it directly on the day when the relationship with the worker ends.
This is interesting: Vacation during staff reduction
What date should the order be registered?
In standard situations, the order is registered on the day of the employee’s dismissal. This allows you to minimize the risks of incorrect execution of personnel documentation.
A problem may arise if the dismissed official, on the eve of termination of the contract, changes his mind about leaving the company, withdraws his application, and by that time the order has already been issued. In such a situation, the employer will have to issue a new order canceling the dismissal order.
This is important to know: Deduction for children upon dismissal
There is no legal prohibition on the early issuance of an order to terminate an employment contract. Each employer independently determines what date to register the administrative form, taking into account external circumstances. It may be necessary to draw up and register a dismissal order in advance in the following cases:
- the order is needed to initiate the reporting verification procedure;
- it is necessary to justify the unscheduled appointment of an internal audit aimed at checking the quality of work of the dismissed employee;
- the order is necessary to create conditions for the transfer of cases under the act;
- a financially responsible person resigns, which necessitates an inventory of the material assets entrusted to him.
After the actual date of dismissal, the order can be registered in the only case - the official did not show up for work, the employer could not contact the person to find out the reasons for the absence.
As time passes, the employer is notified of the employee’s death. In such a situation, the head of the company issues an order on the date on which he has documentary grounds for terminating the employment contract. In the text of the order, the day of death and the day of termination of cooperation must be identical.
On the last work shift, the dismissed official must not only be familiarized with the order, on this day the employee receives the final payroll and compensation accruals. No later than this date, the employer must ensure that the work book is issued to its owner. The fact of receipt of the form is certified by the signature of the owner of the document.
Is it possible that the date of drawing up the order is later or earlier than the day of dismissal?
As already mentioned, the law does not contain restrictions regarding the date of drawing up the order. In particular, it can be issued before the date of dismissal, in advance. In this case, the future date of dismissal of the employee is entered, upon which the administrative document will begin to take effect.
Example. Sidorov V.G. submitted an application on March 12, 2021, in which he expressed a desire to resign. In the document, he indicated the date of the last day of service - March 27, 2021. The employer issued an order that Sidorov V.G. will be dismissed on the day the application is received - March 12, 2021. At the same time, the dismissal date was set for March 27, 2021. Thus, when March 27, 2021 arrived, the order began to take effect and Sidorov V.G. was fired.
Important! Although the order can be issued before the employee is dismissed, the best option is to issue it on the day of dismissal. This is due to the fact that after drawing up the order, the worker has the opportunity to withdraw the application. In this case, the employer will have to cancel the administrative document.
The only case when an order is issued after the date of dismissal (termination of the contract with the employee) is the death of the employee, which the employer did not know about.
What document is used to formalize the termination of an employment contract in the Russian Federation?
A dismissal order is a local regulatory act of an organization, on the basis of which the employment contract is terminated.
Important! The basis for issuing an order is a letter of resignation, organizational acts of the company (for example, during liquidation) or a written refusal (for example, a transfer to another position).
In Art. 77 of the Labor Code of the Russian Federation lists all cases in which employment relations can be terminated.
Each of the following cases must be accompanied by the adoption of an order to terminate (terminate) the employment contract:
- mutual agreement between employee and employer;
- termination of a fixed-term employment contract;
- initiative of the employee or employer within the limits of legislative regulation;
- transfer to another job or elected position;
- termination of employment relations at the initiative of an employee in connection with the reorganization or relocation of the enterprise;
- refusal of an employee to carry out work activities due to changes in the terms of the contract;
- refusal to transfer to another job or position prescribed by a medical certificate;
- termination of employment due to circumstances beyond the control of the parties.
Also, an employment contract can be terminated if the procedure for filling it out is violated or provisions are established that contradict the law or infringe the interests of one of the parties.
Is it necessary to comply with the unified T-8 form?
The unified form T-8, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1, is recommended when designing an order.
In case of collective termination of labor relations, the document is developed in the T-8a form. In accordance with Federal Law No. 402-FZ dated December 6, 2011, the use of a unified form has not been mandatory since 2013.
The employer has the right to be guided by the recommendations of the State Statistics Committee, based on the approved form, and also to make additional adjustments to it.
You are allowed to design your own document. At the same time, it is necessary to establish the forms of applicable regulations in accordance with the policy of maintaining primary accounting records (Part 4, Article 9 of Federal Law No. 402 of December 6, 2011).
Important! If the employer uses its own order forms, they must contain the date, number, name and name of the organization, and also include a list of officials and names responsible for maintaining records.
Is it necessary to indicate the basis for dismissing an employee from his position?
in itself does not make the order invalid , since the corresponding condition is not reflected in the legislation of the Russian Federation.
However, if the basis for dismissal is a disciplinary sanction, then it must contain a link to reports, explanatory or service notes confirming this fact.
In addition, the law contains indirect references to the need to indicate the reason for dismissal (Article 394 of the Labor Code of the Russian Federation).
To avoid labor disputes, it is necessary to indicate references to labor legislation that confirm the legal status of termination of employment relations , as well as the document that served as the basis for termination of the contract.
These include an application for dismissal from an employee, a decision of the certification commission, an extract from the balance sheet upon liquidation of the enterprise, etc.
In what time frame must it be published?
Labor legislation does not contain direct requirements for the dating of an order. In practice, the date of approval of the document corresponds to the day of dismissal , since on its basis an entry is made in the work book (clause 5.1 of the Resolution of the Ministry of Labor of Russia dated October 10, 2003 N 69). However, there is no legislative prohibition on drawing up an order before the termination of employment relations.
Reference. The document can be approved earlier than the deadline (for example, 2-3 days in advance) provided that the date of dismissal is indicated.
If the grounds for termination of the employment contract no longer exist, the order may be cancelled.
It is not allowed to date the document on the day following the date of actual dismissal of the employee , since he must familiarize himself with it against signature (Article 84.1 of the Labor Code of the Russian Federation). The exception is the death of an employee.
What if the document is not completed?
If the order to terminate the employment contract is not issued, then there are actually no legal grounds for terminating the relationship between the employee and the employer (Article 84.1 of the Labor Code of the Russian Federation).
In this case, the employee is obliged to familiarize himself with the contents of the document before signature. Otherwise, as well as in case of violation of the established deadlines for issuing the order, the employee has the right to declare it invalid and also carry out labor actions.
Is it possible to terminate an employment contract without an appropriate order?
In fact, an employee can be fired without an order. However, from a legal point of view, such termination of an employment contract is unlawful and cannot be considered valid (Article 84.1 of the Labor Code of the Russian Federation). Among other things, there are no grounds for generating a pay slip and making an entry in the work book. This is a direct violation of employee rights.
In this case, the court decides to recognize such dismissal as illegal. In this regard, the sanctions provided for in Art. 394 Labor Code of the Russian Federation.
The employer is obliged to pay the employee the average salary for the entire period of forced absence, as well as reinstate him in his position.
Among other things, at the request of the dismissed person, the court may decide to collect monetary compensation for causing moral damage.
What is the time limit for withdrawing an application?
In most cases, the standard notice period for dismissal is 14 days. But for some categories of employees it can be either less (seasonal work up to 2 months) or more (managers and their deputies). And sometimes leaving without warning or at an earlier date is acceptable (Part 3 of Article 80 of the Labor Code of the Russian Federation).
Based on the specified periods of service, the application indicates the date of dismissal.
An employee has every right to cancel his application for dismissal before the end (24-00 hours) of the one for whom he indicated in it as the last worker (Part 4 of Article 80 of the Labor Code of the Russian Federation, determination of the Supreme Court of the Russian Federation dated August 10, 2012 No. 78- KG12-10).
If an application for leave with subsequent dismissal is submitted, then it can be withdrawn before the end of the day preceding the start of the leave (Part 4 of Article 127 of the Labor Code of the Russian Federation).
Example
An employee submitted a resignation letter on 09/08/2020, indicating 09/22/2020 as the last working day. Within what period can he change his mind and withdraw his notice of resignation?The employee is given the right to withdraw a previously submitted application during the entire working period - that is, 14 days, starting from 0-00 o'clock on the day following the date of transmission of the notice to the employer.
Thus, the employee has the right to notify the employer in writing of his intention to stay until 24:00 on September 22, 2020.
The only acceptable reason for refusing to cancel a resignation letter is the presence of a written invitation from another candidate to take the place of the outgoing employee.
The answer to the question whether it is possible to withdraw a letter of resignation after the end of the warning period is negative. In this case, time for reflection is lost, and the employer has every right not to cancel the dismissal order.
