Article 78 of the Labor Code of the Russian Federation, dismissal without working for two weeks in 2021 - is it possible, how to write a statement, sample

Comments on Article 78 of the Labor Code of the Russian Federation, judicial practice of application

Agreement of the parties as a basis for termination of an employment contract is used in cases where the desire of only the employee or only the employer is not enough to terminate the employment contract. A mutual expression of will of the parties to terminate the employment relationship is required.

By agreement of the parties, it is possible to terminate any contract - both concluded for an indefinite period and a fixed-term one before its expiration. Agreement of the parties is the only basis for termination of the employment contract, without requiring any other reasons.

The specific date of termination of the employment contract is determined by the parties.

The initiative to terminate an employment contract on this basis can come from any party to the employment contract: both the employee and the employer.

Since labor legislation does not contain a requirement for written termination of an employment contract at the initiative of the parties, an agreement between the employee and the employer on termination of the employment contract can be drawn up in the form of:

additional agreement on termination of the contract signed by the parties and attached to the employment contract;
a written application from the employee with the employer’s resolution (by the employer making a corresponding entry on such application);
in the form of an order (instruction) from the employer to terminate the contract in accordance with Article 78 of the Labor Code of the Russian Federation, signed by the employee expressing consent to terminate the contract by agreement of the parties.

Clause 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” contains the following explanations:

Cancellation of an agreement regarding the period and grounds for dismissal

When considering disputes related to the termination of an employment contract by agreement of the parties (clause 1 of part one of Article 77, Article 78 of the Labor Code of the Russian Federation), the courts should take into account that, in accordance with Article 78 of the Code, when an agreement is reached between the employee and the employer, an employment contract concluded for an indefinite term, or a fixed-term employment contract can be terminated at any time within the period determined by the parties. Cancellation of an agreement regarding the period and grounds for dismissal is possible only with mutual consent of the employer and employee.

Position of the Constitutional Court of the Russian Federation

Norm Art. 78 of the Labor Code of the Russian Federation, which does not allow an employee to refuse to fulfill an agreement with the employer to terminate an employment contract does not contradict the Constitution

According to the applicant, Article 78 of the Labor Code of the Russian Federation does not allow an employee to refuse to fulfill an agreement reached with an employer, a legal entity, to terminate an employment contract, which violates his right to freely dispose of his abilities to work and is contrary to the Constitution.

The Constitutional Court of the Russian Federation indicated the following. Freedom of labor also implies the possibility of terminating an employment contract by agreement of its parties, i.e. based on the voluntary and agreed expression of will of the employee and employer. Reaching an agreement to terminate an employment contract on the basis of a voluntary agreement of its parties allows for the possibility of annulment of such an agreement solely through the agreed expression of will of the employee and the employer, which excludes the commission by both the employee and the employer of arbitrary unilateral actions aimed at abandoning a previously reached agreement. Such legal regulation is aimed at ensuring a balance of interests of the parties to the employment contract and cannot be considered as violating the constitutional rights of the employee.

The resolution of the issue of granting an employee the right to unilaterally cancel an agreement to terminate an employment contract, as related to a change in the current legal regulation, falls within the competence of the Constitutional Court of the Russian Federation, as defined by Article 125 of the Constitution of the Russian Federation and Article 3 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” , does not apply (determination of the Constitutional Court of the Russian Federation dated October 13, 2009 N 1091-О-О)

General grounds for termination of employment relations

At the legislative level, an exhaustive list of universal reasons is provided that can become the basis for severing previously established labor relations. These procedures are regulated by Chapter 13 of the Labor Code.

Such a break can occur:

when the employee desires it;
the initiative for dismissal is taken by the administration;
by mutual agreement of the parties.

In the first case, the legislator exercises the employee’s right to change his place of employment with some restrictions. Usually they are associated with certain production issues.

In particular, the need to ensure continuity of the technological process. Immediately, the need arises to redistribute the work among the remaining workers or to find a new person to fill the vacancy that appears.

When the initiative to rid the company of a specific employee is taken by the administration, it will be necessary not only to select a basis clearly stated in the law, but also to complete the entire procedure of registration, coordination with trade unions, analysis of the case, and informing the employee. Violation of the procedure is fraught with the restoration of the citizen to his previous position, the need to pay him a monetary allowance for the entire period of the proceedings, as well as (if considered and accepted by the court) material compensation.

Therefore, it is necessary to act here in accordance with the clear requirements of the law.

If the parties reach a consensus and decide to disperse peacefully, then Article 78 of the Labor Code will be applied, allowing termination of labor activity by consent of the parties. It is important to note that consent can be either oral or written.

In any case, the citizen is obliged to write a written resignation letter to the employer for this reason, and the employer puts a resolution “for execution” on such a statement. This will be evidence of the approval required by the dismissal procedure.

A citizen can be dismissed from work only on grounds clearly provided for by labor legislation.

Another commentary on Article 79 of the Labor Code of the Russian Federation

A fixed-term employment contract is terminated upon the expiration of its validity period, of which the employee is warned by the employer at least three calendar days before dismissal, in contrast to the previous wording of the article.

A warning about termination of a fixed-term employment contract must be given in writing. The legislator establishes a general mandatory rule for the employer to warn the employee about the upcoming termination of the employment contract. If there is no written warning from the employer, and the employee continues to work, then the employment contract is considered concluded for an indefinite period (see Article 58 of the Labor Code and commentary thereto). The employment relationship actually continues, but if in the future the parties consider it inappropriate to continue the employment contract, then it can be terminated, but not under Art. 79 TK.

Dismissal of an employee upon expiration of the contract concluded for the duration of the duties of the absent employee does not require such notice.

Parts 2 - 4 of the commented article clarify the moment of expiration of a fixed-term employment contract. An employment contract concluded for the duration of a specific work is terminated upon completion of this work. The legislator links the termination of an employment contract not with its expiration date, but with the deadline for performing specific assigned work (for example, drawing up an accounting report). The fact of dismissal of the employee in this case will be the date on which the work is considered completed (completed).

Part 3 of the commented article provides that an employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work. It must be borne in mind that such an agreement may have a specific period: say, four months or a year and a half, and in the event of an absent employee returning to work early, such an agreement is terminated.

An employment contract concluded for the duration of seasonal work is terminated after a certain period. The grounds for dismissal of an employee will be the end of the season. The list of seasonal work, including individual seasonal work, the implementation of which is possible during a certain period (season) exceeding six months, and the maximum duration of these individual seasonal work are determined by industry (inter-industry) agreements concluded at the federal level of social partnership (see Art. Articles 293 - 296 of the Labor Code and commentary thereto).

Current labor legislation establishes additional guarantees when terminating a fixed-term employment contract, for example for pregnant women. In particular, in the event of expiration of a fixed-term employment contract during the pregnancy of a working woman, the employer is obliged, upon her application and upon provision of a medical certificate, to extend the term of the employment contract until the end of pregnancy. In this case, a pregnant woman is obliged, at the request of the employer (but not more than once every three months), to provide a certificate confirming the state of pregnancy. However, if a woman actually continues to work after the end of pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day the employer learned or should have learned about the end of pregnancy (see Article 261 of the Labor Code and commentary to it).

If it is established during the trial that there have been multiple conclusions of fixed-term employment contracts for a short period of time to perform the same labor function, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period (see paragraph 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 17.03. 2004 N 2).

Commentary to Art. 78 Labor Code of the Russian Federation

1. The principle of freedom of contract involves ensuring the possibility not only of concluding a contract, but also of freely terminating it on the mutual initiative of the parties. The commented article establishes the operation of this principle in relation to an employment contract.

2. By agreement of the parties, it is possible to terminate any contract - both concluded for an indefinite period and a fixed-term one before its expiration. Agreement of the parties is the only basis for termination of the employment contract, without requiring any other reasons.

The specific date of termination of the employment contract is determined by the parties.

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3. The Labor Code does not determine the form in which the agreement of the parties to terminate an employment contract can be expressed. Such an agreement can be drawn up in the form of a corresponding document (additional agreement) attached to the employment contract, a written statement from the employee with a resolution of the competent official of the organization - the employer, and finally, in the form of an order (instruction) of the employer to terminate the contract in accordance with the commented article, signed by the employee with an expression of consent to terminate the contract by agreement of the parties.

4. In practice, the agreement of the parties as a basis for termination of an employment contract was used if, for some reason, such termination was impossible on a unilateral initiative. Current legislation has removed almost all restrictions on dismissing an employee at his own request, while maintaining the existing restrictions on terminating an employment contract at the initiative of the employer. Therefore, an agreement between the parties as a basis for terminating an employment contract does not make sense for the employee (since he can resign at any time of his own free will) and is potentially dangerous for the employer (in the event of a dispute, he will be forced to prove the absence of pressure on the employee when terminating the employment contract).

5. An agreement to terminate an employment contract by agreement of the parties can only be canceled by mutual consent of the parties (clause 20 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”). This does not exclude the possibility of dismissing an employee at his own request (Article 80 of the Labor Code of the Russian Federation) or if there are grounds for this at the initiative of the employer.

6. The agreement on termination of the employment contract may provide for the payment of severance pay to the employee or other compensation payments. However, such a condition is not established upon termination of an employment contract with managers, their deputies, chief accountants and members of collegial executive bodies of state corporations, state-owned companies, as well as business entities, who have concluded employment contracts, as well as business entities, more than 50% of the shares (stakes) in the authorized capital of which are in the state or municipal property (see Article 349.3 of the Labor Code of the Russian Federation and commentary thereto).

Dismissal by agreement of the parties or at your own request?

“By agreement of the parties” and “at one’s own request” are legislative formulations that speak only of the fact of the employee’s departure from the organization. But still, these two cases of dismissal have their own nuances, and we will focus on the most important features:

When dismissing at the initiative of an employee, the employer has the right to demand that the employee pay 2 weeks of work upon dismissal. Dismissal by agreement of the parties allows you to terminate the contract without working at any time.
The agreement of the parties gives the parties the opportunity to agree on any date for termination of the contract.
In case of voluntary dismissal, the employee has time and the opportunity to “change his mind”. Dismissal by agreement does not imply such a possibility (everything will depend on the will of the employer).
When an employee registers with the employment center, he is assigned a larger benefit and for a longer period than when dismissed on his own initiative without good reason.

Benefits for an employee upon dismissal by agreement of the parties

Dismissal by agreement of the parties provides the following benefits for the employee:

the ability to choose a convenient time of dismissal (on the same day, in a week, etc.);
the possibility of receiving compensation from the employer;
the possibility of dismissal without warning and work;
maintaining continuity of service for 1 month from the date of dismissal;
the opportunity to find a job immediately, without loss of material compensation;
a larger total benefit from the employment service.

In addition to a number of advantages, dismissal by agreement also has certain disadvantages that the employee should take into account.

Disadvantages for an employee upon dismissal by agreement of the parties

Dismissal by agreement may be disadvantageous for the employee for the following reasons:

Art. 78 of the Labor Code of the Russian Federation allows you to dismiss any employee at any time: on vacation or on sick leave; minor; a woman on maternity leave;
dismissal does not involve control by trade unions;
the employee does not have the right to “cancel” the dismissal;
a dismissed employee cannot count on a positive court decision to challenge the dismissal;
dismissal does not provide for any compensation or guarantees that are not provided for in the agreement, labor or collective agreements.

The following actions confirm the fact of staff reduction:

Appropriate changes are made to the staffing table;
An order is issued stating that a different staffing table must be adopted. No dismissal may be made until this schedule is accepted;
Order to reduce staff;
A notice of dismissal is made for each candidate;
Those being dismissed put their signatures and date on the issued order regarding the upcoming staff reduction (two months in advance);
An act on the offer of another job to the employee or another position is provided;
Act on the dismissal employee’s disagreement with the offer of another job (dates and signature of the dismissed employee) - in case of disagreement or in case of agreement, prepare an Act on the consent of the other proposed job (date and signature);
Notification letter to the exchange, three months in advance;
Order of dismissal, where it is necessary to have the signature and date of the dismissed person;
Payment documents signed by the dismissed person himself, indicating that he received payments in accordance with the law.

Dismissal by mutual agreement of the parties

The law provides for the procedure for terminating relations between an employee and an employer by mutual consent. In this case, the contract can be terminated at any time; the citizen may be on vacation, on sick leave, on maternity leave, etc. In Art. 78, dedicated to this method of dismissal, nothing is written about how this happens.

Once the parties have decided that their work together no longer makes sense, they enter into a termination agreement. After writing the application, a dismissal order is issued, a corresponding entry is made in the work book, the employee receives a paycheck and a book. All this can be done in one day. The fact is that if you are dismissed by mutual decision, you do not need to work for 14 days. An employee will be able to change his mind and stay only if the employer also wishes to do so.

This is not a very common method of dismissal. It is used, for example, if an organization or entrepreneur plans to lay off a person, but he realized this and decided to leave. The problem is that when applying for a new position, potential employers will have many questions. Someone might think that the organization or individual entrepreneur wanted to get rid of the employee for unknown reasons, which increases the risk of refusal when looking for a new job.

Registration of dismissal

Art. 78 of the Labor Code of the Russian Federation very succinctly states that a fixed-term or open-ended contract can be terminated with the mutually expressed desire of the parties. The article does not say anything more, but the comments to it provide an explanation of how such an agreement is made.

Any contractual relationship may be changed or terminated prematurely only by mutual agreement. All changes must be expressed in writing and approved by the personal signatures of the parties. The employer is required not only to sign the representative, but also to seal the organization.

The presence of this rule allows us to say with confidence that dismissal by agreement of the parties must be formalized in the following order:

Writing an agreement to terminate the employment relationship.
Issuing an order to put the agreement into effect.
Making records of dismissal in the personal documents of the dismissed person.
Calculation and payment of compensation amounts.

Each stage is carried out in accordance with accepted legal norms.

Drawing up an agreement

Any dismissal begins with the emergence of such a desire or need. Although termination of a contract under Article 78 implies a bilateral agreement, the initiative always comes from one person. And initially the parties discuss this possibility orally. In most cases, a verbal conversation does not translate into a written agreement. This is fundamentally wrong, and can lead to very unpleasant moments for both the quitter and the employer.

An undocumented agreement can be violated by either party, and the other party will not be able to argue that the violations are unfounded due to lack of evidence. For this reason, before an order to terminate the employment relationship is issued, an agreement must first be written.

The agreement does not have a set form and is drawn up according to the same rules as the agreement itself, only it has a very abbreviated form.

The agreement states:

Date of preparation.
Place of detention.
Information about the employer and his legal representative.
Information about the person being dismissed.
Information about the agreement reached.
Terms of dismissal.
Other important nuances regarding benefits or payments received.

In fact, this paper can describe any points that are important for the contracting parties and must be observed upon termination. It is important to remember that it will be possible to change the end date of cooperation specified in the agreement only with mutual desire, but in no case by one of the contracting parties.

Issuance of an order

Once an agreement has been reached, and all aspects have been specified in its paper version, you can proceed to the next step, namely the issuance of an order for the enterprise. Orders confirm all decisions of the manager, including the beginning and end of working relationships.

The order form has a strict unified form and is filled out in accordance with the recommendations of the Government of the Russian Federation.

The order must indicate the following information step by step:

Legal name of the organization.
The order number is assigned in accordance with the accepted continuous numbering.
Publication date.
The title of the document and a brief explanation of its subject matter.
Full name of the person being dismissed.
Personnel number, position and structural unit of the employee.
Date of dismissal.
The reason for the breakdown of relations, in this case it will be in accordance with Article 78 of the Labor Code of the Russian Federation by agreement of the parties.

The form is approved by the head of the enterprise and given to the person being dismissed for signature for review. Based on the order, all subsequent actions are carried out.

Entry into the work book

Copies of orders are sent to the personnel department and accounting department, which, in parallel with each other, carry out their part of the work related to the dismissal procedure.

Personnel workers must prepare for issuance to the employee his personal documents, which were stored in the organization during the entire period of work. Such a document is a work book. It reflects all official work activities of a person.

When a relationship is broken, a corresponding entry is made in the book, which is characterized by the following information:

The sequence number of the line.
Date of termination of the relationship.
Information about dismissal. It is usually written like this: “dismissed by agreement of the parties.”
The name of the document stipulating the termination of agreements.
Order number and date.

The entry is secured with the personal signature of the personnel employee, indicating his position and full name. The seal of the company must be affixed.

It is recommended to fill out the work book on the last working day of the person being dismissed, and upon completion, the document is handed over to the person leaving.

What changed

Drawing an analogy between Articles 33 and 81, it is easy to notice the changes that the new code has undergone.

Article 81 significantly increased the powers of the employer when deciding the issue of dismissal.

Some items are completely new and have no analogies with the previous version, such as:

The presence of immoral misconduct among educators and teachers.
Disclosure of state, commercial or official secrets.
Change of ownership of the organization.
The actions of an employee who has direct contact with material assets, which resulted in a loss of trust in him.
A decision by management that resulted in serious losses for the enterprise.
Deliberate forgery of documents when applying for a job.

In addition, in many points that have not changed completely, significant additions have been made.

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Dismissal by agreement of the parties: compensation (payments)

What compensation and payments are due to an employee upon dismissal under an agreement?

On the day of dismissal, a final settlement is made with the employee who receives:

payment for time worked;
vacation pay;
payment to the employee of compensation provided for by the company’s current remuneration system, collective agreement or internal regulations;
other compensation specified in the agreement.

According to the law, the employer is not obliged to pay any compensation to the employee. However, when signing the Agreement, the parties can decide on the payment of material remuneration to the employee, determined by a specific amount, or expressed in the number of salaries.