Please consider me free...
Let's start with the most basic thing that should be in the application, on the basis of which the employment contract with the employee will be terminated. Namely, with a clearly expressed desire of the employee to terminate the employment contract with the employer. This may be evidenced by the phrases: “dismiss”, “terminate the employment contract”, “terminate the employment relationship” - these are exactly what should be contained in the employee’s application.
If the document contains neutral expressions (“I ask you to relieve me of my position”, “I resign my authority”, “I ask you to consider me free”, etc.), then issuing a dismissal order on the basis of such a statement can become a very risky business. . After all, the employee may later state that he just wanted to take a vacation/time off or transfer to another position.
Therefore, if an employee brings a statement with such wording, ask him to rewrite the paper. You can formalize this by order of the manager, issued on the basis of an internal memo from a personnel employee. In it, the HR employee informs the manager that a statement has been received from the employee in which the will to dismiss is implicitly expressed. The manager, in turn, issues an order informing the employee of the provisions of the Labor Code about the procedure for dismissal at his own request and asks to confirm whether the employee’s will is aimed specifically at dismissal. This order is delivered against signature.
In the Kontur-Personnel program, you can use not only the unified form T-8 “Dismissal Order”, but also the expanded form T-8, taking into account the vacation days used.
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How to write a resignation letter correctly
Currently, there is no standard form for a resignation letter in the Russian Federation, so it can be drawn up in free form. But at the same time, a number of requirements must be met:
- Firstly, the resignation letter must contain the employee’s signature. Otherwise, it will not have legal force.
- Secondly, the employee must clearly understand that the application must contain unambiguous wording confirming his desire to leave the company. So in your resignation letter it is better to directly indicate: “I ask you to dismiss me from such and such a position.” Otherwise, uncertainty may arise as to whether such a statement is sufficient grounds for dismissal under clause 3, part 1, art. 77 Labor Code of the Russian Federation.
ATTENTION! If the employee formulated the statement vaguely, the court may subsequently conclude that his decision to leave the company was not voluntary, moreover, that the employer forced the employee to make such a decision. And then the court can reinstate the specialist at work even despite the fact that he himself wrote and signed the application (subparagraph “a”, paragraph 22 of the resolution of the plenum of the RF Armed Forces dated March 17, 2004 No. 2).
In addition, in practice, employees often have a question: how to write a letter of resignation - manually or on a computer? The Labor Code of the Russian Federation does not contain any provisions or restrictions in this regard. This means that a resignation letter can be written either by hand or executed on a computer. The only thing that is important is that such a statement must prove the employee’s voluntary desire and intention to leave the company, and therefore contain the necessary details specified above and the signature of the person leaving.
IMPORTANT! It will not be a violation to submit an application for dismissal not in person to the company’s HR department, but by mail (letter of the Russian Labor Ministry dated September 5, 2006 No. 1551-6).
Sometimes employees use a trick: they give the HR department a copy of their resignation letter, but keep the original. In this situation, it is important for the employer to remember that a copy of the employee’s resignation letter is not grounds for dismissal. If subsequently the employee, trying to be reinstated in his previous place, denies that he ever made such a statement, the court is highly likely to side with him (appeal ruling of the Moscow Regional Court dated March 24, 2014 in case No. 33-6364/2013).
In practice, many companies, in order to eliminate possible unpleasant consequences for themselves, create an internal universal sample application for resignation at their own request. And when the employee decides to leave, all that is required of him is simply to print and sign such a sample, indicating his data.
Is two weeks a period or a period?
The next bottleneck in a voluntary resignation letter is the date of termination of the contract. Many employees do not bother themselves with calculations and submit an application without specifying a dismissal date at all, believing that in two weeks they will be fired automatically. However, this should not be done under any circumstances. Let's explain why. According to Art. 80 of the Labor Code of the Russian Federation, an employee who decides to quit must notify the employer about this at least two weeks in advance. Please note that the legislator says “no less than...”, which means that we are talking only about the minimum notice period. So nothing prevents an employee from reporting his intentions three weeks, a month, two, or six months in advance.
So it turns out that if the application does not indicate the date of dismissal, then such a document cannot be accepted for execution. The solution is the same as in the previous case: if verbal suggestion does not help, the personnel employee prepares a memo addressed to the manager, and he issues an order explaining the procedure for dismissal and asking to clarify the date.
Lawyer's answers to private questions
Is it possible to submit a resignation letter without working hours remotely if the employer is located in one region and I work in another?
Yes. The application can be submitted electronically if there is an enhanced qualified electronic signature. It is also possible to send documents by Russian Post by registered mail.
I want to resign of my own free will without work, I entered the university as a part-time student. Is it possible?
It all depends on when the session starts. You need to take a summons certificate. If lectures begin immediately after admission, the employer is obliged to terminate the contract without notice. If lectures are only a few weeks away, the employee has the opportunity to work. Therefore, detention can be assigned.
Can I quit without working time if I need to care for a seriously ill relative?
Yes, but you will need a medical certificate confirming the need for ongoing care.
I want to quit my job without work, I have a disabled child. Is it possible not to work for 2 weeks?
Yes, if you can reach an agreement with the employer or there are documents confirming that the child needs the 24-hour presence and care of a parent.
Is it possible to quit without working 2 weeks if I need to undergo surgery?
Yes, hospitalization is grounds for canceling the warning period, because... the employee will not be able to work. The manager needs to provide medical documents for confirmation to avoid disputes.
No preposition needed
Another important point to pay attention to is related to the date of termination of the employment relationship. According to Art. 84.1 of the Labor Code of the Russian Federation, the day of dismissal is the employee’s last working day. Accordingly, it is this day that the employee must indicate in his application as the date of dismissal.
And this must be done clearly to avoid possible misunderstandings. That is why it is customary to indicate the date of dismissal in the application without any pretext: “I ask you to dismiss me on November 17, 2016,” or even better: “Please consider November 17, 2021 as your last working day.” But if the application says “I ask you to fire me as of November 17, 2021,” then it is no longer clear whether the employee plans to go to work on November 17 or not.
If an “incorrect” application is received, we already know the algorithm of action: an oral request to rewrite it, and if that doesn’t help, then a memo and an order from the manager.
Sample letter of resignation at own request
Unused vacation upon dismissal of an employee
If an employee has unused vacation days left, there are two options:
- give him compensation for all days of unused vacation;
- provide him with leave followed by dismissal - at the request of the employee. If he asks for leave with subsequent dismissal, you have the right to refuse and simply pay compensation to the employee. Such leave is formalized by two orders: on granting leave (form T-6) and on termination of the employment contract. On the last working day, you need to pay the employee and issue all his documents.
Dismissal without work
To conclude the conversation about dates, let’s consider a situation where an employee filed an application in which the date of dismissal is indicated without taking into account the two-week notice period, that is, the employee asks to dismiss him before the expiration of this period.
In this situation, the employer has a choice of actions. He can agree and fire the employee on the day he asks, without waiting for two weeks to expire. A similar option is provided for in Art. 80 of the Labor Code of the Russian Federation, which states that by agreement between the employee and the employer, the employment contract can be terminated before the expiration of the notice period for dismissal. In this case, the employee’s statement and the order issued on its basis will precisely confirm the existence of such an agreement. The Labor Code does not stipulate that the agreement must be written or in the form of a separate document.
The second possible course of action in this case would be to notify the employee that his application was submitted in violation of the rules established by Art. 80 Labor Code of the Russian Federation. This should be followed by a proposal to indicate the date in the application, taking into account the provisions on the need to notify the employer at least two weeks in advance. In this case, the employer must inform the employee that his initial statement has no legal force and he will not be fired on its basis.
What to do if an employee changes his mind about leaving
The period of service is needed not only by the employer, but also by the employee himself, in order to think carefully about everything. Within two weeks, he can change his mind and not leave his workplace. But everything becomes more complicated if a new candidate has already been selected to replace him. In this case, the obligation to hire a new candidate should not arise voluntarily, but by force of law. For example, when transferring from another place of work, if the candidate has already quit there.
If the order is not signed, there are no problems - the employee simply leaves a request to withdraw the application. What if the order is signed, a settlement note is drawn up, an entry is made in the work book and wages and compensation are paid? Then you will have to spend a lot of effort: compensation must be returned, the entry in the book must be canceled, and the order must be cancelled.
The signature is the head of everything
An application for voluntary resignation has few required details. And almost all of them have already been discussed above. But don’t forget about the most important detail – the employee’s signature. Obviously, it must be on the application. Without it, this document has no legal force.
To avoid disputes about whether the employee himself signed the application or whether his signature was forged, we recommend making it a rule in all personnel documents to provide employees with the opportunity not only to sign an autograph, but also to independently fully decipher their signature (as is usually done in notarial documents: powers of attorney, contracts and so on.). It is better to file a “dismissal” application in the same way.
Results
To summarize, we can conclude that dismissal without working for two weeks is quite possible. Working out upon voluntary dismissal is not always a mandatory procedure, and its duration may vary. Of course, if the employee was unable to avoid working time and is at work, he must comply with all the terms of the employment contract. Otherwise, the employer has the right to fire him for absenteeism or failure to fulfill job duties.
In any situation, the best solution would be to agree on all the details of dismissal with the employer, who often accommodate employees halfway.
This will avoid possible difficulties and disputes during care. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
Must be fully endorsed
And in conclusion, we want to give one more universal piece of advice. Many managers like to endorse employee applications. So, you need to take into account that in the case of a resignation letter, it is possible to endorse only the entire application.
In other words, when endorsed, the manager cannot make any reservations or otherwise change the dismissal procedure specified by the employee in the application. In this case, the very principle of dismissal “on one’s own” is violated: the initiative no longer comes only from the employee, but partly from the employer. Therefore, all such changes can be carried out only by agreement of the parties, drawn up either in a separate document or in a new, clarified statement from the employee.
Special warning period
It is necessary to notify your superiors just 3 days in advance if:
It is necessary to terminate the employment contract for a period of less than 2 months (Article 292 of the Labor Code of the Russian Federation).- It is required to begin performing seasonal work (Article 296 of the Labor Code of the Russian Federation).
- The person is on probation (Article 71 of the Labor Code of the Russian Federation).
notice is required if:
- The athlete wants to break the contract with his coach or vice versa (Article 348.12 of the Labor Code of the Russian Federation).
- The party that wishes to terminate the contract is the company itself (Article 280 of the Labor Code of the Russian Federation).
