Dismissal “on your own”: how to avoid pitfalls

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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Resignation requests may vary

It would seem that such a simple document that almost everyone has written more than once in their life, and it turns out that it can be written in different ways. The conditions of dismissal will depend on this. Let's list the options:

1. The standard option is an application for voluntary resignation, which requires mandatory work within two weeks (unless we are talking about a director, for whom the notice period is different).
2. Application for dismissal by agreement of the parties (read about all the nuances in the article on our portal “Procedure for dismissal by agreement of the parties”).
3. An application for dismissal without service is a variation of the second type. In this case, by agreement with the employer, you don’t have to work and you don’t have to go to work the very next day after submitting your application.
4. An application for dismissal during a probationary period will differ from the standard one in that the period in which the employer must be notified is only 3 days.

In some cases, an employee has every right to quit without working, without waiting for the employer’s consent. This is possible if there are certain reasons for this. For example, an employee:

• entered an educational institution;
• retired;
• changed his place of residence;
• must take care of a disabled person of group 1.

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.

General design rules

General requirements for written appeals are set out in Federal Law No. 59 “On the procedure for considering appeals from citizens of the Russian Federation.” Based on it, as well as generally accepted business practice, the application consists of five details:

1. Information about the addressee and applicant.
2. Title of the document.
3. Formulation of a request or proposal.
4. Date of application.
5. Signature.

Information about the addressee and applicant

In the upper right corner you must indicate to whom this statement is intended and, in fact, from whom it is.

Addressee information

Since the application is an official document, we write it not just to a person on the street, but to an official. Therefore, we make sure to indicate:

1. Addressee's position.
2. Name of the organization.
3. His first name, patronymic and last name.

The name and position of the addressee must be written in the dative case (we ask ourselves the question “to whom?”). For example, director Petrov or rector Ivanova.

Applicant information

In the information about the applicant, most often it is enough to simply indicate your last name and first name. When necessary, you can supplement with an indication of your position or status. We indicate this data in the genitive case (we ask ourselves the question “from whom?”).

Disputes often arise about whether it is necessary to put the preposition “from” in the line about the applicant. That is, which is correct: “Ivanova Maria” or “from Ivanova Maria”? Both options are valid.

The traditional form is to write without a preposition. But try reading the entire sentence - a series of first and last names sounds quite confusing. With a pretext this problem does not arise: it is immediately clear to whom and from whom.

Title of the document

It would seem that there is nothing difficult about simply writing a “statement.” However, there are some nuances here too. The most common question: should I write this word in capital or small letter? There are three valid spellings here.

With a lowercase letter at the beginning of the line and a period after the word

Traditional way of design. In this case, information about the addressee and applicant and the title of the document are considered one sentence.

Capitalized without a dot at the end

When you write the word “statement” in the center of the paper, it becomes the title of the entire document. And the same rule applies to it as to other headings: the first letter is capital, and there is no period at the end.

In capital letters without a dot at the end

The same rule applies here as in the previous paragraph. In the center is the title of the document, which means there is no need for a period at the end. This type of spelling is usually found if the text is typed on a computer rather than written by hand.

Formulation of a request, complaint or suggestion

This part starts with a red line. You are writing a statement for a specific purpose and must explain here exactly what you want from the addressee. Describe the reason for your request, your request, your arguments.

The wording is not limited by any rules, but vernacular language will look inappropriate here.

Try to adhere to a formal business style. Express your thoughts simply and concisely.

To justify the fairness of your request, you can attach additional documents to the application and refer to them in this part.

Date of application

Typically, the filing date is indicated immediately after the statement of the essence of the application and is aligned to the left.

You can also indicate the date immediately after the name of the document.

Signature

The signature on the application is always put manually, even if you filled out everything else on the computer. It is aligned to the right.

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

Employer initiative

Here are the most common reasons for dismissing an employee at the initiative of the employer:

• the employee’s inadequacy for the position held;
• failure to fulfill the employee’s job duties without valid reasons;
• severe violation of labor duties by an employee (failure to appear at work for more than 3 hours, theft, coming in drunk, non-compliance with labor protection provisions, intentional actions by an employee, an immoral act committed by a teacher, etc.);
• providing the employer with false documents when applying for a job;
• other cases.

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.

Notice of director's resignation

One of the important elements that contains the procedure for dismissing the CEO at his own request in 2021 is notification to the founders.

A month before leaving the company, the manager submits a notice of desire to resign.

This document is sent by registered mail or delivered in person. It indicates a request to hold an extraordinary meeting of the participants or owners of the company. The document contains the following information: location of the meeting; time; issues to be discussed.

Coordination of dismissal with the founders of the organization

At the meeting, the founders discuss the dismissal of the general director at their own request. Members of the company do not have the right to refuse the manager to leave the organization earlier than the period specified in the contract.

During the meeting, the founders agree on the deadline for the dismissal of the CEO at their own request - this is necessary to determine the time to find a suitable candidate to replace the retiring manager.

An order to resign a manager at his own request is issued on behalf of the founders of the company, based on the decision. The document states:

• name of the company and its details;
• information about the person leaving; reason for leaving the organization;
• date of termination of the contract.

To issue an order, use the unified form of document No. T-8, approved. By resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1, paperwork on the organization’s letterhead is allowed.

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.

An employee wants to quit: the actions of a personnel officer

HR specialists find themselves in this situation quite often and still sometimes make mistakes that can have unpleasant consequences in the future.

To avoid this, use simple recommendations.

1. Try to gently find out why - this information may be useful in the future if you are working to reduce employee turnover.
2. Explain to the employee all the features of the procedure for terminating an employment contract (including his right to change the decision).
3. To avoid mistakes and multiple rewrites, offer him a standard resignation letter form - have him rewrite it by hand and sign and date it in front of you.
4. Notify the employee's immediate supervisor if he or she has not done so independently.
5. Prepare all the documents that you are required to issue on the last day, make all the calculations.

Example of a resignation letter

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.

When an employer has the right to separate employees

Note that the reasons for dismissal from work at the initiative of the employer are varied, for example:

• liquidation measures at the enterprise or closure of the work of individual entrepreneurs;
• staff reduction.

But what guarantees are provided to the population in these cases? Let's give examples.

1. Part 1 of Article 180 of the Labor Code of the Russian Federation guarantees that an employer, in the event of liquidation, reduction of staff or numbers, is obliged to offer an employee a vacant position.
2. When staffing is reduced, the employee must be paid severance pay in the amount of average earnings, wages and the monetary value of unused vacation. At the same time, wages are due according to the average for the entire period of employment. This is the time when a person is looking for a job and is registered with the labor exchange, but, in general, no more than two months.

Notification of the Federal Tax Service

Subparagraph “l” of paragraph 1 and paragraph 5 of Article 5 of the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs” dated 08.08.2001 No. 129-FZ establish who to notify upon dismissal of the general director - the tax service. The organization is obliged to report to the Federal Tax Service information about the departure of the head of the enterprise and changes in the executive body of the company. An application drawn up in form P14001 should be submitted to the tax office. The document is notarized. The application is submitted by the new general director within three days from the date of appointment to the position. After this, the tax service enters information about the change of head of the company in the Unified State Register of Legal Entities.

If a new director is not selected, the application is signed and submitted by the former general director.

Dismissal due to military service

Military serviceman is a special status. His dismissal is carried out in a different manner from the dismissal of a civilian. Termination of the contract is carried out on the basis of Federal Law No. 53 “On Military Duty” dated March 28, 1998. That is, you need to rely on this law, and not on the Labor Code of the Russian Federation.

The right to dismiss a military personnel for family reasons is stipulated in Article 51 of Federal Law No. 53. This is possible under the following circumstances:

• A close relative cannot live in the climate of the area in which the serviceman is serving. For example, this may be due to illness. All supporting documents must be provided. These may be medical certificates. In this case, the serviceman may be transferred to a position in an area with a suitable climate.
• The person's spouse is also a military member and has been transferred to another duty station.
• There is an urgent need for family relocation.
• A person must care for a seriously ill relative. The disease is confirmed by certificates and medical and social examination. The latter is performed at the place of residence of the sick person.
• Caring for a minor child if a serviceman is raising him alone.

Based on family circumstances, you can leave contract service.

FOR YOUR INFORMATION! The law states that an employee can draw up a report on early departure from service. However, there must be good reasons for this. These are the circumstances that objectively prevent one from continuing to serve. The report must indicate the reason for early dismissal. It must be stated in detail and confirmed. When the command signs the dismissal documents, it must refer to paragraph 3 of Article 51 of Federal Law No. 53.

Early dismissal of an employee undergoing military service is carried out for other reasons. These are the following family circumstances:

• A close relative of an employee died while performing military duties or during training.
• A close relative was injured during military service or training, which led to his death.
• The resigning person is appointed as a guardian or trustee of a brother/sister under 18 years of age.
• A person provides full-time care for a seriously ill relative.
• Having a minor child raised alone.
• Having two or more children. An alternative situation is that an employee’s wife gives birth while her husband is serving in military service. To confirm the grounds for dismissal, birth certificates of the children are required.
• A serviceman is the parent of a child under 3 years of age with a disability.

There are more grounds for early dismissal for a military personnel than for a civilian. This is due to the fact that the employee has a large number of obligations. It works in more difficult conditions.

Responsibility of the CEO after dismissal

Even if the CEO was dismissed at his own request, the former manager is responsible for the decisions he made.

Both material liability (in case of loss or damage to the organization’s property) and criminal liability (if the manager has committed illegal actions) are possible.

In this case, the former employer has the right to file a lawsuit demanding that the dismissed employee be held accountable. The maximum period during which this is allowed is one year from the moment the fact of violation is established. There is an indication of this in Art. 4.5 Code of Administrative Offences, Art. 6.1 Code of Criminal Procedure of the Russian Federation, Art. 78 of the Criminal Code of the Russian Federation.

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Work and payment on the last day

Since the day of dismissal of an employee is considered a working day, except in certain cases, he must be at work and perform his official duties as usual (if he is not on vacation). Management is obliged to pay all payments due to the employee, which include:

• salary for hours worked;
• vacation pay and compensation for unspent vacation from previous periods;
• severance pay (if provided);
• other compensation payments.

Also, the person must be given a work book, in which the corresponding entry must be made.

Next, we will look at several specific cases and determine for them which day is considered the day of dismissal.