Application for resignation: we formalize leaving work competently

What is a resignation letter?

Article 77 of the Labor Code of the Russian Federation lists the grounds for termination of an employment contract. One of them is employee initiative. Having decided to leave your job, you must write a letter of resignation of your own free will.

A resignation letter is a personal document required to terminate an employment contract between an employer and an employee at the initiative of the latter.

It is assumed that the initiative comes from the employee and his intention is absolutely voluntary. In practice, this does not always happen.

However, the application of Article 80 of the Labor Code of the Russian Federation is, as a rule, mutually beneficial: there is less hassle for the employer, and the employee has a normal entry in his labor record.

Another plus is that you can quit even during a period of temporary absence from work. For example, during sick leave or vacation. When terminating an employment contract at the initiative of the employer, this is unacceptable (Article 81 of the Labor Code of the Russian Federation).

The procedure for voluntary dismissal: what is important to know?

Most often, employees quit of their own free will. We will tell you in detail about the procedure for voluntary dismissal, as well as what documents the employer needs to prepare.

Under what article are people fired at their own request?

The general grounds for termination of an employment contract are specified in Art. 77 Labor Code of the Russian Federation. Dismissal at the initiative of the employee, that is, dismissal at his own request, is named in paragraph 3 of this article. Consequently, the employee is dismissed at his own request on the basis of clause 3 of Art. 77 Labor Code of the Russian Federation.

The procedure for dismissal at will

The procedure for dismissal at will is regulated by Art. 80 Labor Code of the Russian Federation.

The short procedure for voluntary dismissal looks like this:

1. The employee writes a letter of resignation. 2. The employee works the allotted time. 3. The employer issues a dismissal order. 4. The employer makes the final settlement with the employee and issues him the documents necessary for dismissal. Now let's look at each step in more detail.

Writing an application

Having decided to dismiss, the employee must write a corresponding statement to the employer, thereby warning him of the upcoming dismissal. As a general rule, an employee must give notice of his dismissal no later than two weeks in advance (such two weeks are usually called working off). Moreover, this two-week period begins the next day after the employer receives the resignation letter (Article 80 of the Labor Code of the Russian Federation).

Therefore, having decided to write about dismissal of your own free will, it makes sense to focus on the two-week rule, that is, in the application indicate the desired date of dismissal, taking into account two weeks of work.

Signature on the application

Of course, an important element of the application for dismissal at the initiative of the employee is his handwritten signature on this application. After all, the employee’s signature, in fact, serves as proof that filing a resignation letter is the employee’s good will.

You will find all the nuances of writing a resignation letter of your own free will, as well as a sample of such a statement, in a separate consultation.

Dismissal during probationary period

There are nuances of voluntary dismissal when dismissing an employee who is on a probationary period. So, such an employee must notify the employer in writing about the upcoming dismissal three days in advance (Article 71 of the Labor Code of the Russian Federation). That is, for workers on a probationary period, the working period is only three days.

Can an employer refuse to accept a resignation letter of his own free will?

In principle, the employer does not have the right not to accept an employee’s resignation letter at his own request. After all, serfdom was abolished long ago. But if for some reason the employer violates the rules, then the resignation letter can be sent to the employer by registered mail with a list of attachments and acknowledgment of delivery.

Is it possible to withdraw an application?

Before the day of dismissal, the employee can at any time withdraw his resignation letter at his own request (Article 80 of the Labor Code of the Russian Federation) and, accordingly, continue to work. True, the employee will still be dismissed if another employee has already been invited in writing to take his place and, by virtue of the law, he cannot be refused to conclude an employment contract. For example, it is impossible to refuse to conclude an employment contract to an employee invited in writing to work by way of transfer from another employer, within one month from the date of his dismissal from his previous place of work (Article 64 of the Labor Code of the Russian Federation).

By the way, if an employee decides to go on vacation with subsequent dismissal, then he can withdraw his application before the day the vacation begins (Article 127 of the Labor Code of the Russian Federation).

Making an order

Having received a resignation letter from the employee at his own request, the employer issues a dismissal order (Article 84.1 of the Labor Code of the Russian Federation).

As a rule, the order is issued on the day the employee is dismissed. After all, even after submitting a resignation letter of his own free will, the employee has the right to change his mind (we will talk about this in more detail below).

You can develop your own form of order, but it is easier to use the unified form T-8 (approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1).

A sample voluntary dismissal order can be found here.

The employee must be familiarized with the dismissal order against signature (Article 84.1 of the Labor Code of the Russian Federation). If the dismissal order cannot be brought to the attention of the employee (for example, the employee submitted a resignation letter while on sick leave) or the employee refuses to familiarize himself with it under signature, a corresponding note is made on the order.

At the request of the employee, the employer is obliged to provide him with a certified copy of the dismissal order.

Important point! Having issued a dismissal order, do not forget to submit information to your Pension Fund branch on the next working day in the form SZV-TD (clause 2, clause 2.5, article 11 of Law No. 27-FZ dated 04/01/1996).

Terms of dismissal

The day of dismissal is the last day of work of the employee, except for those cases when the employee did not actually work, but retained his place of work (Article 84.1 of the Labor Code of the Russian Federation). And if, for example, an employee goes on vacation with subsequent dismissal, then the day of dismissal is considered the last day of vacation (Article 127 of the Labor Code of the Russian Federation).

Dismissal without work

As a general rule, an employee who decides to quit must work for two weeks. However, there are exceptions to this rule. All details are in a separate article.

What entry is made in the labor record?

If an employee has chosen a paper work book rather than an electronic one, then when dismissing this employee at his own request, a corresponding entry must be made in his work book. The procedure for making a dismissal entry in the work book is as follows (clause 5.1 of the Instructions for filling out work books, approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69):

• column 1 indicates the serial number of the entry; • in column 2 the date of dismissal is indicated; • in column 3 an entry is made about the reason for dismissal; • Column 4 indicates the name of the document on the basis of which the entry was made (in case of voluntary dismissal, this is an order), its date and number. You can familiarize yourself with a sample of filling out a work book when dismissing an employee at his own request in a separate consultation.

The dismissal entry in the work book should be duplicated in the employee’s personal card (Form No. T-2). This entry must be familiarized to the employee against signature (clause 12 of the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225).

Full payment and issuance of documents

On the last working day of an employee who resigns at his own request, the employer is obliged (Article 80, Article 84.1 of the Labor Code of the Russian Federation):

• make final settlement with the employee; • issue the employee with a work book or information in the STD-R form, if the employee maintains an electronic work book; • issue the employee with other work-related documents.

Important point! If on the day of dismissal it is not possible to issue the employee a work book (or STD-R) due to his absence or because of his refusal to receive it, the employer must send the employee a notice of the need to come for the work book or agree to send it by mail or send the employee by registered mail with notification a certified STD-R form for the period of work with this employer (if the work book is kept in electronic form). From the date of sending the notice or letter, the employer is released from liability for the delay in issuing the work book (STD-R). Upon a written request from an employee who has not received a work book (STD-R) after dismissal, the employer is obliged to issue a work book no later than three working days from the date of the employee’s application (provide information on the STD-R form in the manner specified by the employee in his application).

Let us remind you that for violating the rules for issuing a work book (STD-R) to an employee, the employer faces a fine (Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Payments due upon dismissal

Upon dismissal of one's own free will, the employee is paid on the day of dismissal:

– salary for days worked, including the day of dismissal; – compensation for unused vacation.

What documents do you need to obtain?

As we said above, on the day of dismissal the employee must be issued a work book (or STD-R). Also give the employee:

• certificate of income and personal income tax; • certificate of earnings (the employee will need it to calculate sick leave benefits at the new place of work); • SZV-STAZH for the current year with data only on the resigning employee; • SZV-M for the current month with information only about the resigning employee; • section 3 Calculation of insurance premiums. In addition, the employee may require other work-related documents. It makes sense to issue the documents to the employee against signature.

Dismissal with the participation of an employee representative

An employee can involve his representative in the dismissal process. For example, an employee’s representative, if he has a power of attorney, can receive the amounts due to the employee upon dismissal (Article 136 of the Labor Code of the Russian Federation, clause 3 of Article 185.1 of the Civil Code of the Russian Federation). In addition, the representative can obtain the employee’s work book (Decision of the Supreme Court of the Russian Federation dated June 10, 2011 No. 5-B11-37), but again with the appropriate power of attorney.

Common mistakes quitters make

As a rule, employees do not make mistakes when resigning voluntarily. After all, little is required of them - just write a statement. And it is precisely with the application that the mistake that quitting employees sometimes make is connected. The fact is that the employee must submit a resignation letter to the employer in writing (we are not talking about remote workers now), and filing an application electronically is not provided for by law (Letter of the Ministry of Labor of Russia dated 03/06/2020 No. 14-2 / ​​OOG-1773 ). However, some employees, instead of providing the employer with a paper resignation letter, send the application electronically by e-mail. This is permissible, but only if such a procedure for submitting documents to the employer is provided for by the organization’s LNA.

Special cases of voluntary dismissal

Dismissal at one's own request is, in fact, the simplest type of dismissal. Therefore, there is no need to talk about any special cases of voluntary dismissal. Although such cases, in principle, can include, for example, going on vacation with subsequent dismissal, dismissal during a probationary period and dismissal without working off. We talked about them above.

Dismissal by agreement of the parties

In addition to dismissal at the initiative of the employee (dismissal at his own request), labor legislation provides for other grounds for dismissal. For example, by agreement of the parties. You can read more about dismissal by agreement of the parties here.

Dismissal at the initiative of the employer

The initiator of termination of an employment contract can be not only the employee or both parties (employer and employee) together, but also exclusively the employer. We discussed the nuances of dismissal at the initiative of the employer in a separate consultation.

Source: glavkniga.ru
04/28/2021, 12:31 Subscribe to the magazine

When should it be submitted?

You have the right to terminate the employment contract by notifying the employer no later than two weeks . This means that you will have to go to work and perform official duties for another 14 days. It is believed that during this time the employee will be able to transfer matters to colleagues, and the employer will be able to find a replacement for him.

The two-week period begins to count the day after the employer receives the resignation letter. For example, if you filed it on October 1, two weeks will begin to count from the 2nd, and the dismissal will be formalized on the 16th.

If an employee's last working day falls on a public holiday, the day of dismissal will be considered the nearest working day. For example, if you wrote a statement on April 17, then the dismissal will be formalized not on May 2, but on May 4.

This is a general rule. But there are also special cases.

When to write a statement “on your own”

Based on Article 80 of the Labor Code, an employee has the right to terminate an employment contract with an employer at his own request. You can do this at any time. However, in most cases it will not be possible to leave immediately - the employer must learn about the upcoming dismissal in advance .

By default, you must work 2 weeks from the date of application until dismissal, but there are exceptions:

• an employee on probation submits an application 3 days in advance (Article 71 of the Labor Code of the Russian Federation);
• a person who has entered into a fixed-term employment contract with an employer for a period of less than 2 months - 3 days in advance (Article 292);
• seasonal workers - 3 days in advance (Article 296);
• athletes or coaches who have entered into a contract for a period of 4 months - 1 month in advance (Article 348.12);
• manager - 1 month (Article 280).

After submitting an application for resignation at his own request, the employee is not required to work out the established period in full. For example, he may get sick or go on vacation - in such cases, work will not be extended. More details can be found in the letter of Rostrud dated 09/05/2006 No. 1551-6.

How to write a resignation letter

There is no unified form. But there are rules for drawing up a resignation letter.

The law requires that it be in writing: handwritten or typed on a computer. The personal nature of the expression of will is also emphasized by the employee’s signature. Without it, the application is invalid.

In the header you need to indicate the addressee (“to the general director of SharKo LLC, Ivan Ivanovich Ivanov”) and the addressee (“from the sales manager of SharKo LLC, Petrov Petrovich”). The word “Statement” will be the title. Next, you need to formulate a request for dismissal.

I ask you to dismiss me from my position at your own request <date>.

or

I ask you to dismiss me at your own request on the basis of Article 80 of the Labor Code of the Russian Federation. I request your dismissal to be made on <date>.

Please note that according to the order of Rostrud, the employee is not required to indicate specific motives. And it is better not to use the preposition “with” when indicating the date. The fact is that if you write “I ask you to fire me on October 20, 2016,” the personnel officer will most likely formalize your dismissal on the 19th. To avoid date confusion, indicate the specific day, month and year of dismissal.

You can submit your resignation letter in person or by mail, sending it by registered mail with notification.

Is it necessary to work for two weeks?

Yes.

But this is again a general rule. According to Part 2 of Article 80 of the Labor Code of the Russian Federation, it is possible to separate before the expiration of a two-week period by mutual agreement of the parties. If the manager does not mind, dismissal can be formalized even on the day the application is submitted.

The law also specifies cases when the employer is obliged to terminate the contract within the period specified in the application. For example:

• Enrolling an employee in an educational institution.
• Retirement.
• Violation of labor legislation by the employer (it must be officially recorded by the labor inspectorate, court or labor dispute commission).

Employee's dismissal date

The employee must give notice of dismissal at least two weeks in advance. The deadline starts from the next day after you receive the application.

For some employees, the law sets a different deadline:

• The director of the organization must notify the founder of dismissal at least one month in advance.
• An employee on a probationary period, a seasonal employee and an employee with whom a fixed-term employment contract has been concluded for a period of up to two months - no later than three days.

The employee may not comply with the two-week period and determine the date of termination of the contract himself if:

• he is unable to work due to going to college or retiring;
• dismissal is associated with a violation of labor legislation, which is recorded by the labor inspectorate, trade union, labor dispute commission or court.

By agreement with the employee, the two-week period may not be observed. For example, you both don’t mind terminating the contract after 5 days.

You cannot dismiss an employee before the deadline.

Can I be fired for absenteeism if I wrote a letter of resignation?

Yes they can.

Throwing a statement on the boss’s desk, slamming the door and giving up on everything is impressive. But counterproductive.

From the day you submit your resignation until the day your employment contract is terminated, you are still an employee of the company and are required to obey the labor regulations.

Absence from work without a valid reason is absenteeism. For this they are fired (Part 6 of Article 81 of the Labor Code of the Russian Federation). The same goes for inappropriate behavior in the workplace. Showing up to work drunk is also not an option.

Is it possible to change my mind

According to Part 4 of Article 80 of the Labor Code, you have the right to withdraw your application at any time before the expiration of the notice of dismissal. As a general rule - until 24 hours on the 14th day.

If you took a leave of absence followed by dismissal, you can withdraw your application before the start of the leave.

The application form is not specified. But you can simply pick it up from the HR department, you can make a corresponding note on the original document, or you can draw up a new one.

I ask you to consider my resignation letter of my own free will as of <date> invalid.

You can withdraw the application even if an order for your dismissal has already been drawn up and an entry has been made in the work book. But there is one “but”.

If another employee who cannot be refused employment (for example, by way of transfer) is invited to take your place in writing, you will not be able to withdraw your resignation letter.

The employee withdrew his resignation letter

The employee has the right to withdraw the application at any time before the end of the calendar day when the dismissal should be formalized (part 4 of article 80, part 4 of article 127 of the Labor Code of the Russian Federation, Determination of the Supreme Court of the Russian Federation dated August 10, 2012 N 78-KG12-10).

There are exceptions:

1. If another employee is invited to take the place of an employee, whom the employer does not have the right to refuse by force of law. For example, by virtue of Part 4 of Article 64 of the Labor Code of the Russian Federation, it is prohibited to refuse to conclude an employment contract to employees invited in writing to work by way of transfer from another employer, within one month from the date of dismissal from their previous place of work.
2. If the employee wrote an application for leave with subsequent dismissal. If such leave is granted, the employee has the right to withdraw the application only before it begins (Part 4 of Article 127 of the Labor Code of the Russian Federation).

Let's consider the Determination of the Second Cassation Court of General Jurisdiction dated October 29, 2020 in case No. 88-22327/2020. The employee wrote an application for leave with subsequent dismissal of his own free will. On the first day of his vacation, he withdrew his application. The employment contract was terminated and the employee went to court. The court sided with the employer and declared the dismissal legal.

Withdrawal of a resignation letter at your own request, like the application itself, can be sent in various ways, including by mail. But in this case, there is a risk that the revocation will come later than the date of the application, and at that time the employment contract will already be terminated.

Judicial practice on this issue is ambiguous. Most often, the courts side with the employee. Let's consider the Determination of the Ninth Court of Cassation of General Jurisdiction dated November 14, 2019 N 88-67/2019.

The employee wrote a letter of resignation of her own free will. Later she changed her mind and sent a review by post. When the review was delivered to the employer, the dismissal had already been formalized. The court sided with the worker. The employer's argument that the notice was received later due to the slowness of the postal service was not accepted by the court. According to Part 4 of Article 80 of the Labor Code of the Russian Federation, before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time.

There is also an opposite position that can help the employer protect his rights: Appeal ruling of the Supreme Court of the Chuvash Republic dated September 29, 2014 in case No. 33-3461/2014.

The employee sent the revocation of the application by mail, and the employer received it after dismissal. The court sided with the employer, citing the dishonesty of the employee, who knew for certain that the mail containing the withdrawal of the application would not reach the addressee before the date of dismissal, and therefore abused his right.

If the employee has withdrawn the application for dismissal, and the employer has already issued the corresponding order, made an entry in the work book and reflected information about the dismissal in the information about work activity, then in this case the order should be canceled, the entry in the work book must be declared invalid and a corrective form must be submitted to the Pension Fund of the Russian Federation. “Information on the labor activity of a registered person (SZV-TD).”

Please note that if, after the expiration of the period specified in the application, the dismissal is not formalized, but the employee continues to work and does not insist on this procedure, then the employment contract continues (Part 6 of Article 80 of the Labor Code of the Russian Federation).

What to do if the application is not signed

The law does not oblige the employer to endorse resignation letters. But in practice, as a rule, they are registered in a special journal and the manager signs.

What should you do if the HR department does not accept your application or your boss refuses to sign an autograph? First of all, rejoice: you are a valuable employee, they don’t want to part with you!

Secondly, make a knight move. Try registering the application in the organization's office as incoming correspondence. Didn't work? Then plan B: send it by registered mail with notification addressed to the manager. The postal notification will confirm that the employer received your message and a visa will not be required. Then work for two weeks, and you can be completely free.

It’s another matter if the application is not signed, the dismissal is not formalized and you no longer want to leave. If after 14 days you continue to work as if nothing had happened, the employment contract will continue.

How does the dismissal procedure work?

At the end of the notice period, the employer issues an order to terminate the employment contract. You must be familiarized with it against receipt (Article 84.1 of the Labor Code of the Russian Federation).

Then the personnel officer will make an entry in your work book: “Dismissed at his own request, paragraph 3 of part 1 of Article 77 of the Labor Code of the Russian Federation” or “The employment contract was terminated at the initiative of the employee, paragraph 3 of part 1 of Article 77 of the Labor Code of the Russian Federation.”

Make sure that the HR specialist does not confuse the clause, part and article of the Labor Code. Financial liability is provided for entering into the work book an incorrect or non-compliant formulation of the reason for dismissal (Article 234 of the Labor Code of the Russian Federation).

Once you receive your work book and other necessary documents, you can apply for payment. You must be paid wages for days worked in the month of dismissal, and compensation for unused vacation, as well as severance pay, if provided for in the employment contract.

That's all! You can pack your things, say goodbye to your colleagues and take your favorite ficus home.