77 Labor Code of the Russian Federation. Termination of an employment contract by agreement of the parties

Labor Code of the Russian Federation, article 77, part 1, paragraph 1, is the termination of an employment contract by agreement of the parties. In fact, this is not the easiest way to terminate an employment relationship. And first of all, for the simple reason that not a single regulatory document has a prescribed procedure for this action. Some believe that even the text of the article itself, in terms of the order in which the grounds are applied, may seem concise to many. Because of all these points, questions may arise, both for the resigning employee and for the employer, along with his personnel department.

The article provided is intended to enable the reader to understand as clearly as possible all the points of the Labor Code of the Russian Federation, Article 77. In this article, we will give certain recommendations on the grounds for termination of employment. So, we are faced with the issue of termination of the employment contract between the parties who mutually decided to part on mutually beneficial terms.

Features of dismissal by agreement of the parties

Oddly enough, but such a thing as dismissal by agreement of the parties has several significant features. For example, such an agreement can be terminated by the parties at any time, really at any time. We are talking about the fact that, for example, the employer has the right to terminate the employment relationship with his employee, even when he is not at the workplace. For example, an employee is on maternity leave, or he is studying, and so on. Also, an employee may be temporarily disabled and much more.

This is really convenient for the employer, because in this way he saves time when carrying out a reduction in the staff of the enterprise, of course, with the consent of employees who, for example, were offered good vacation pay. As for the employee, then he also has his advantages with such an agreement. For example, under the Labor Code of the Russian Federation, article 77, part 1, paragraph 1, the employee is not required to notify the employer that he is leaving two weeks in advance, as the Labor Code of the Russian Federation states. Plus, by agreement, the employer immediately pays the entire agreed amount, and not in installments.

In addition to everything else, there is one more positive moment in case of dismissal by mutual agreement of the parties for the employer. For example, even in comparison with Article 81 of the Labor Code of the Russian Federation, in our case, the issue does not need to be coordinated with trade union organizations. This plus has more influence, of course, on the heads of large enterprises.

The procedure for terminating an employment contract by agreement of the parties

I would also like to note the fact that it is article 78 of the Labor Code of the Russian Federation that regulates dismissal by agreement of the parties, but at the same moment it refers to the Labor Code of the Russian Federation, article 77 part 1 p 1! The fact is that the order is the basis for entering into the work book, and already in the order it is necessary to indicate the grounds on which the employment relationship was terminated, the listing of which is indicated in Article 77 of the Labor Code of the Russian Federation.

Next, the most interesting question, they say, how is the dismissal procedure itself carried out by agreement of the parties? The employment contract is terminated by agreement immediately after the employer or employee submits an appropriate application, which sets out their desire in writing.

Initiating Document

For example, it was the employee who decided to quit, using the Labor Code of the Russian Federation, article 77 part 1 p 1. In this case, he needs to send his proposal in writing to the address of the employer, where a proposal will be made to terminate the employment relationship between them. This proposal will be registered through the secretary in the prescribed manner in this company.

Agreement and order to terminate the employment contract

An agreement is drawn up to terminate the employment contract immediately after the parties come to an understanding. The agreement must state the agreements reached between the employer and the employee.

Note that Article 78 of the Labor Code of the Russian Federation does not say anything about the fact that the agreement between the parties must be drawn up in writing. In view of the foregoing, quite often, if the employee and the employer are not interested in each other's services, they simply terminate the contract orally, without all possible formalization in writing. But this cannot be done, because it is a delusion. You must draw up an agreement, whatever one may say, in writing, as this is the basis for dismissal. Based on the agreement, an order is issued.

Only if the agreement was drawn up in writing is there a guarantee of the security of both parties to the contract. You thus protect yourself from all sorts of problems due to the termination of the employment relationship with the other party.

The termination of an employment relationship is associated with a large number of formalities. The employer and the employee are obliged to follow the algorithm defined in the law so as not to violate each other's rights.

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Each employee must know and understand the labor laws that relate to his rights and obligations. But often people do not have up-to-date information, which leads to infringement of their interests.

The Labor Code of the Russian Federation allows organizations and employees to terminate labor relations as soon as possible. In 2019, employees appreciate the opportunity to quit and get a new job faster.

Employers are also interested in parting with unmotivated personnel as soon as possible.

Article overview

Article 77 of the Labor Code of the Russian Federation lists all cases when an employee and an employer terminate cooperation:

• agreement of the parties: voluntary expression of will aimed at terminating the contract;
• the term for which the contract was concluded has expired;
• employment relationship ends at the initiative of the employee;
• the agreement is terminated at the will of the employer;
• transfers to another company or a citizen moves to an elective position;
• a citizen refuses to continue working after the reorganization of the enterprise, the change of its jurisdiction or the transfer of the organization to another owner;
• the employee does not want to continue the legal relationship, as the conditions for remuneration have changed or his labor function is changing;
• a citizen, for medical reasons, cannot work in his position and refuses to transfer;
• the organization moves to another locality, and the employee does not want to go there to work;
• the contract is terminated due to circumstances that depend on the will of the officials of the organization and the employee;
• the parties violated applicable law when formalizing relations (for example, by a court verdict, a citizen was prohibited from holding a position).

Dismissal is not mentioned in the current edition of the Labor Code of the Russian Federation. The regulations emphasize the equality of the employer and any employee before the law.

Other articles of the Labor Code of the Russian Federation and regulations may provide for special grounds under which labor relations are terminated.

So, the contract is terminated if the employee of the educational institution repeatedly violates the charter of the organization (Article 336 of the Labor Code of the Russian Federation.).

Comments and clarifications

Termination of the contract may have various consequences for the citizen himself and his employer. Each case provides for a separate procedure for notifying the other party and certain guarantees.

For example, if a citizen wants to terminate the contract at will, he must perform labor duties for another 2 weeks after notifying the employer.

Part of the provisions of Art. 77 of the Labor Code of the Russian Federation directly refers to other articles of the regulatory act. For example, to understand in which cases the employer initiates the termination of the contract, you should study articles 71 and 81.

Disclosure of the norm of paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation occurs in the following article. The parties are given complete freedom of action: in the absence of external pressure, the employee and the representative of the employer have the right to terminate the contract at any time.

Main conditions and application principle

Termination of legal relations between the employer and the employee occurs subject to the following conditions:

• the grounds for termination of the contract are spelled out in one of the articles of the Labor Code of the Russian Federation;
• the parties to the agreement have been duly notified;
• the employer made a note in .

Key Features

Labor legislation imposes significant restrictions on organizations and employees. For example, if a reduction in staff is expected, the citizen must be notified of this 2 months in advance and receives a payment in the amount of the average monthly salary.

If a citizen does not want to continue working in the organization, he is obliged to notify the management in writing and work for another 2 weeks.

The legislator, having approved paragraph 1 of part 1 of article 77 of the Labor Code of the Russian Federation, indicates that the employment contract has the features of any other agreement.

The organization and the employee come to a consensus on further cooperation. The contract can be terminated on the same day if an appropriate entry is made in the work book.

No compensation payments, working out and performance of other duties of any of the parties are required.

An important advantage for the organization and the employee is that the termination of the relationship can be processed quickly and without additional costs.

However, the agreement may provide for additional payments, such as severance pay. Such an item is included if it leaves, for example,.

The only limitation is that you cannot terminate the contract with an employee who is on vacation. A citizen cannot sign an agreement and familiarize himself with an order. To get out of the situation, you can recall a person from vacation and subsequent dismissal.

The agreement can be canceled only by signing a new document. The validity of the agreement does not exclude the possibility of termination of the agreement on other grounds.

For example, the parties have established that the relationship will end after 1 month. After 2 days, the employee writes a statement by which he notifies the head of the organization of his desire to quit. The employer is obliged to terminate the contract 2 weeks after receiving the application.

Grounds for termination of the contract

The law specifies an exhaustive list of cases when an employee's contract with an employer can be terminated.

All bases are divided into a number of categories:

• employee initiative;
• employer's initiative
• by mutual will;
• due to external factors.

The employee has the right to terminate the employment relationship at any time at will. This means that a citizen is not obliged to motivate or justify his decision to quit. He must only notify the official of the organization in accordance with Art. 80 of the Labor Code of the Russian Federation.

There are a number of factors that terminate an employment relationship, regardless of the wishes of the employee and the employer:

• citizen sent to military service;
• the work is related to access to state secrets, and the employee has lost the right to use such information;
• the court ruled on the reinstatement of a person who was previously dismissed in violation of the law;
• the citizen was not elected to office;
• death of an individual employee or employer;
• the adoption of a normative act that introduces restrictions that exclude the possibility for a citizen to continue working in his current position;
• fire, flood or other disaster that prevents the further execution of the contract (if such an event was recorded by the decision of the authorized state body);
• other grounds specified in Art. 83 of the Labor Code of the Russian Federation.

Any ground from the above list obliges the officials of the organization to start the dismissal procedure.

The employer initiates the termination of the contract in several cases:

• the employee repeatedly refused to perform the duties assigned to him under the contract or on the basis of the job description;
• the qualification of the employee does not correspond to the position he occupies;
• during the year violations of labor discipline were established;
• a decision was made to reduce staff in the organization;
• commission by an employee to whom the organization has entrusted material values, an offense that gives rise to a loss of confidence in the employee;
• the citizen presented fake papers when applying for a job;
• the employee has not passed a preliminary test for employment;
• in other situations provided for by Art. 81 of the Labor Code of the Russian Federation.

The dismissal of a citizen depends on the desire of the employer. If the director or other official does not consider it necessary to part with the employee, then the contract will not be terminated.

Standard algorithm of actions

The process of termination of an employment relationship can be divided into several stages:

• negotiation;
• drawing up an addendum to the contract;
• issuance of an order;
• calculation and entry in the work book;
• issuance of labor to a citizen, delivery of a personal file to the archive.

The employee must sign the supplement and put a mark on the order that he has read the text. Employees rarely take part in the preparation of these documents, as this is done by lawyers or personnel specialists.

The citizen must receive his work book and calculation on the last day if payments are made in cash at the cash desk of the organization.

Dismissal Methodology

In paragraph 1, part 1, art. 77 and Art. 78 does not specify the time frame for notifying an employee or employer. Also, the law does not establish guarantees for any of the parties.

The initiative to dismiss may come from either party. Usually, the representative of the organization and the employee conduct oral negotiations on the terms of dismissal.

When the parties reach a consensus on the date of termination of the relationship, an additional agreement is signed to the contract.

It is not required to notify one of the parties in writing of the desire to terminate the contract. Although some organizations require that the process begin with a statement addressed to the director, which will set out the formal motive for dismissal. The form of such an application and the procedure for its consideration are not approved by law.

Be sure to draw up an order and an addition to the contract. No other documents are required.

The order is necessary for the transfer of an imperious order to certain services of the organization. Accounting needs to calculate how much a citizen is entitled to for the time actually worked, taking into account the vacation used.

The HR specialist must check whether the necessary entries have been made in the work book of the employee. For example, promotion, awards, etc.

Perhaps the employee has material assets of the enterprise, which should also be handed over after the inventory. Then it is written in the order who and in what period should check the availability and condition of things and transfer them to another employee.

It is also mandatory to sign an additional agreement to the contract. When a party signs a document, such an action fixes consent to terminate the employment relationship on a voluntary basis.

Wording of entries

Completion of the employment relationship is confirmed by making a mark in the work book of the employee. The process is regulated by the norms of the instruction approved in the Decree of the Ministry of Labor No. 69 of 10.10.2003.

The entry includes the following information:

• sequence number of the record;
• date of entering information;
• reason for termination of the contract;
• reference to paragraph of article 77 of the Labor Code of the Russian Federation;
• signature of the official who entered the information, position, surname and initials;
• details of the document on the basis of which the entry is made (for example, the date of issue of the order and its number).

It should not be indicated that the citizen was fired. In this case, the discrepancy between the text of the article of the Labor Code of the Russian Federation and the information in the work book is obvious. Article 77 refers to the termination or termination of an agreement due to various reasons.

Mutual agreement of the parties

The sample document must contain the following information:

• name, number, date and place of registration;
• organization name, full name official, full name and position of the employee;
• the assertion that the employer and the employee voluntarily decided to terminate the employment agreement on the basis specified in paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation;
• calendar date when the citizen will work the last day;
• an indication that on the last day the payment of wages, compensation for vacation will be made;
• the number of copies of the document (usually 2 for each party);
• the statement that the organization and the citizen do not have mutual claims against each other in connection with the signing of the document;
• date of entry into force of the agreement (for example, from the moment of signing);
• details and signatures.

New edition Art. 77 Labor Code of the Russian Federation

The grounds for termination of an employment contract are:

1) agreement of the parties (Article 78 of this Code);

2) expiration of the term of the employment contract (Article 79 of this Code), except for cases where the employment relationship actually continues and none of the parties has demanded their termination;

3) termination of the employment contract at the initiative of the employee (Article 80 of this Code);

4) termination of the employment contract at the initiative of the employer (Articles 71 and 81 of this Code);

5) transfer of an employee at his request or with his consent to work for another employer or transfer to elective work (position);

6) refusal of the employee to continue work in connection with a change in the owner of the property of the organization, with a change in the jurisdiction (subordination) of the organization or its reorganization, with a change in the type of state or municipal institution (Article 75 of this Code);

7) refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);

8) the employee's refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer (parts three and four of Article 73 of this Code);

9) the employee's refusal to be transferred to work in another locality together with the employer (part one of Article 72.1 of this Code);

10) circumstances beyond the control of the parties (Article 83 of this Code);

11) violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code).

An employment contract may also be terminated on other grounds provided for by this Code and other federal laws.

Part three is no longer valid.

Commentary on Article 77 of the Labor Code of the Russian Federation

Article 77 of the Labor Code of the Russian Federation contains a list of grounds for terminating an employment contract:

agreement of the parties;

expiration of the employment contract;

termination of the employment contract at the initiative of the employee;

termination of the employment contract at the initiative of the employer;

transfer of an employee at his request (with his consent) to work for another employer or transfer to elective work (position);

the employee's refusal to continue working in connection with a change in the owner of the property of the enterprise, a change in his jurisdiction (subordination) or reorganization;

the employee's refusal to continue working due to a change in previously determined terms of the employment contract;

the employee's refusal to be transferred to another job due to a state of health in accordance with a medical report;

refusal of the employee to transfer in connection with the relocation of the employer to another locality;

circumstances beyond the control of the parties (so-called force majeure or force majeure circumstances);

violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation (other federal law) - if such a violation excludes the possibility for the employee to continue the work assigned to him in accordance with the employment contract (labor function);

other grounds provided for by the Labor Code of the Russian Federation (other federal laws).

Note that in each of the listed cases of termination of the employment contract, the decision taken by the employer must not only be flawless from a legal point of view, but also be properly documented, i.e. recorded in certain documents.

Termination of the employment contract in connection with the transition

employee to work for another employer

or for elective work (position)

The procedure for terminating an employment contract in connection with the transfer of an employee to work with another employer or for an elective job (position) is not specifically defined by the Labor Code, although the appropriate basis for dismissal of an employee is provided for in paragraph 5 of part one of Article 77 of the Labor Code of the Russian Federation. In this case, the employer, apparently, should adhere to the general procedure for terminating the employment contract and the above recommendations, especially since the mentioned paragraph clearly defines the circumstances the occurrence of which makes it possible to dismiss the employee on the grounds under consideration.

Earlier, we have repeatedly drawn the attention of dear readers to the need to document the circumstances, the occurrence of which makes it possible to qualify the dismissal of an employee as legal. In the case under consideration, the issuance of an order (instruction) on dismissal is allowed on the basis of:

a written application of the employee, positively considered by the employer, containing a request to transfer the latter to work with another employer or the employee's consent to such a transfer;

a written application of the employee, positively considered by the employer, containing a request for the latter to transfer to elective work or the employee's consent to such a transfer.

We also note that in accordance with Part 1 of Article 375 of the Labor Code of the Russian Federation, an employee released from work in connection with his election to an elective position in the trade union body of this organization, after the expiration of his term of office, must be given the previous job (position), and in the absence such work (position) - with the consent of the employee - another equivalent work (position) at the same enterprise. However, if the employee refuses the proposed job (position), the employment contract with him is terminated on the grounds provided for in paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation.

As for the transfer of an employee to work for another employer, if such a transfer is carried out in accordance with a written invitation from another employer, the latter is not entitled to refuse to hire the employee within a month from the date of dismissal from the previous place of work, if, by agreement between the employee and the employer have not established another, including a longer period. An appropriate guarantee is provided for in Article 64 of the Labor Code of the Russian Federation.

from the continuation of work due to a change of ownership,

in connection with a change in the jurisdiction of the enterprise or

in connection with its reorganization

The procedure for terminating an employment contract in connection with the employee's refusal to continue working due to a change in ownership, in connection with a change in the jurisdiction of the enterprise or in connection with its reorganization is determined by Article 75 of the Labor Code of the Russian Federation. It should be emphasized that in this case the right and the initiative to terminate the employment contract ahead of schedule belongs to employees of the following categories:

The head of the company;

deputy head of the enterprise;

chief accountant of the company.

Such a right, more precisely, the right to refuse to continue working, is granted to the specified categories of employees if, after the conclusion of employment contracts with them, there is a change of ownership, a change in the jurisdiction of the enterprise or its reorganization. Note that dismissal for the indicated reasons should not be considered as a special case of dismissal of an employee of his own free will (see in this regard, article 80 of the Labor Code of the Russian Federation), since the article we are considering specifically lists the circumstances that make it lawful to dismiss an employee - at least and on his initiative.

The employee must notify the new employer about the refusal to continue work in connection with the change of the owner of the enterprise in compliance with the requirements established in relation to the procedure for such notification. If the employee refuses to continue working due to a change in the owner of the property of the enterprise, the employment contract is terminated on the grounds provided for in paragraph 6 of part one of Article 77 of the Labor Code of the Russian Federation.

The employee must also notify the new employer of the refusal to continue work in connection with a change in the jurisdiction (subordination) of the enterprise, as well as in the event of its reorganization (merger, acquisition, division, separation, transformation), in compliance with the requirements established for the procedure for such a warning. If the employee refuses to continue working due to a change in the jurisdiction of the enterprise or its reorganization, the employment contract is terminated on the basis indicated above.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Termination of the employment contract due to the refusal of the employee

from continuing to work due to changes in certain

parties to the terms of the employment contract

The procedure for terminating an employment contract in connection with the employee's refusal to continue working due to a change in the terms of the employment contract determined by the parties is determined by Article 74 of the Labor Code of the Russian Federation, on the content of which we dwelled earlier. In this regard, we will briefly dwell on issues directly related to the dismissal of an employee on the grounds provided for in paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation due to the occurrence of the circumstances considered within the framework of this paragraph.

The essence of these circumstances lies in a motivated change in the terms of the employment contract determined by the parties at the initiative of the employer in connection with a change in organizational or technological working conditions. An employee who has been duly warned about an upcoming change in the terms of an employment contract due to a change in organizational or technological working conditions and who has declared his refusal to continue working in the new conditions is subject to dismissal.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Termination of the employment contract due to the refusal of the employee

from transfer to another job due to health conditions

The procedure for terminating an employment contract in connection with the employee's refusal to transfer to another job due to health conditions is determined by Article 73 of the Labor Code of the Russian Federation, which we also discussed earlier. Therefore, we will again touch only on issues directly related to the dismissal of an employee on the grounds provided for in clause 8 of part one of Article 77 of the Labor Code of the Russian Federation due to the occurrence of circumstances determined by parts three and four of Article 73 of the Labor Code of the Russian Federation.

The essence of these circumstances lies in the obligation of the employer to transfer the employee to work that is not contraindicated for him for health reasons, if, in accordance with a medical report, the latter needs to be provided with such work. An employee who has been warned in accordance with the established procedure about the need to transfer to another job and who has declared his refusal to do so is subject to dismissal.

The decision of the employer to dismiss the employee in connection with the refusal to transfer to another job that is not contraindicated for him for health reasons will be legal even if he does not have the corresponding job in the given area (provided that he is not obliged to offer the employee the appropriate job in another terrain).

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Termination of the employment contract due to the refusal of the employee

from transfer to another job due to displacement

employer in another area

The procedure for termination of an employment contract in connection with the employee's refusal to transfer to another job due to the employer's relocation to another locality is determined by part one of Article 72.1 of the Labor Code of the Russian Federation, and the corresponding grounds for dismissal are provided for by paragraph 9 of part one of Article 77 of the Labor Code of the Russian Federation. Let us clarify that another locality in this case should be understood as an area outside the administrative-territorial boundaries of the settlement indicated in the registration documents of the employer as the permanent location of the latter.

The fact of moving the employer to another locality must be documented, and the refusal to transfer to another permanent job due to the employer moving to another locality must be expressed by the employee in writing. Failure to comply with these conditions - in the event of the dismissal of an employee on the grounds provided for in clause 9 of part one of Article 77 of the Labor Code of the Russian Federation - may subsequently cause a labor dispute in connection with the non-obvious legality of the employer's decision to terminate the employment contract.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Another commentary on Art. 77 of the Labor Code of the Russian Federation

1. The termination of an employment relationship is based on various types of legal facts, which can be divided according to the structure, volitional content, and also from the point of view of the legal source in which they are formulated.

2. The structure distinguishes between simple and complex legal facts (legal compositions). Labor legislation provides for both types of such facts. For example, in most cases of termination of an employment contract at the initiative of the employer, it is necessary to have a legal structure: as a rule, one expression of the will of the employer is not enough to terminate the employment relationship, a reason is needed that led to the emergence of the corresponding right for the employer.

Modern labor legislation expands the range of simple legal facts underlying the termination of an employment contract, which is a reflection of the transition to a market economy. So, before the entry into force of the Labor Code of the Russian Federation, perhaps the only case of this kind was the termination of an employment contract at the initiative of an employee. At present, in some cases, an employment contract may be terminated due to the unilateral initiative of the employer (see paragraph 2 of article 278 of the Labor Code of the Russian Federation and commentary thereto).

3. From the point of view of volitional content, legal facts-actions and legal facts-events are distinguished.

The first ones involve the termination of an employment relationship in the presence of someone's will. Thus, the will (initiative) to terminate an employment contract may come from its parties or from persons who are not a party. In this regard, we can talk about the termination of the employment contract by agreement of the parties, on the unilateral initiative of the party to the contract (employee or employer) or on the initiative of third parties.

Facts-events and facts-actions can be combined with each other, forming legal compositions, or represent single (simple) legal facts. For example, the termination of an employment contract due to the expiration of its validity period implies the presence of a complex legal fact: a) expiration of the term; b) the will of the employee or employer (see article 79 of the Labor Code of the Russian Federation and commentary thereto). On the contrary, the fact of the employee’s complete disability, his death, or in some cases reaching the legal age limit are the only grounds for terminating the employment contract with him (see paragraphs 5, 6 of article 83 of the Labor Code; paragraph 3 of article 336 of the Labor Code RF and commentary on them).

4. The current legislation has expanded the degree of contractual freedom of the parties to an employment relationship, which is due to the multi-structural market nature of the modern Russian economy. To a large extent, this process has found its expression in the part of labor legislation that regulates the termination of an employment contract. If before the entry into force of the Labor Code of the Russian Federation, the grounds for terminating an employment contract were regulated almost exclusively by the imperative norms of the law, then from now on they can be established both by law and by agreement of the parties. On the basis provided by the agreement of the parties, employment contracts with the head of the organization may be terminated (see clause 3 of article 278 of the Labor Code of the Russian Federation and commentary thereto); with employees employed by employers - individuals (see article 307 of the Labor Code of the Russian Federation and commentary thereto); with homeworkers (see Article 312 of the Labor Code of the Russian Federation and commentary thereto); with employees employed in a religious organization (see Article 347 of the Labor Code of the Russian Federation and commentary thereto).

5. In accordance with Art. 6 of the Labor Code of the Russian Federation, the procedure for terminating (termination) of employment contracts is the responsibility of the federal state authorities (see Article 6 of the Labor Code of the Russian Federation and the commentary thereto). At the same time, as follows from Part 2 of Art. 77 of the Labor Code, the grounds for termination of an employment contract are established by the Code and other federal laws.

Article 77 of the Labor Code of the Russian Federation lists the general grounds for terminating an employment contract, while additional grounds are indicated in other articles of the Code, as well as in other federal laws (see Articles 278, 288, 307, 312, 336 of the Labor Code of the Russian Federation and commentary thereto).

The division of the grounds for termination of an employment contract into general and special takes place in relation to cases of termination of an employment contract at the initiative of the employer (see Article 81 of the Labor Code of the Russian Federation and commentary thereto).

6. On termination of the employment contract by agreement of the parties (clause 1 of article 77), see art. 78 of the Labor Code of the Russian Federation and commentary to it.

7. On the termination of a fixed-term employment contract due to the expiration of the term (clause 2, article 77), see Art. 79 of the Labor Code of the Russian Federation and commentary to it.

8. On termination of the employment contract at the initiative of the employee (clause 3, article 77), see Art. 80 of the Labor Code of the Russian Federation and commentary to it.

9. On the termination of the employment contract at the initiative of the employer (clause 4 of article 77), see Art. Art. 71, 81 of the Labor Code of the Russian Federation and comments on them.

10. On the transfer of an employee to another employer (clause 5, article 77), see Art. Art. 72.1, 64, 70 of the Labor Code of the Russian Federation and comments on them.

11. Along with the transfer of an employee to work for another employer, clause 5 of Art. 77 of the Labor Code of the Russian Federation establishes the transfer of an employee to elective work (position) as a basis for terminating an employment contract. In terms of legal content, such a transition completely coincides with the case of termination of an employment contract due to the transfer of an employee to another employer (see Article 72.1 of the Labor Code of the Russian Federation and a commentary to it), since here there is also a change in the subject composition of the labor relationship. Therefore, all those general rules that are provided by law for this general case also apply to the situation that arises when an employee transfers to elective work (position). Persons elected (elected) to an elective position cannot be denied the conclusion of an employment contract (see Article 64 of the Labor Code of the Russian Federation and commentary thereto); they do not establish a preliminary test for a new work (see article 70 of the Labor Code of the Russian Federation and a commentary to it).

At the same time, the legislator interprets the transition to elective work (position) as an independent basis for terminating an employment contract. Therefore, despite the fact that the transition to elective work (position) is a special case of novation of the subject composition of the labor contract, it has specificity, manifested in two aspects.

Firstly, in the presence of organizational and legal consequences established by law that occur in connection with the stay of this person in an elected paid position. Such consequences are not provided for all cases of replacement of posts by election, but only for some of them. So, by virtue of Art. 375 of the Labor Code of the Russian Federation, an employee released from work in an organization or with an individual entrepreneur in connection with his election to a position in an elected body of a primary trade union organization, after the expiration of the term of office, is given the previous job (position), and in its absence, with the consent of the employee - other equivalent work (position) at the same employer (see Article 375 of the Labor Code of the Russian Federation and commentary thereto).

In accordance with Art. 25 of the Federal Law of May 8, 1994 N 3-FZ "On the status of a member of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly of the Russian Federation" to a member of the Federation Council, a deputy of the State Duma, who worked before being elected (appointed) as a member of the Federation Council, a deputy of the State Duma under an employment contract, after the termination of their powers, the former work (position) is provided, and in its absence - another equivalent work (position) at the previous place of work or with their consent in another organization.

A similar rule is provided for in the laws of the constituent entities of the Russian Federation, which determine the status of deputies of the relevant legislative bodies.

Secondly, in the specifics of the volitional content of the act of termination of the employment contract in connection with the transition to elective work (position). If, when transferring an employee to another employer, coordination of the wills of three subjects is required - the employee being transferred, dismissing the employer and the employer concluding a new employment contract, then in this case, the direction of the will of the employer terminating the employment contract does not matter: he is obliged to terminate the employment contract with the employee in in accordance with paragraph 5 of Art. 77 of the Labor Code of the Russian Federation. At the same time, the law does not make any clarifications regarding the nature of the work for which the employee is elected. Therefore, the considered grounds for terminating an employment contract are subject to application when an employee is elected to any elective job or position (head of a commercial organization, teacher of a higher professional education institution, etc.).

12. Termination of the employment contract under paragraph 5 of Art. 77 of the Labor Code of the Russian Federation may take place, provided that the resigning employee does not object to this. If the employee insists on dismissal of his own free will, the employment contract with him is terminated on this basis (see Article 80 of the Labor Code of the Russian Federation and commentary to it).

13. On changing the employment contract due to a change in the owner of the property of the organization, a change in the jurisdiction (subordination) of the organization or its reorganization, see Art. 75 of the Labor Code of the Russian Federation and commentary to it.

14. For changes in the terms of an employment contract, see Art. 74 of the Labor Code of the Russian Federation and commentary to it.

15. On the transfer of an employee to another job in accordance with a medical report, see Art. 73 of the Labor Code of the Russian Federation and commentary to it.

16. On the concept of transfer to another locality, see art. 72.1 of the Labor Code of the Russian Federation and commentary to it.

17. On the termination of an employment contract due to circumstances beyond the control of the parties (clause 10, article 77), see Art. 83 of the Labor Code of the Russian Federation and commentary to it.

The accountant of our trade enterprise (we sell heating boilers, the staff of 12 people) expressed a desire to move to another enterprise. She asked us to carry out the dismissal under Part 1, Clause 5, Article 77 of the Labor Code of the Russian Federation. But our director said that if there is no notification of the transfer from the new head, then he does not intend to terminate the contract with her on this basis. Tell me, do we have the right to refuse her and appoint 2 weeks for working off, so that she transfers all the cases to a new employee? If yes, then would it be lawful to dismiss her of her own free will (paragraph 3 of part 1 of Article 77 of the Labor Code) in 2017?

Answer

According to paragraph 5 of Art. 77 of the Labor Code of the Russian Federation, dismissal of one's own free will, that is, in connection with the transfer to a new organization (obtaining a position), is possible only if a certain procedure is followed. It obligatory provides that the dismissed accountant will require a written notice from the new employer. The document should indicate that she is given a position, and the head is ready to accept her by transfer.

This information is necessary, as in the future it will be entered in the work book in the new organization. Paragraph 5 of Art. 77 of the Labor Code of the Russian Federation states: "the basis for termination of an employment contract is the transfer of an employee at his request or with his consent to work with another employer or transfer to an elective job (position)".

The next condition was that the employee had to write a written statement addressed to the director with a request to dismiss her in connection with the transfer. If two conditions are not met (there is no notification and application), another rule comes into force. The head has the legal right to dismiss her, referring to paragraph 3 of part 1 of article 77 of the Labor Code, the norm of the article is also valid in 2017: “The basis for terminating the employment contract is the termination of the employment contract at the initiative of the employee.”

As for working off - from the moment of filing an application for dismissal (no matter for what reason), the employee is required to work for 14 days. But according to the new amendments made in 2017, dismissal of one's own free will without working off is still possible. True, for this it is necessary to understand whether your employee will be assigned to the so-called “preferential category”. According to paragraph 3 of Art. 80 of the Labor Code of the Russian Federation: “in cases where the employee’s application for dismissal on his own initiative (of his own free will) is due to the impossibility of continuing his work (enrollment in an educational organization, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts containing labor law norms, local regulations, terms of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee's application.

An employment contract can be terminated by agreement between the employee and the employer. Such dismissal is regulated by article 78 of the Labor Code of the Russian Federation. Find out what the law says and read expert opinions.

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What are the features of dismissal by agreement of the parties: Labor Code of the Russian Federation

The basis for termination of the employment contract (TD) may be the agreement of the parties. The agreement of the parties means that the employee and the employer, who are the parties to the employment relationship, have come to a certain agreement. They decided to terminate the TD on terms that were acceptable to both parties.

What is the difference between dismissal by agreement and the usual

By mutual agreement, the TD can be terminated at any time. For example, when an employee is present at his workplace, is on any type of leave (regular, unpaid, educational, child care), on sick leave, and so on.

The procedure for dismissal by mutual agreement often raises many questions from employers and personnel officers. Expert recommendations on the application of the dismissal article by agreement of the parties to the Labor Code of the Russian Federation will help to understand the sequence of the procedure.

TC dismissal by agreement of the parties: is the employee entitled to any additional payments, other than those guaranteed by law

Upon termination of the TD, the employee must be paid wages, compensation for unused vacations, guaranteed bonuses, and the like.

Labor Code: dismissal by agreement of the parties does not oblige the employer to pay additional amounts to the employee, but such payments may be provided for in the text of the written agreement. Their size can not be tied to certain types of payments. For example:

• You can not indicate that compensation in the amount of three salaries will be issued.
• You can make the wording: "Pay compensation in the amount of 150 thousand rubles."

If the organization has a collective agreement, it may provide for additional types of payments upon dismissal of employees.

★ The expert of "System Kadra" will tell you how to determine the amount and pay severance pay upon dismissal by agreement of the parties

Article of dismissal by agreement of the parties to the Labor Code of the Russian Federation: how it is applied in practice

It is also possible to dismiss by agreement of the parties by legal means. For example:

1. An agreement is concluded between the employee and the employer to terminate the TD by agreement, this document must be prepared in writing.
2. The parties agree on the date of termination of relations.
3. The employee and the employer agreed on the basis for the termination of relations under paragraph 1 of Art. 77 (Article 78) of the Labor Code of the Russian Federation.
4. The document was signed by the parties simultaneously at the time of its conclusion.

The Labor Code, by agreement of the parties, Article 78 of the Labor Code of the Russian Federation does not regulate the special procedure for the procedure. But you can do it like this:

Step 1. After the conclusion of a written agreement, prepare an order.

Step 2. Based on the order, make an entry in the work book and duplicate it in the employee's personal card.

Step 3. On the day of termination of the relationship, give the employee a full calculation and documents that are related to work.

Positive aspects of dismissal by agreement of the parties: article of the Labor Code

For an employee

Termination of the TD by agreement between the employee and the employer has a number of advantages. So, for an employee, an article of the Labor Code, by agreement of the parties, dismissal allows you not to work for two weeks, as in case of dismissal of your own free will.

For the employer

Labor Code of the Russian Federation: dismissal by agreement of the parties is also beneficial for the employer, who does not have to coordinate the termination of the TD with the trade union organization. In addition, the agreement cannot be canceled unilaterally. This is the most conflict-free way to terminate an employment relationship, if you follow the procedure for dismissal.

The agreement of the parties means that the employee and the employer, who are the parties to the employment relationship, have come to a certain agreement on the termination of the TD on terms that suit both parties. Dismissal on this basis has a number of features and to a certain extent is beneficial for both the employee and the employer.