They don’t fire at their own request, what to do: do they have the right and how to quit / finhow.ru

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Termination of official activity at one's own request requires filing an application addressed to the director of the organization at least 2 weeks before the date of dismissal. It is not necessary to indicate the reasons for terminating the activity in the document; the phrase “I ask you to resign at your own request” is sufficient. The applicant's signature and the date of preparation of the document must be indicated.

After registering the application, the enterprise must issue an order to terminate official activity. In the paper you need to indicate the details of the application for dismissal and familiarize the citizen with the document, with the latter’s signature.

On the day of dismissal specified in the application, the work book is returned to the former employee with a note of voluntary dismissal, order number and date.

A calculation is made that includes the following funds due to the employee:

wage;
monetary compensation for unrealized vacation days;
other monetary payments established by the employment agreement.

The work period is calculated from the date of application and is 2 weeks. By mutual agreement between the employer and the former employee, such a period can be shortened or canceled.

What does the law say?

A subordinate who resigns of his own free will must notify the manager 14 days in advance in accordance with Part 3 of Article 80 of the Labor Code (Labor Code of the Russian Federation). The countdown of days begins the day after the application is accepted.

The boss does not have the right to detain a resigning employee for more than 2 weeks. According to the law, it is only required to notify management of the decision to leave by handing the application personally to management or registering it in the office, where it will be assigned an incoming number. Once the manager is notified of the termination, the individual may terminate the employment relationship on that date. In this case, the employee is required to pay monetary compensation and issue documents.

For reference! Article 37 of the Constitution of the Russian Federation states that the director cannot force a subordinate to work in a place from which the employee wants to leave. What to do if the contract is not terminated?

However, if the company does not want to accept the application, then the subordinate still needs to notify the boss in any other way so that he is not fired for absenteeism.

Options for submitting an application if the employer does not want to fire an employee:

Through a secretary or office with the entry number affixed not only on the original document, but also on its copy, which will remain with the employee.
Send by registered mail with notification.

After this, all you have to do is wait until the warning period expires, pick up the payment and the necessary documents

It should be remembered that the 14-day countdown day will begin after the date when the letter is delivered to the manager.

Sometimes, if there is a staff reduction, some employees want to quit early. If the director does not want to dismiss a subordinate due to reduction, and he wrote a letter of resignation of his own free will before the expiration of 2 months, then the procedure will be the same as for the usual termination of the contract if the boss avoids answering and does not accept the paper. But if the employer received the application and refused to lay off the employee ahead of schedule, then nothing can be done here. The director has the right in this case not to terminate the contract (Article 180 of the Labor Code of the Russian Federation) or to offer to leave by agreement of the parties.

If the director does not want to terminate the contract due to layoffs, but offers to leave of his own free will, then you can send him a paper in which the employee must indicate that he is aware of his rights and refuses to leave.

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The employee does not want to leave

How to fire an employee if he does not want to quit? An employee’s refusal to resign voluntarily is absolutely legal. But if an employer needs to part with an employee, there is a legal way. This method represents the initiative to terminate the activity on the part of the employer and employee.

The launch of the dismissal procedure on the basis of a peace agreement begins with a discussion of all conditions. Next, a document is drawn up, indicating the wording “by agreement of the parties”, the conditions, the date of preparation, the day of completion of the activity, and the signatures of the parties. The organization issues an order to terminate the employment relationship and familiarizes the employee with this document against signature.

On the day of dismissal, the citizen is given a work book with the corresponding entry, date and order number, and is given a copy of the agreement. The funds due to the person are paid. Quite often, when using the method of dismissal by amicable agreement, the employer offers the former employee a lump sum payment to alleviate moral damages. The amount of compensation is negotiated privately.

Legal methods of dismissal

In the event of wrongful termination, an employee has the right to sue the employer, so it is important to act within the law. However, the Labor Code also took care of the rights of managers and allows them the following actions:

Reaching a peace agreement . This is the best option because it offers certain advantages for both the employer and the employee. The first will have confidence that a claim will not be filed against him, and the second will avoid a negative mark in the work book. You can invite the employee to write a letter of resignation on his own initiative, or you can draw up a mutual agreement to terminate the employment relationship. In the second case, management is obliged to pay the employee all due compensation. However, not every employee will agree to such an offer. In case of refusal, it is not possible to remove him from office in this way.
Dismissal for serious misconduct. The employer has every right to take disciplinary action against an employee for a gross violation on his part. In some cases, even dismissal is possible. At the same time, the list of grounds is quite extensive, so the manager will have no doubts about how to fire an employee who does not want to leave if he commits gross violations or does not fulfill his duties.
Staff reduction . If the main purpose of removing an employee from a position is to save material resources, then this basis can be used. However, it is important to remember that this method requires strict adherence to the rules and is associated with considerable financial costs for the employer.
Removal from office during the probationary period . When you need to fire an employee if he does not want to quit, having a probationary period greatly simplifies the matter. However, even in this case, many nuances and features must be taken into account.
Repeated violation of labor discipline . Even if the employee has not committed serious gross misconduct for which he can be immediately removed from his position, he can still be dismissed “under the article” if several disciplinary sanctions have been applied to him.
Inconsistency with the position held . If, during the certification process, the commission reveals that the employee has insufficient qualifications, the boss has the right to fire him.
Dismissal form for managers . This method is only relevant for employees holding managerial positions. When a problem arises and you need to decide how to fire an employee if he does not want to write a statement, leaving by changing ownership is suitable. Sometimes management deliberately changes ownership in order to get rid of some employees.
Changing the terms of the employment agreement . Management may change working conditions for some positions or the entire company and make the work of specialists unprofitable. If employees do not agree to work under the changed conditions, the manager will be able to fire them subject to certain rules.

It is important to remember that there are special categories of employees who cannot be dismissed at the personal request of the manager under any circumstances.

A pregnant woman cannot be removed from office, even if she has committed a gross violation. Also, the boss has limited options in relation to an employee who has a small child under 3 years old, or an employee who is the only breadwinner in the family. Each of the listed grounds has its own nuances and features, so they need to be studied in more detail separately.

At your own request or agreement

Very often, employers do not know how to fire an employee who does not want to leave on his own or ask him to leave by mutual agreement of the parties. However, there are methods that can be used to ensure that an employee makes such a decision, even if he is not inclined to agree with his superiors.

To begin with, you should politely clarify with the employee why he does not want to change his place of work and ask how the employer can help him. Perhaps the employee will agree to an additional amount accrued by agreement of the parties, or he needs positive recommendations that may be useful in future employment. However, not every employee will accept such conditions.

In some cases, managers begin to threaten employees and remind them that a negative entry in the work record and a bad recommendation will greatly complicate employment.

However, such methods are illegal. Instead of agreeing to dismissal at personal request, the employer may be sued.

It is best to use the methods proposed by law. The manager has the right to keep records of the arrival and departure of all employees, as well as issue orders in writing with acceptance certificates and record all work results and errors. In this case, the employer will be able to find a suitable reason for dismissal.

In addition, there is another relevant method when the manager discusses how to competently fire an employee if he does not want to quit. It is very convenient if the employment contract clearly states the working conditions, but there is the possibility of certain adjustments. For example, management may set an employee a low salary or may not indicate the exact location of work within a specific area.

Then management can deprive the worker of bonuses or often transfer him to a new place without his personal consent. The last option is relevant if there are several representative offices of the company in the city, for example, if the employee holds the position of sales consultant, and the company has many stores.

The above methods are legal, but they do not always give the desired result. Management must remember that even resignation on personal initiative can be challenged in court if the employee was forced to resign. If the employer has achieved an agreement between the parties, it is almost impossible to challenge the dismissal.

For gross violation

There are many reasons why an employee may be dismissed for serious misconduct. However, each such violation must be certified in a strictly established manner. There are the following types of inconsistencies for which an employee can be fired after a one-time occurrence:

Truancy . The concept implies the absence of an employee from his place for more than 4 hours in a row, provided that he does not have any good reason for this.
Intoxication . Coming to work under the influence of alcohol or drugs is a sufficient argument for removing an employee from his position. In this case, the employer must attest to the fact of intoxication.
Disclosure of official secrets . In this situation, the boss must have sufficient evidence that access to information occurred while the employee was performing his official duties.
Theft or damage to property . In this case, the fact that the theft was committed at the workplace must be proven. Of course, a corresponding court decision is necessary.
Failure to comply with labor safety rules . Such a violation is valid only if labor protection conducted an investigation and the offense entailed serious consequences or was at risk of their occurrence.

The presented list contains all the grounds under which a person can be dismissed in the event of a one-time violation. In this case, the manager is obliged to take the following actions:

Conduct an official investigation into the circumstances that occurred.
Ask the employee to write an explanatory note.
Issue an order to remove the offender from office.
Give the employee the funds and documents due to him.

If dismissed for committing a gross violation, the decision can be challenged by the employee in court. It is also important to remember that an employee cannot be removed from duty if absenteeism occurs for a valid reason. When the state of intoxication has not been certified by a doctor and the employer does not have the appropriate certificate, the employee also cannot be fired.

Notification to the employee of dismissal and issuance of the documents due to him must be made in the presence of witnesses and with their signatures. If the employee refuses to accept the documents, they are required to witness his decision.

Reasons to fire

In addition to peaceful ways to terminate an employment relationship with an employee, there are ways to dismiss on the basis of violations.

The following reasons are considered as such:

inadequacy for the position held;
negative results during certification;
disciplinary violations;
failure to fulfill prescribed duties;
intoxication, theft, damage to the tenant's property;
failure to comply with the internal regulations of the enterprise;
disclosure of trade secrets.

If he's playing truant

To legally dismiss an employee for violation of discipline through absenteeism under the following conditions:

the period of absence is more than 4 hours in a row;
absence of the employee from his assigned workplace for the prescribed period;
lack of a valid reason explaining absenteeism.

The presence of all of the above conditions gives the employer the right to dismiss the employee. The procedure involves the following steps:

Drawing up an absenteeism report indicating the employee’s data, the date and time of his absence from work, and the signatures of 2 witnesses to the violation of discipline.
Requirement to explain the reasons for the citizen’s absence from service.
Drawing up a report to the director in any form about the presence of absenteeism.
Issuance of an order to terminate the employment agreement listing evidence of absenteeism. The dismissed citizen should be familiarized with the order within 3 days from the date of its publication.
Making the appropriate entry, order number and date of dismissal in the citizen’s work book.
Issuance of labor and payment of the amount due to the former employee on the day of dismissal from service.

What to do if you don't get fired?

Imagine this situation: you decided to quit your job of your own free will (you found a new job or were simply tired of the old one), wrote a statement, and the boss refuses to fire you - they say, you won’t leave here, and that’s it. Is this legal? What to do if you don't get fired ?
Let's turn to the Labor Code, more precisely, to Article 80, which talks about termination of an employment contract at the initiative of the employee (that is, dismissal at his own request). If you need to resign voluntarily

, you warn the employer about this in writing at least two weeks before dismissal.

Thus, from the day the employer received your resignation letter, you must work for two weeks, and when the notice period for dismissal expires, you have every right not to go to work anymore

. On the last working day, the employer is obliged to issue you a work book and other work-related documents upon your written application, as well as make the final payment.

Some employers, when submitting an application, refuse to dismiss the employee at his own request. But this is illegal: the very wording “termination of an employment contract at the initiative of the employee” suggests that the employer’s opinion does not matter much here. With your statement, you are not asking him for permission to quit: you are simply presenting him with a fact in advance

so that he can find a replacement for you in two weeks.

What to do if you don't get fired? First you need to record the fact of filing an application.

, registering it with the personnel department or office and making sure to make a copy. But it happens that the application is refused to be registered.

In this case, you need to go to the post office and send the application to the company’s address by certified registered mail with acknowledgment of receipt and a list of the contents

. Then you will have two documents in your hands confirming that you notified the employer of your dismissal: a receipt for sending the letter, and after receiving the letter by the addressee, a postal notice signed by him.

Please note that in this case, two weeks of work will be calculated not from the moment the letter is sent, but from the moment it is received by the addressee

. Therefore, you need to count 14 days from the date of notification of receipt of the letter by the addressee - if you do not go to work earlier, this will be regarded as absenteeism.

Let’s say your application is accepted, on the last working day you come to get your work book and paycheck, but they refuse to give you the money and documents you are owed.

. What to do if they don’t dismiss you completely, that is, they refuse to pay you off and let you go on all fours?

If they don’t give you the work permit, there are two ways to solve the problem: the labor inspectorate and the court. First, write an application to the labor inspectorate

, it will be reviewed within a month, after which the inspection will issue mandatory instructions to eliminate the violation of the law.

Then your employer will have two options: either give you your work book, or be punished with a fine or disqualification. Sometimes it’s enough just to threaten the labor inspectorate

, and it doesn’t come to a statement.

You can also sue for deprivation of your right to work

(because without a work book you cannot enter into an employment contract with a new employer, because it is included in the list of mandatory documents for employment). You can demand not only the return of your work book, but also compensation for the delay in documents.

So, if they are not fired at their own request, the law is on the employee’s side

: they have no right not to terminate the employment contract. In this case, it is necessary to record the fact of filing an application using one of the methods described above, work for two weeks, and then demand payment and documents from the employer - if not in an amicable way, then through the labor inspectorate or court.

How to force someone to write a statement

There is one way, for non-compliance with the position held, but this requires an existing disciplinary sanction for the same reasons.

Registration of dismissal includes collecting evidence of a repeated violation, checking the job description, explaining the reasons for non-fulfillment of duties by the employee in writing, and issuing a dismissal order.

After registering the order, a corresponding entry is made in the work book. The dismissed person is paid all the money due, is given a work book, and the former employee leaves his previous place of work.

An employee has gone missing

Dismissal of an employee who does not appear at work for a long time is possible only if the reasons for the absence or attendance of the citizen at work are clarified.

It is required to indicate missed working days in the timesheet and make a request at the place of registration of the citizen. If there is no response, a similar letter is sent to the employee’s place of residence every 2 weeks. If, after 6 months, none of the requests have been received by the addressee, personnel officers draw up an act of non-receipt of letters by the citizen, and the manager writes a statement to the police about the missing person.

If the employee does not appear within a year, the senior management of the enterprise should draw up a statement declaring the person missing and submit the document to the judicial authority.

After the decision of the arbitration court, a dismissal order is issued for the enterprise. The labor report contains a mark indicating the end of service at the initiative of the employer on the basis of a court decision. All funds due and the work book of the missing employee are stored in the organization’s archives for the next 75 years.

Legislation of the Russian Federation on the right of an employee to dismiss at his own request

The employee’s rights to work, free disposal of it and the inadmissibility of forced labor are enshrined in Part 2 of Art.
37 of the Constitution of the Russian Federation. Based on these norms, it is obvious that no employer should interfere with the exercise of an employee’s right to dismissal on his own initiative, the procedure for which is enshrined in Art. 77 and 80 of the Labor Code of the Russian Federation. ConsultantPlus tells us in its ready-made solution how to formalize the dismissal of an employee at his own request. If you do not yet have access to the ConsultantPlus system, you can obtain it free of charge for 2 days.

Additional clarification regarding voluntary dismissal is provided by Rostrud’s letter “On the procedure for dismissal...” dated 09/05/2006 No. 1551-6. This letter states that dismissal of an employee on his own initiative is permitted, including during the periods:

He is on vacation.
He is on sick leave.