On termination of the employment contract form t 8. Form of the order to dismiss at will
The Labor Code uses several concepts: "termination of an employment contract", "termination" and "dismissal".
"Termination of an employment contract" has the broadest content. The grounds for "cessation" are any legal fact, both an act and an event.
Actions are vital factors that are the result of the volitional (conscious) activity of people. These actions include: employee initiative (); employer (downsizing, application in the form of dismissal, etc.); third party (conscription for active military service, court decision, etc.).
Events are legally significant facts that occur regardless of the will of people.
The concept of "dismissal" is applicable to almost all cases of termination of employment, except if one of the parties - an individual ceases to exist, it is impossible to "dismiss" the deceased employee.
The concept of "termination" is applicable to cases where the initiator of the termination of the employment relationship is one of the parties, the employer or the employee.
Regardless of the reason, the termination is issued by order. The form of the order to dismiss an employee (employees) is unified and approved by the Decree of the State Statistics Committee of the Russian Federation. When using unified forms No. T-8 and No. T-8a, the terminology is already included in the title and text of orders, and the rules for their execution are defined in the "Instructions for the application and filling out forms of primary accounting documentation for accounting for labor and its payment", attached to " Album".
They are used to register and record the dismissal of an employee (s). Filled in by an employee of the personnel service, signed by the head of the organization or a person authorized by him, announced to the employee (s) against receipt. On the basis of the dismissal order, an entry is made in (form No. T-2 or No. T-2GS), a personal account (form No. T-54 or No. T-54a), a work book, a settlement is made with the employee in the form No. T-61 " Note - settlement upon termination of the employment agreement (contract) with the employee.
As a general rule, the day of dismissal of an employee is the last day of his work.
In all cases, upon termination of the employment contract, the employer is obliged to issue to the employee on the day of dismissal (the last day of work) a work book and, upon the written application of the employee, copies of documents related to work.
If it is impossible to issue a work book on the day of the employee's dismissal due to the absence of the employee or his refusal to receive the work book in his hands, the employer sends the employee a notice about the need to appear for the work book or agree to send it by mail. From the date of sending the notification, the employer is released from liability for the delay in issuing a work book.
The legal facts that serve as the grounds (reasons) for the termination of employment relations must be documented in the prescribed forms, with strict observance of the necessary procedures. The set of such documents is different - for each case of termination of employment contracts for a certain reason and for a certain category of workers.
The general grounds for termination of an employment contract are contained in Art. 77 of the Labor Code.
As an example, we give samples of orders for the dismissal of employees containing various wordings (depending on the grounds for dismissal):
We are sure that many of you have repeatedly filled out an order to dismiss an employee (unified form No. T-8 “Order (order) on termination (termination) of an employment contract with an employee (dismissal)”, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. one). And, most likely, every time you "stumbled" on the graph:
We will talk about what the Goskomstat employees considered “unnecessary” and what needs to be “crossed out” in our article.
Please note that there is no legal answer to this question. As, however, there are no official clarifications in this regard. Therefore, no inspection bodies will be able to say that in this column the order is filled out incorrectly (no matter how it is filled out). There are several versions of the design of "problem" lines, justified and not very well, which are offered by experts. You can voice them to the inspectors during the inspection if they have questions. In addition, the arguments we have collected in favor of several versions will help you choose one of them in order to follow it and draw up all such orders in your enterprise in a uniform way.
Version 1
Many experts are sure that both lines of the order column should be filled in (indicate the date and number of the employment contract at the top, and the date of dismissal of the employee, that is, the last day of his work, at the bottom). At the same time, nothing needs to be crossed out, since (again, according to experts), the form of the order was drawn up incorrectly.
Version 2
As we remember, prior to the adoption of the Labor Code in 1992, no labor contracts were concluded with employees. Moreover, even after the introduction of such a duty, “old” workers could decide for themselves whether to conclude an employment contract with their employer or not. Therefore, there is a version that if an employment contract was not concluded with the employee, then the phrase “Terminate the employment contract” is crossed out and the date of dismissal is filled in.
Version 3
But the versions don't end there. There is an opinion that termination, termination of an employment contract and dismissal of an employee are completely different things.
The legislator uses the term "termination":
- in cases with a fixed-term employment contract (Article 79 of the Labor Code of the Russian Federation),
- under circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation),
- in case of violation of the rules established by law for concluding an employment contract (Article 84 of the Labor Code of the Russian Federation).
Termination of an employment contract appears in the cases provided for in the articles:
- 78 (by agreement of the parties),
- 80 (at the initiative of the employee) and
- 81 (at the initiative of the employer).
"Firing" there is a place to be with a disciplinary sanction (Article 192 of the Labor Code of the Russian Federation).
Thus, if the employment contract terminates, then the line “Terminate the employment contract ...” should be filled in the order and the line “dismiss ...” should be crossed out (see Example 3).
And vice versa should be done when terminating an employment contract or dismissing an employee (see Example 2).
Everything would be fine, but there are some inconsistencies here.
Firstly, article 77 of the Labor Code of the Russian Federation lists the general grounds for terminating an employment contract (which includes the grounds for its termination). That is, it turns out that “termination” is a broader concept, which includes “termination”.
Secondly, the legislator constantly confuses the concepts of "dismissal" and "termination". So, for example, according to article 80 of the Labor Code of the Russian Federation, an employment contract terminated at the initiative of the worker. But at the same time, the employee writes an “application for dismissal of his own accord."
Thirdly, we know that entries in the work book are made on the basis of an order and the wording of the entry must clearly comply with the Labor Code of the Russian Federation. And in the Instructions for filling out a work book (approved by the Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 No. 69, hereinafter referred to as the Instruction), legislators propose the wording “ fired voluntarily" (when the Labor Code of the Russian Federation refers to termination employment contract) or, for example, " fired due to non-election to the position” (when there is termination employment contract).
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Part 1 of Article 83 of the Labor Code of the Russian Federation:
An employment contract is subject to termination due to the following circumstances beyond the control of the parties:
1) conscription of an employee for military service or sending him to an alternative civilian service that replaces it;
2) reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court;
3) non-election to office;
4) condemnation of the employee to a punishment that precludes the continuation of the previous work, in accordance with a court verdict that has entered into force;
5) recognition of an employee as completely incapable of work 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;
6) death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as dead or missing;
7) the onset of emergency circumstances that prevent the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a public authority of the corresponding subject of the Russian Federation;
8) disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract;
9) expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, the right to carry weapons, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of the employee to fulfill the obligations under the employment contract;
10) termination of access to state secrets, if the work performed requires such access;
11) cancellation of a court decision or cancellation (recognition as illegal) of a decision of the state labor inspectorate on the reinstatement of an employee at work;
12) bringing the total number of employees who are foreign citizens or stateless persons into line with the allowable share of such employees established by the Government of the Russian Federation for employers engaged in certain types of economic activity on the territory of the Russian Federation.
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Part 1 of Article 84 of the Labor Code of the Russian Federation:
An employment contract is terminated as a result of a violation of the rules for its conclusion established by this Code or other federal law (clause 11 of part one of Article 77 of this Code), if a violation of these rules excludes the possibility of continuing work, in the following cases:
the conclusion of an employment contract in violation of a court verdict depriving a particular person of the right to hold certain positions or engage in certain activities;
conclusion of an employment contract for the performance of work that is contraindicated for this employee for health reasons in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation;
the absence of an appropriate document on education, if the performance of work requires special knowledge in accordance with a federal law or other regulatory legal act;
the conclusion of an employment contract in violation of the decision of a judge, body, official authorized to consider cases of administrative offenses, on disqualification or other administrative punishment, excluding the possibility for the employee to fulfill the obligations under the employment contract;
in other cases stipulated by federal laws.
Version 4
The only thing that does not cause controversy is the termination of the employment contract due to the death of the employee. Here, both the Labor Code of the Russian Federation and the Instruction are in solidarity.
As a result, there is another version (already the fourth) of drawing up a dismissal order: the only case when the line “Terminate the employment contract ...” is filled in is either the death of an employee, or his recognition as dead or missing.
Hard choise
However, if upon termination of the employment contract for other reasons (Articles 79, 83 and 84 of the Labor Code of the Russian Federation) we cross out the line “dismiss ...”, then there will be nowhere to put the date of dismissal in the order! After all, the date of drawing up the order does not always coincide with the date of dismissal (for example, in the same case with the death of an employee).
So, having considered all the above opinions regarding filling out the order to dismiss the employee, the author is inclined to the first version - that the officials made a mistake when drawing up the form of the order. Thus, the author recommends filling out both lines, unless, of course, an employment contract has been concluded with the employee.
The purpose of this document is to terminate the employment relationship. The unified form of the order to dismiss at will (No. T-8; No. T-8A) was approved. filled in with one employee, No. T-8a - upon termination of working relations with a group of workers.
It is also possible to use a freeform form. The main thing is that the order be issued in compliance with the requirements for primary documents. You can download the form of the order to dismiss at your own request in the article.
How to fill out a resignation letter of your own free will
The form is compiled by an employee of the personnel department of the enterprise. It is then signed by the director of the company. When terminating an employment contract with a financially responsible person, an acceptance certificate must be attached to the order, confirming the absence of complaints against the employee holding a responsible position.
Filling out the order must be done in compliance with all the requirements for its execution. The form must contain the following information and details:
- the top line of the document indicates the name of the employing organization or the last name, first name, patronymic of the head - an individual entrepreneur;
- then the number of the order and the date of its publication are indicated;
- in the line “Terminate the employment contract from ...” the dates of the conclusion of the employment contract and its termination are indicated;
- in the next line, information about the employee is written: last name, first name, patronymic of the person leaving in the genitive case, his position and personnel number;
- in the line “Basis for termination of the employment contract”, the basis for termination of the employment contract is indicated - “at the initiative of the employee, clause 3, part 1, art. 77 of the Labor Code of the Russian Federation ";
- then the basis for issuing the order (statement of the employee) is indicated;
- signature of the director, seal of the organization;
- the wording "acquainted", the date of acquaintance and the signature of the employee.
The employee must be familiar with the document. On its basis, entries are made to and into the employee, and a calculation is prepared in the accounting department. This document must be registered in the register of orders.
What date to indicate in the order
As a general rule, a period of two weeks is set for the notice of departure. Therefore, the employee must notify the manager of his departure from the organization two weeks in advance by providing him with an application. It indicates the last business day. This date should appear in the order.
Therefore, it is important to correctly indicate the date of the last working day in the application:
- If an employee writes in the letter of resignation the wording: “I ask you to dismiss me from March 16, 2016”, then on March 16, 2016 he will already be considered not working in the organization. The day of dismissal will be the previous date - 03/15/2016, which should be indicated in the order of the head.
- If he writes: “I ask you to fire me on 07/20/2016”, then this number will be considered the last working day. This date should be indicated in the order.
If an employee quits at will, then the employer needs to draw up an order, calculate wages and reflect the dismissal record in the work book. Voluntary dismissal is the most common reason for termination of an employment relationship. The dismissal procedure takes place in accordance with the current version of Article 80 of the Labor Code. How is the order and other documents drawn up?
How is the dismissal process?
Article 80 of the Labor Code of the Russian Federation.
The motivation for which a citizen decided to quit does not matter, whether it is a change of job or retirement. The result of these procedures is the full calculation of the employee and the issuance of a work book to his hands.
The employee must send the application in advance, no later than 14 days before the date of the proposed dismissal. The countdown starts from the next day after the application is accepted, that is, the work book is issued on the 15th day after the date the application was submitted to the management. At your own request, you can terminate the employment contract ahead of schedule without observing the notice period. If a mutual agreement is reached between the director and the worker, then the working period of 14 days may not be observed, the order may be issued even the next day after the application is submitted.
Stages of dismissal step by step:
- The employee must independently contact the employer and draw up a letter of resignation of his own free will.
- The employer is obliged to accept the application and issue an order for dismissal.
- Based on the order of the head and the completed form of the dismissal order, the employer enters the data in the employee's personal file. After making an entry in the work book, a citizen is considered officially dismissed.
By the way, you can apply for termination of an employment contract even while on vacation or on sick leave. In this case, the working period of 14 working days will be counted from the date of filing the application.
Features of drawing up an order
The form of the order was previously approved by the Decree "On the Approval of Unified Forms" of January 2004. The voluntarily dismissal order had the approved form T-8 if only one employee is calculated, and T-8a if more than one person has to be fired. Although its use is currently optional, many companies use this form for accounting purposes. In personnel records management, a sample order for dismissal of one's own free will is arbitrary, the main thing is that the necessary information is present in the document.
The order must contain the following information:
- Information about the employer's company (details, OKPO, form for OKUD address, name).
- Account number of the document and its name.
- The date the document was created.
- The number of the employment contract (if any).
- The date of the scheduled last business day.
- Name and position of the dismissed person.
- Grounds for dismissal. This paragraph is always written - a personal statement.
- Full name and signature and seal of the head.
- The signature of the employee, certifying that the citizen is familiar with the document.
In the T8 form there is a column: "Motivated opinion of the elected trade union body in writing." This mark is used if the enterprise has a trade union. The chairman of this body should familiarize himself with the document, indicate his comments, if necessary, and sign.
Most enterprises use an electronic sample of filling out an order, this is convenient, since there is no need to draw up a document, it is enough to enter only the worker's data and print the form. However, it is allowed to enter data by hand.
Can a layoff be cancelled?
The order itself is stored in the personnel department, and urgent reporting is carried out on these documents. Also, at the personal request of the employee, a third copy can be provided, this document remains with the dismissed employee. If a person was absent from work or did not have the opportunity to sign a document, then it is still published, but it should contain a note about this.
The order is drawn up on the day of calculation, and if the employee has changed his mind before that day, then they do not have the right to dismiss him. Exceptions are cases when another employee has already been invited to this place (the invitation is drawn up in writing), even if the latter has not yet been accepted into the state. For example, even if an employee decides to withdraw the application before the order is issued, he cannot be fired.
Feedback sample.
It is also a violation of the law to dismiss the employee without the knowledge of the employee. However, when the manager has already found another specialist for the vacant position in the order of transfer from another organization, and he has submitted documents for admission to the state, the dismissed person does not have the opportunity to withdraw his application.
Employers mainly work with the involvement of hired labor. Therefore, they must formalize the staff, that is, issue an order for admission, and in case of dismissal, respectively, for the dismissal of the employee. Often, labor disputes arise between the parties when employees believe that their dismissal is not lawful. Therefore, in order not to be in such a situation, you need to figure out how to fire a person according to the law.
Main reasons for dismissal
One of the factors ensuring that the correct procedure for dismissing people is followed is the basis for the termination of the employment relationship.
There are several reasons why a person can be fired:
- the initiative of the employed person;
- agreement;
- downsizing;
- "according to the article", that is, for some misconduct;
- after the end of the contract.
The first three bases are the most common.
Basically, a person independently wants to quit, and accordingly writes a statement. He must notify the manager of his intention to leave the company 2 weeks in advance. Often this period is referred to as the period of working off. Fourteen days are counted from the day following the notification. Early dismissal is possible:
- you can not continue to work because of retirement, study;
- employer's failure to comply.
If a person personally expressed a desire to quit, he has the right to withdraw the application. But, if not yet accepted his replacement.
After two weeks, a person has the right not to go to his former place of work. You can continue to work if all three conditions work together:
- two weeks have passed;
- the contract has not been terminated;
- There are no requests for termination of employment.
This option is beneficial to both parties. The employer has time to persuade the person to stay or find another person. And the resigning person reserves the right to withdraw the application.
It is possible to terminate the employment relationship by agreement of the parties. With a joint agreement, the dismissal of a person is allowed under certain conditions. This method is beneficial to both parties:
- An agreement takes place when the employer is interested in the departure of a person, but there are no legal grounds to expel him. He can be sure that the former employee will not go to court with a lawsuit if all agreements are fulfilled.
- For the employee, this method is advantageous for the opportunity to receive additional monetary compensation, in addition to the money required by law.
Reducing people, the employer is obliged to notify them about the upcoming actions 2 months in advance. Do this in the form of a notice or a special order. On it, the reduced person must sign and date the acquaintance. It is from this date that the countdown of the statutory period begins.
Important! With the written consent of a person, he can be fired without documentary notice.
With this method of dismissal, people are paid severance pay. When, within 2 months from the moment of reduction, a person is not employed and is registered with the employment center, he is entitled to an additional severance pay. But for this, a dismissed employee with a certain package of documentation must contact the former employer.
How is an employee's application filed?
The application for dismissal is written by the employee, it is a mandatory document. The legislation does not establish its specific form. But it should be written, adhering to certain rules:
- completed in writing, by hand;
- the application must contain a clear indication of the intention to quit;
- it must indicate the specific date of dismissal and the signature of the employee.
By law, the employee is required to notify the employer of the intention to quit in writing two weeks in advance. If the date of dismissal is not indicated in the application, the employer can independently determine it according to the general norm. But the presence of a date in the application will help to eliminate various misunderstandings. It is allowed to submit an application indicating the intention to leave the enterprise:
- personally;
- mail.
It is possible to indicate in the application a request to be fired without working off for two weeks. In some cases provided for by law, the employer cannot refuse. Important! The application must indicate the specific number of dismissal, the wording "dismiss from" is not used.
How to draw up a letter of resignation?
Two weeks after writing the application, the moment of direct dismissal comes. The personnel department specialist must prepare the appropriate order. There are two forms of such a document:
- T 8 - for 1 person;
- T 8a - for a group of people.
On the employee's last working day, the employer must:
- print an order
- make an entry in the work book;
- issue a full account of the employee.
The notice of termination contains the following information:
Above is the name of the company. For example, Folk Sausages LLC.
Be sure to put the number and date of its compilation. In the line "Terminate the employment contract from" it is written: the number and date of the relevant document, and the date of dismissal is set.
Filled in: Full name, number according to the report card, position and division of the place of work. The line of the reason for dismissal indicates the article of the Labor Code, on the basis of which the departure from the organization occurs. The name of the document, number and date are indicated as the basis. Usually, it is a statement.
The last day of a person's work is considered the day of his dismissal. This day he should receive the payment and pick up his documents.
How is the dismissal of the director and chief accountant?
The procedure for the dismissal of the main persons of the company depends on the reason for this. The dismissal of the chief accountant will be carried out by a newly hired employee if he decides to leave himself. In case of liquidation of the enterprise, this will be done by the head.
When the management changes, the chief accountant will deal with his dismissal. And if the enterprise is cancelled, it will be fired by a specially created commission that deals with direct liquidation. The general dismissal procedure is no different from the usual process. The application and order form will also be identical to ordinary documents.
Procedure for dismissal of an employee
It is allowed to carry out this procedure only if there are certain grounds. These include:
- on personal initiative, a statement from an employee;
- agreement on termination of employment relations;
- relevant notice.
- Issue of the order. In it, the employee must put a familiarization visa.
- The full calculation of the amounts due is done by the accountant.
- Making an appropriate entry in the work book. It is entered on the basis of the relevant order by the last day of a person’s work: with a fountain, helium or ballpoint pen. Abbreviations are not allowed in this document.
- A mark of dismissal is put on the person's personal card. Here, the dismissed person must apply for a visa.
Many businesses use a bypass sheet. In the absence of this paper, it is impossible to refuse to pay the settlement or not to give the person the required documents.
On the last day of work, the departing person must be completely fired. And also issue the following documentation package:
- employment history;
- certificate 2 - personal income tax;
- reference 182 - H.
Sometimes a person cannot personally pick up their papers, the personnel department sends them by mail with a notification letter. But you must first obtain the written consent of the employee for such actions. The procedure in this case is as follows: the HR specialist sends a notification to the former employee by mail. It informs him of the need to come to the organization for documents or to indicate in writing consent to send a package of papers by mail, and to what address. Only after obtaining such permission, the employer has the right to send the required documents to the address indicated by the former employee.
The dismissal order is one of the main documents of the personnel department. In most cases, it is compiled on the basis of an employee's application. On the last day of work, the manager is obliged to sign all the necessary papers with the employee and issue him: a work book and a calculation. Sending documentation by mail is allowed.
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