Lesson notes on labor law using ICT. Agreement of the parties as a basis for dismissal Amendment and cancellation of the agreement

When concluding an employment contract, an employment relationship arises between the employer and the job applicant, and the applicant himself becomes an employee with rights and responsibilities defined by law and the contract. What guarantees of the rights of citizens in the process of concluding an employment contract does the current legislation provide?

The Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) in Article 57 establishes a number of essential conditions that must be necessarily reflected in the employment contract as a written agreement between the employee and the employer:

Place of work, and in the case when an employee is hired to work in a branch (representative office, other separate structural unit of the organization);

– place of work indicating a separate structural unit and its location;

Labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; specific type of work assigned to the employee);

The start date of work, and when concluding a fixed-term employment contract - also the duration of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract;

Conditions of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments;

Working hours and rest hours (if for a given employee it differs from the general rules in force for a given employer);

Compensation for hard work and work under harmful and (or) dangerous working conditions, if the employee is hired under appropriate conditions, indicating the characteristics of working conditions at the workplace;

Conditions that determine, if necessary, the nature of the work (mobile, traveling, on the road, other nature of work); - condition on compulsory social insurance of the employee;

Other conditions in cases provided for by labor legislation and other regulatory legal acts containing labor law norms.

Indication of these mandatory conditions in the employment contract acts as a separate guarantee that the employer takes into account the rights and legitimate interests of the employee in the labor process. At the same time, their absence in itself in the employment contract does not entail recognition of the contract as not concluded, but of the actual labor relations that have developed in as a result of the employee's admission to work - absent. On the contrary, by virtue of the direct instructions of the law, the employment contract must be supplemented with appropriate conditions.

The text of the employment contract, if an appropriate agreement is reached between the employee and the employer, may also include additional conditions relating, in particular, to improving the social and living conditions of the employee and his family members, additional material incentives for the employee and a number of other issues.

When drawing up an employment contract, it is also of fundamental importance to indicate in the contract its details, including:

Last name, first name, patronymic of the employee and name of the employer (last name, first name, patronymic of the employer - an individual);

Information about documents proving the identity of the employee and the employer - an individual;

Taxpayer identification number (for employers, with the exception of employers - individuals who are not individual entrepreneurs);

Information about the employer’s representative who signed the employment contract and the basis on which he is vested with the appropriate powers;

Place and date of conclusion of the employment contract.

The current Russian legislation has adopted the Recommendation of the International Labor Organization No. 166 “On the termination of employment relations on the initiative of entrepreneurs” (1982) on limiting the cases of concluding fixed-term employment contracts. The purpose of such a restriction is clear - labor relations, as a general rule, must be sufficiently strong and ensure the stability of the employee’s social status. Therefore, Article 59 of the Labor Code of the Russian Federation, in fact, establishes a general rule - an employment contract is concluded for an indefinite period, unless otherwise established by this Code or other federal laws, taking into account the nature of the work to be performed or the conditions for its implementation.

Thus, the list of cases in which a fixed-term employment contract can be concluded is limited.

Fixed-term employment contracts are concluded in the following cases:

For the duration of the performance of the duties of an absent employee, whose place of work is retained in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract;

For the duration of temporary (up to two months) work;

To perform seasonal work, when, due to natural conditions, work can only be carried out during a certain period (season);

With persons sent to work abroad;

To carry out work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work related to a deliberately temporary (up to one year) expansion of production or the volume of services provided; - with persons entering work in organizations created for a predetermined period or to perform a predetermined job;

With persons hired to perform obviously defined work in cases where its completion cannot be determined by a specific date;

To perform work directly related to the internship and professional training of the employee;

In cases of election for a certain period to an elected body or to an elective position for paid work, as well as employment related to the direct support of the activities of members of elected bodies or officials in state authorities and local self-government bodies, in political parties and other public associations;

With persons sent by employment services to temporary work and public works;

With citizens sent to perform alternative civil service;

Also, by agreement of the parties, a fixed-term employment contract may be concluded:

With persons entering work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail trade and consumer services - 20 people);

With age pensioners entering work, as well as with persons who, for health reasons in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature;

With persons entering work in organizations located in the Far North and equivalent areas, if this is associated with moving to the place of work;

To carry out urgent work to prevent disasters, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;

With persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;

With creative workers of the media, cinematography organizations, theaters, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers, approved by the Government of the Russian Federation Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations;

With managers, deputy managers and chief accountants of organizations, regardless of their legal forms and forms of ownership;

With persons studying full-time;

With persons entering part-time work;

In other cases provided for by this Code or other federal laws.

An employment contract, as a general rule, comes into force from the day it is signed by the employee and the employer, although a different period may be specified in the contract itself. The actual admission of an employee to work with the knowledge or on behalf of the employer (his representative) is equivalent to the conclusion of an employment contract, which in this case must still be drawn up in writing, even after the actual admission to work (Part 2 of Article 67 of the Labor Code of the Russian Federation) .

If the employment contract does not specify the start day of work, then the employee is obliged to start work on the next working day after the contract enters into force (Part 3 of Article 61 of the Labor Code of the Russian Federation).

The employment contract is concluded in writing, drawn up in 2 copies, each of which is signed by the parties. In this case, one copy of the contract remains with the employee, the second is kept by the employer. The employee’s receipt of a copy of the employment contract must be confirmed by the employee’s signature on the copy of the employment contract kept by the employer (Part 1 of Article 67 of the Labor Code of the Russian Federation).

The conclusion of an employment contract is the basis for the employer to issue an order (instruction) on hiring. In this case, the order (instruction) is announced to the employee against signature within 3 days from the date of actual start of work. At the request of the employee, the employer is obliged to provide him with a duly certified copy of the specified order (Article 68 of the Labor Code of the Russian Federation).

MINISTRY OF EDUCATION AND SCIENCE OF THE RUSSIAN FEDERATION

Federal State Educational Institution

secondary vocational education

"St. Petersburg Industrial and Economic College"

(FGOU SPO "SPbPEC")

Methodological development of conducting a lecture with

application of ICT and case method in labor law

on the topic "Employment contract"

for group 27601-O

Full-time department

Specialty: Law and organization of social security

Prepared by the teacher:

Alekseeva Svetlana Vladimirovna

Surgut

2014

This lesson involves the generalization and systematization of knowledge and its application in professional activities on the topic “Employment contract” for 2nd year students of the specialty 40.02.01 Law and organization of social security. The lesson is conducted using case technology with elements of the advanced teaching method. The content of the lesson includes professional situations on the topic, the procedure for resolving them, as well as information on the issues of concluding and terminating an employment contract and a presentation on the topics of the lecture.

“Law is the art of goodness and justice, it was created for the benefit of humanity.”

The methodology of teaching law is a very dynamic science, which is due both to the dynamism of legislation and to changes in approaches to the organization of legal education.

Currently, legal education is considered as a condition for the formation of individual abilities, the acquisition of knowledge and skills of social functioning. Thus, the key concept of modern education is the concept of competence, and the formation of competences is one of the main tasks of vocational training. The formation of general and professional competencies depends on the use of various modern technologies in the educational process. The presented methodological development can be used to study general professional disciplines. The author offers an example of using elements of case technology when conducting practical classes in labor law.

During the classes:

The methodological goal of this lesson is to show the methodology for conducting a lesson on the formation and consolidation of knowledge and skills using the case method.

Lesson objectives:

Educational : testing previously acquired knowledge and assimilation of new knowledge.

Educational: z strengthen theoretical knowledge about an employment contract, its conclusion, amendment and termination, and develop the ability to apply acquired theoretical knowledge in solving professional problems.

Educational : nurturing independence, the ability to work in a team, a sense of justice and responsibility, the formation of an active life position by demonstrating the interrelation of theoretical and practical issues on the topic of an employment contract.

Developmental : development of the ability to analyze, generalize theoretical material, correctly qualify and resolve legal situations, which is necessary in practical activities.

Planned results of the training session:

OK 4. Search and use information necessary for the effective performance of professional tasks, professional and personal development.

OK 5. Use information and communication technologies in professional activities.

OK 6. Work in a team and team, communicate effectively with colleagues, management, and consumers.

OK 9. Navigate in the context of constant changes in the legal framework.

Skills:

− apply labor legislation in practice;− analyze and prepare proposals for regulating labor relations;

Knowledge:

− normative legal acts regulating public relations in labor law;− rights and obligations of employees and employers;− content of the employment contract, procedure for concluding, amending and terminating the employment contract.

Interdisciplinary connections: constitutional law, civil law, administrative law, documentation support for management, information technology in professional activities.

Lesson equipment: personal computer, handouts - cases, Labor Code of the Russian Federation (for each student), multimedia projector, electronic presentation for the PowerPoint lesson.

Lesson type: Studying new material with practical application of knowledge, skills, abilities.

Lesson type: Combined lesson.

Methods of organizing and implementing educational and cognitive activities:

Verbal (story, conversation),

Visual (use of multimedia presentation, document forms, cards),

Practical (case assignments),

Problematic (when resolving practical situations),

Interactive (using tasks during the lecture based on the interaction of students with the teacher and with each other).

Level of knowledge acquisition:Familiarization, reproduction, consolidation.

Methodological support and literature:

− Federal Law Labor Code of the Russian Federation. – Moscow: KnoRus Avenue, 2014 – 224 p.

− Commentary on the Labor Code of the Russian Federation (article-by-article), new edition by O.V. Smirnov, M.O. Buyanova, I.A. Kostyan, V.G. Malov. 8th edition: erased. M: KnoRus: 2010 – 276 p.

− Internet resource “Garant.ru” is an information and legal portal. Access form: http://www.garant.ru

During the classes

1. Organizational moment. Greeting from the teacher. Hello. I ask everyone to sit down, let’s get ready for productive work. Is everything ready for the lesson? So here we go.

2. Checking homework. In order for us to get ready to study a new topic, we need to remember the material we have covered. Students are given cards with test tasks. 10 minutes are allotted to answer questions. Now that you have completed the task, exchange tests with your desk neighbor. Check the correctness of the answers in accordance with the standards (a presentation slide is displayed.

3. Motivation for educational cognitive activity. The topic of our lesson: Employment contract. In the process of studying the labor law course, we considered one of the following questions:Basic principles of concluding collective agreements and agreements. Concept, content, parties and procedure for concluding a collective agreement. The validity of the collective agreement, control over its implementation.You understand that the topic has great practical application. Each of you will sooner or later face such a problem as finding employment and concluding an employment contract, as well as terminating such a contract.From year to year, a problem that does not lose its importance is employment, and especially the employment of young people. It remains one of the most pressing problems in the world of work. Today's topic is more relevant than ever for you students and future workers. That's whyThe purpose of our lesson will be: consolidation, generalization and systematization of theoretical knowledge, and especially we need to consolidate the ability to apply it in a practical situation to solve professional problems related to labor relations.

The lecture is accompanied by a presentation. Students take notes on the main points. They ask questions.

1. Employment contract - an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work for a specified labor function, to provide working conditions provided for by the Labor Code of the Russian Federation, laws and other regulatory legal acts, a collective agreement, agreements, local regulations containing labor law standards, pay the employee wages in a timely manner and in full; and the employee undertakes to personally perform the labor function determined by this agreement and to comply with the internal labor regulations in force in the organization.

The parties to the employment contract are the employer and the employee. A citizen becomes an employee by concluding an employment contract for the entire duration of its validity. The second party to the employment contract is the employer represented by a certain enterprise, institution, organization (including a company, joint-stock company, production cooperative, private entrepreneur or other employer hiring a citizen under an employment contract). The parties can enter into an employment contract if both have labor legal capacity as the ability recognized by law to be a party to the employment contract, the subject of the employment relationship.
The content of an employment contract is the totality of all its conditions. They are divided into direct, stipulated directly by the parties in the written text of the employment contract, and derivatives, provided for by law, collective agreement, agreements and, by virtue of the conclusion of the employment contract, extending to the parties (on the procedure for transfer, dismissal, labor protection rules, etc.).
Direct conditions can be of two types: essential and additional.
The essential terms of the employment contract, by virtue of Art. 57 of the Labor Code of the Russian Federation are:

• place of work (indicating the structural unit);
• work start date;
• name of the position, specialty, profession indicating qualifications in accordance with the organization’s staffing table or specific labor function;
• employee rights and obligations;
• rights and obligations of the employer;
• characteristics of working conditions, compensation and benefits to employees for working in difficult, harmful and (or) dangerous conditions;
• work and rest schedule (if it differs in relation to a given employee from the general rules established in the organization);
• terms of remuneration (including the amount of the employee’s official salary, additional payments, allowances and incentive payments);
• types and conditions of social insurance directly related to work.

Additional direct conditions include conditions on a probationary period upon admission, on additional leaves provided for in the collective or specifically in this employment contract, on any additional payments, benefits established by agreement of the parties to the contract. If additional conditions are specified, they are binding, as are necessary and derived conditions.

Depending on the validity period, employment contracts are divided into:

1. Employment contract for an indefinite period.
2. A fixed-term employment contract is a contract concluded for a certain period, but not more than 5 years, unless a different period is established by the Labor Code of the Russian Federation and other federal laws.

A fixed-term employment contract is concluded in cases where the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be performed or the conditions for its implementation.
If the employment contract does not specify the duration of its validity, the contract is considered to be concluded for an indefinite period. If neither party has requested termination of a fixed-term employment contract due to the expiration of its term, and the employee continues to work after the expiration of the employment contract, the employment contract is considered to be concluded for an indefinite period.

The procedure for concluding an employment contract. Recruitment is carried out on the principle of selecting personnel based on business qualities. Guarantees for admission - unreasonable refusal of admission, direct or indirect advantages and discrimination not on the basis of business qualities, but on the basis of gender, race, nationality, religion, beliefs, place of residence and other circumstances not related to the business qualities of the employee are prohibited.
Admission is from 16 years of age. But in the case of receiving a basic education or leaving a general education institution, admission can be from the age of 15, and with the consent of one of the parents (guardian), a student from the age of 14 can be admitted to perform light labor in his free time that does not cause harm to his health and does not disrupting the learning process.
Citizens are hired on the basis of a written employment contract (in 2 copies, one for each party). Hiring is formalized by order (instruction) of the administration of the enterprise, institution, organization (its head, who has the right to hire and fire), which is announced to the employee against receipt. If a citizen is actually allowed to work without concluding an employment contract, then this is considered the conclusion of an employment contract, regardless of whether the hiring was properly formalized.
When applying for a job, a citizen must present a passport or other identification document; work book, except for cases of employment for the first time and on a part-time basis; insurance certificate of state pension insurance, and those demobilized and subject to conscription - a military ID. When hiring specialists, a document on special education is presented; when hiring a driver or driver, a license to drive a certain type of car or locomotive is also presented. If a citizen goes to work for the first time and does not have a work book, then he submits a certificate of his last employment (housewife, student, etc.). It is prohibited to require documents other than those required by law (for example, characteristics, if they are not required for this job) when applying for a job.
When hiring, the parties to the employment contract may stipulate the establishment of a probationary period of up to 3 months, and for the positions of civil servants and certified employees of research institutes, design, engineering organizations, heads of organizations, their deputies, chief accountants and their deputies, heads of branches, representative offices and other separate divisions of the organization - up to 6 months, but in agreement with the trade union committee. Periods of illness and other times when the employee was actually absent from work are not included in the probationary period. The probationary period is fixed in the employment contract, and in the absence of such a record, it is considered that the employee was hired without probation. A hiring test is not established for:

• persons applying for work through a competition for filling the corresponding position, held in the manner prescribed by law;
• pregnant women;
• persons under the age of eighteen;
• persons who have graduated from educational institutions of primary, secondary and higher vocational education and are entering work for the first time in their specialty;
• persons elected (selected) to an elective position for paid work;
• persons invited to work by way of transfer from another employer as agreed between employers;
• in other cases provided for by the Labor Code of the Russian Federation, other federal laws and the collective agreement.

2. Changing an employment contract is possible only with the consent of its parties. This prohibition applies to all types of employment contracts, except for two cases of temporary transfers - due to production needs and due to downtime. Changing the employment contract means transferring the employee to another job and vice versa. Transfer to another job means a change in the essential terms of the employment contract.

Transfer to another job is a change in the employee’s activities, i.e. providing him with a different job compared to that agreed upon in the employment contract. Other work means a change in one of the essential terms of the contract (place of work, job function, remuneration, etc.) or other essential working conditions.

Transfer to another job at the same enterprise, institution, organization or to another enterprise, institution, organization or to another locality, at least together with the enterprise, institution, organization is allowed only with the consent of the employee, with the exception of production necessity.

It is not considered a transfer to another job and does not require, therefore, the consent of the employee to move him at the same enterprise, institution, organization to another workplace, to another structural unit in the same area, assignment of work on another mechanism, unit without changing the essential terms of the employment contract . Moving to another workplace without changing the essential terms of the employment contract does not change the employment contract, therefore it does not require the employee’s consent.

The employer is allowed to change essential working conditions without the employee’s consent while continuing to work in the same job function, only if this is due to a change in organizational or technological working conditions, for example, if the production process has changed. But in these cases, the employee must be notified in writing of changes in essential working conditions no later than 2 months in advance. Such a change is possible only if the previous essential working conditions cannot be maintained. If, in this case, the employee does not agree to continue working, then the employer is obliged to offer him in writing another job available in the organization that corresponds to his qualifications and state of health, and in its absence - a vacant lower position or lower paid work that the employee can perform taking into account his qualifications and health status. In the absence of such work or if the employee refuses the offered work, his employment contract is terminated. If changes in organizational or technological working conditions may lead to mass layoffs of workers, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected trade union committee of the organization, to introduce a part-time working regime for up to 6 months.

And if the employee refuses to continue working part-time, then his employment contract is terminated due to a reduction in the number (staff) of employees.

Changes to the essential terms of the employment contract cannot be introduced that worsen the employee’s position in comparison with the terms of the collective agreement or agreement. A change in the owner of an organization's property is not grounds for terminating an employee's employment contract, except for contracts with the head of the organization, his deputies and the chief accountant. The new owner can terminate employment contracts with the above three categories of organization managers within three months from the date he acquired ownership rights.

A change in working conditions in connection with the adoption of a new rule of law that changes them, with the development of technology, the introduction of a new technology, or a change in name does not apply to a transfer and does not require the employee’s consent. If the jurisdiction of the organization changes and its reorganization, labor relations with the consent of the employee continue.

A transfer must be distinguished from a transition to another job, when an employee quits his previous job and starts a new one. A transfer to another location, even with the same enterprise, institution, or organization, requires the employee’s consent, and if he refuses the offer to move with the organization, he may be fired. A transfer to another locality, another locality according to the administrative-territorial division must be distinguished from a business trip to another locality. Their purpose and conditions are different. A business trip is a trip by an employee, by order of the administration, to another location for a limited period of time to perform work, usually in his specialty (official assignment). It does not require the consent of the employee (except for women with children under 3 years old, etc.). The traveler retains his permanent place of work and average salary, and the expenses of the business trip are compensated to him in the form of travel allowances.

Temporary substitution, the performance of duties in the position of a temporarily absent employee, is also considered a transfer. The law classifies such a transfer as a production necessity. If an employee is entrusted with performing the duties of a temporarily absent employee without releasing him from his main job, then this will be a temporary combination of professions, and not a substitution. Substitution without the employee’s consent is limited to one month during the calendar year.

Transfers are divided by term into permanent and temporary. A permanent transfer means that the change in the employment contract has occurred for an indefinite period and the previous place and terms of the contract are not preserved. During a temporary transfer, the previous place of work and terms of the contract are preserved, but another job is assigned for a certain (short) period, after which the previous working conditions are restored.
Permanent and temporary transfers, in turn, are also classified. A permanent change of place of work can be of three types: 1) transfer to another enterprise, institution, organization, at least in the same area; 2) transfer to another area, at least with the same production; 3) translation at the same enterprise, institution, organization.

Temporary transfer is classified according to the reasons for the transfer:
1) for production needs, including substitution (Article 74 of the Labor Code);
2) pregnant women and women with children under 1.5 years old for easier work;
3) for health reasons according to a medical report;
4) at the request of the military registration and enlistment office to undergo military training without interrupting work (from two to three shifts of work in one shift).
The first type does not require the employee’s consent and is mandatory for him, the last three types are mandatory for the administration.
Only a permanent transfer is noted in the employee’s work book; a temporary transfer is not noted. If an employee is transferred in violation of the transfer rules, he can challenge it and the body considering this dispute will reinstate him at work with pay for forced absence.
An employment contract can be terminated and an employee dismissed only on the grounds and in the manner specified by law. An employment contract is terminated only if there are certain grounds for its termination and compliance with the rules for dismissing an employee on this specific basis. The basis for termination of an employment contract is a life circumstance, which is enshrined in law as a legal fact for terminating the employment relationship of employees.
An employment contract may be terminated:

• at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation);
• at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation);
• on other general grounds Art. 77 of the Labor Code of the Russian Federation, including due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation).

All grounds for dismissing an employee according to their scope are divided into general, applicable to all employees, and additional, applicable only to certain categories of employees.
General grounds for dismissal:

1. Agreement of the parties to the employment contract. If the parties have reached an agreement to terminate the employment contract, the contract is terminated at any time within the period determined by the parties. Cancellation of such an agreement can only take place with a new mutual consent of the employer and employee.
2. Expiration of the contract, except in cases where the employment relationship actually continues and neither party has requested its termination.
3. Transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective position. This basis for dismissal applies only if three wills are clearly expressed in writing: the employer (his administration) of the new place of work inviting this person to work, the employee himself and the employer of the previous place of work to release him by way of transfer.
4. Transition to elected office. To apply this basis, an act of election of an employee to an elective position exempt from production work is required.
5. An employee’s refusal to continue working due to a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization.
6. An employee’s refusal to continue working due to a change in the essential terms of the employment contract.
7. Refusal of an employee to transfer to another job for health reasons in accordance with a medical report.
8. An employee’s refusal to transfer due to the employer’s relocation to another location. When production moves to another area, on this basis, those employees who were invited by the employer to move with him, but they refused, are dismissed.
9. Violation of the rules for concluding an employment contract established by the Code, if this violation excludes the possibility of continuing work:

• in violation of a court verdict depriving a specific person of the right to occupy certain positions or engage in certain activities;
• to a job that is medically contraindicated for this person due to health reasons, if the employer does not have a suitable other job to transfer to it;
• in the absence of a document on special education, when it is required by law.

If the violation of the hiring rules was not the fault of the employee, then his dismissal under clause 11 of Art. 77 of the Labor Code of the Russian Federation is carried out with the payment of severance pay to him in the amount of his average monthly earnings (Article 84 of the Labor Code of the Russian Federation).
The grounds for dismissal at the initiative of the employer, applied to all employees, no matter who and where they work, are called general, and those applied to certain categories are called additional.
General guarantees for dismissal at the initiative of the administration for all the reasons specified in the article: prohibition of dismissal during a period of temporary incapacity for work and while the employee is on annual leave, with the exception of cases of complete liquidation of an enterprise, institution, or organization. Dismissal of pregnant women at the initiative of the administration, both for general and additional reasons, is not allowed, except in cases of complete liquidation of an enterprise, institution, or organization, when it is possible to dismiss, but with mandatory employment. If a fixed-term employment contract expires during a woman’s pregnancy, the employer is obliged, at her request, to extend the term of the employment contract until she becomes entitled to maternity leave.
Grounds for termination of an employment contract at the initiative of the employer:

1. Liquidation of an enterprise, institution, organization or termination of activities by an employer - an individual.
2. Reduction in the number or staff of employees.
3. Detection of an employee’s inadequacy for the position held or work performed due to health conditions, in accordance with a medical report, or insufficient qualifications, which is confirmed by certification results.
4. Change of owner of the organization's property (in relation to the head of the organization, his deputies and the chief accountant).
5. Repeated failure by an employee to fulfill his job duties without good reason if he has a disciplinary sanction.
6. A single gross violation by an employee of his labor duties:

• absenteeism (absence from the workplace without good reason for more than 4 hours in a row during the working day);
• appearing at work in a state of alcohol, drug or other toxic intoxication;
• disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties;
• committing theft (including small) of someone else's property at the place of work, its intentional destruction or damage, embezzlement - as established by a court verdict that has entered into legal force or a resolution of an authority authorized to apply administrative penalties;
• violation by an employee of labor protection requirements, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences.

1. Loss of trust of the administration in an employee who directly services monetary and commodity assets (reception, storage, transportation, sale of them, etc.), who has committed guilty actions that give the administration grounds for loss of trust in him.
2. Dismissal of an employee performing educational functions for an immoral offense incompatible with the continuation of this work.
3. An additional basis for dismissal, which applies only to the heads of the organization (branch, representative office), his deputies and chief accountants who made an unreasonable decision, which resulted in damage to the organization’s property.
4. A one-time gross violation by the head of the organization (branch, representative office) or his deputies of their labor duties.
5. Submitting false documents and knowingly false information to the employer when concluding an employment contract.
6. Termination of access to state secrets if the work performed requires such access.

1. Solving situations using cases

Dear students, now you have theoretical information on the topic, and we move on to solving case situations. Students are divided into groups. The teacher distributes case situations to students.

Case situation No. 1

Semenova was hired as a culinary specialist on February 4, 2012. When concluding an employment contract, the head of the personnel service warned her that in order to check her qualifications, she would be tested. Semyonova agreed.

Semenova’s hiring was formalized by an order with the following content: “Natalya Ivanovna Semenova is to be hired from February 4, 2012 in a confectionery shop as a 3rd category culinary specialist with piecework wages with a probationary period of 2 months - from February 4 to April 3, 2012. ” On February 5, an employee of the HR department familiarized Semenova with the order against receipt.

During the testing period, Semenova worked poorly: she was late for work 2 times, did not manage to fulfill the daily production quota several times, and twice violated the technology for making confectionery products. These facts were reflected in the reports drawn up by the technologist, the foreman and one of the culinary specialists of the workshop. Since the test results were unsatisfactory, the general director decided to terminate Semyonova’s employment contract.

On March 29, 2012, the shop manager gave Semenova a written warning that she had failed the test and would be fired on April 4. On April 3, the general director signed an order to terminate Semenova’s employment contract on the basis of Art. 71 Labor Code of the Russian Federation.
Semenova did not agree with the order and filed a lawsuit for reinstatement at work. In the statement of claim, she gave the following argument: “The employment contract with me was signed 3 days after I was familiarized with the employment order. There is no provision for establishing a trial in the employment contract. Believing that the director changed his mind and decided not to put me on probation, I agreed with this and confirmed my consent by signing the employment contract.”

1. What decision will the court make?

1. What mistake did the administration make?

The court recognized Semenova's argument as justified, concluded that she had been hired without a test, and reinstated her at work.
In this case, when applying for a job, the administration made a mistake, violating the requirements of Art. 68 Labor Code of the Russian Federation. The employer should have included in the order a condition of the employment contract regarding the establishment of a probationary period for the employee.

Case situation No. 2

An agreement was reached between the employee and the employer to begin work. The employee began to perform his duties. Three days later, the employer decided that such an employee was not suitable for him, and stated that he did not sign the contract, and therefore asked the employee to leave on good terms. The employee’s request to pay him money was ignored. The employer explained that there was no written contract, no order was issued, and therefore no legal relationship arose.

1. Provide legal advice to this employee.
2. In such a situation, can an employee go to court?

Article 64 of the Labor Code of the Russian Federation. Unreasonable refusal to conclude an employment contract is prohibited.

Any direct or indirect restriction of rights or the establishment of direct or indirect advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence ( including the presence or absence of registration at the place of residence or stay), attitudes to religion, beliefs, membership or non-belonging to public associations or any social groups, as well as other circumstances not related to the business qualities of employees, are not allowed, with the exception of cases in which the right or obligation to establish such restrictions or advantages is provided for by federal laws.

It is prohibited to refuse to conclude an employment contract to women for reasons related to pregnancy or the presence of children.

It is prohibited to refuse to conclude an employment contract to employees invited in writing to work by way of transfer from another employer, within one month from the date of dismissal from their previous place of work.

At the request of a person who is refused to conclude an employment contract, the employer is obliged to provide the reason for the refusal in writing.

Refusal to conclude an employment contract can be appealed in court.

Case situation No. 3

Due to the dismissal of the head of the human resources department of a pharmaceutical plant, this position became vacant. The nature of the work of the head of the personnel department required deep knowledge of labor legislation, skills and experience in working with personnel. It was difficult to find such an employee in a short time.

When Sokolovsky offered his services as head of the personnel department, the general director of the plant decided to hire him for 3 months to begin with, in order to see how he would cope with his responsibilities. The employment order and the employment contract indicated a period of 3 months.

After 3 months, Sokolovsky was dismissed from work due to the expiration of the employment contract on the basis of Art. 79 Labor Code of the Russian Federation. Another employee, Zaitsev, was hired for this position.

1. If Sokolovsky goes to court, what decision will the court make?
2. What is the employer's mistake?

If Sokolovsky goes to court with a claim for reinstatement at work, the court will recognize the employment contract with him as concluded for an indefinite period, and the term clause will be invalid. When making a decision, the court must be guided by Part 5 of Art. 58 Labor Code of the Russian Federation.
The employer's mistake was that he neglected the requirements of Art. 58 and 59 of the Labor Code of the Russian Federation. None of those listed in Art. There were no grounds for concluding a fixed-term employment contract when hiring Sokolovsky.

If the employment contract does not stipulate its duration, then in accordance with Part 3 of Art. 58 of the Labor Code of the Russian Federation, the contract is considered concluded for an indefinite period.

A fixed-term employment contract is concluded only if there are sufficient grounds for it. Such cases are listed in Art. 59 Labor Code of the Russian Federation:

To replace a temporarily absent employee whose job is retained in accordance with the law;

For the duration of temporary (up to two months) work, as well as seasonal work, when, due to natural conditions, work can only be carried out during a certain period of time (season);

With persons entering work in organizations located in the Far North and equivalent areas, if this is associated with moving to the place of work;

to carry out urgent work to prevent accidents, breakdowns, catastrophes, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;

With persons entering work in organizations - small businesses with up to 40 employees (in retail trade and consumer services organizations - up to 25 employees), as well as with employers - individuals;

With persons sent to work abroad;

To carry out work that goes beyond the normal activities of the organization, as well as to carry out work related to a deliberately temporary (up to one year) expansion of production or the volume of services provided;

With persons entering work in organizations created for a predetermined period of time or to perform a predetermined job;

for work directly related to the employee’s internship and professional training;

With persons studying in full-time forms of education;

With persons working part-time in this organization;

With age pensioners, as well as with persons who, for health reasons, in accordance with a medical certificate, are allowed to work exclusively of a temporary nature;

With creative workers of the media, cinematography organizations, theaters, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance of works, professional athletes in accordance with the lists of professions approved by the Government of the Russian Federation;

With scientific, teaching and other employees who have entered into employment contracts for a certain period as a result of a competition;

In case of election for a certain period to an elected body or to an elective position for paid work;

With managers, deputy managers and chief accountants of organizations;

with persons sent for temporary work by the employment service, including for public works.

In the process of solving case situations, students actively work in a group, each putting forward their own arguments and opinions. When a representative of one of the groups begins to answer, the members of the other two groups ask questions that interest them.

Case analysis is a process of solving a significant number of particular problems, which presupposes the constant presence of idea generation in this process. At the same time, a new idea or solution that one of the students came up with is beginning to be adopted by other students. The process of dissemination is gaining momentum, i.e. mastering knowledge that quickly becomes public knowledge and becomes obsolete. Next comes the generation of a new one, and again it becomes obsolete. From this it becomes clear that the case method represents a close interaction between the processes of generation and dissemination of knowledge. This ensures the development and training of the participants’ intellects

Teacher: Everyone coped with solving the situations and gave complete answers to the questions posed. Now you understand how necessary it is to know the laws, your rights and obligations in the field of labor law. You must be able to analyze regulations and respond in a timely manner to all changes occurring in the legislation. A lawyer today is a specialist with sufficient professional competencies; he solves complex professional problems in labor relations.

1. Summarizing. Reflection.

1. Define and name the features of an “employment contract”.
2. What is the content of an employment contract?
3. What are the terms of an employment contract?
4. What are the legal guarantees when hiring?
5. Describe the move to another job.
6. What is the procedure for transferring an employee to another job?
7. State the grounds and conditions for termination of an employment contract at the initiative of the employee.
8. State the grounds and conditions for termination of an employment contract at the initiative of the employer.

I thank everyone for their work. It should be noted that the main group did an excellent job, the answers of some students were not confident enough, so I wish everyone to continue working on systematizing their knowledge and subsequently apply it in their future professional activities.

Thank you everyone for your attention and good work in class.

Test (checking the mastery of the material covered)

1. Who develops and adopts the Collective Agreement:

A. at the referendum.

b. at a session of the State Duma.

V. at a meeting of managers of an enterprise, company, organization.

at the general conference of the labor collective.

2. The parties to the conclusion of a collective agreement are:

A. Employer and employees.

b. chairman of the trade union committee and workers.

V. owner and workforce.

d. labor dispute committee and workers.

3. The collective agreement of the enterprise applies to:

A. only for the administration.

b. for all subjects (members) of the enterprise, except for the managers of this enterprise.

V. only for temporary workers.

for all members (subjects) of the enterprise.

4. The subjects of labor law are:

a) state;

c) citizens of the Russian Federation;

e) joint stock companies.

5. Choose the correct definition of a collective agreement:

6. The legal personality of the labor collective is characterized by the following:

a) operational criterion;

b) the presence of a self-government body;

c) voluntariness of the association;

d) property criterion;

d) having a bank account.

7. A collective agreement can be:

a) one-sided;

b) bilateral;

c) tripartite.

8.The labor legal personality of an organization is characterized by:

a) the presence of a charter;

b) volitional criterion;

c) opening a bank account;

d) property criterion;

e) operational criterion.

9. Representatives of employees when concluding a collective agreement may be:

a) local government bodies;

b) conflict resolution service;

c) trade unions.

10. Which of the listed regulations are sources of labor law:

a) resolutions of the Federal Commission for the Securities Market;

b) decrees of the President of the Russian Federation;

c) orders of the Ministry of Foreign Affairs of the Russian Federation;

d) Constitution of the Russian Federation;

e) orders of the Federal Tax Service;

f) Labor Code of the Russian Federation.

11. Which of the specified legal relations can be included in the system of legal relations under labor law:

a) legal relations for resolving labor disputes;

b) legal relations regarding payment of overtime work;

c) legal relations regarding employment;

d) labor relations;

e) legal relations regarding the payment of pensions;

f) legal relations regarding the recording and distribution of working time.

12. The agreement may be:

a) four-sided;

b) one-sided;

c) tripartite.

13. Choose the correct definition of agreement:

a) the agreement is an employment contract;

b) an agreement is a legal act regulating social and labor relations and concluded between employees and the employer;

c) an agreement is a legal act establishing general principles for regulating social and labor relations, concluded between authorized representatives of workers and employers at the federal, regional, sectoral (inter-sectoral) and territorial levels within their competence;

d) an agreement is an agreement between the parties in the absence of disagreements regarding the establishment of working conditions.

14. The subject of labor law is the following relations:

a) relations for the consideration of labor disputes;

b) relations regarding payment of overtime work;

c) employment relations;

d) labor relations;

e) relations regarding the payment of pensions.

15. The subjects of labor law are:

a) state;

b) Ministry of Health and Social Development of the Russian Federation;

c) citizens of the Russian Federation;

d) the workforce of the organization;

e) joint stock companies.

16. Choose the correct definition of a collective agreement:

a) a collective agreement is an employment contract;

b) a collective agreement is a legal act regulating social and labor relations in an organization and concluded by employees and the employer represented by their representatives;

c) a collective agreement is an agreement between the parties in the absence of disagreements regarding the establishment of working conditions.

Standards of answers to the test proposed for repetition of the studied material:

Have you ever wondered how many times the Labor Code contains the phrase “by agreement of the parties”? How is it different from the “consent” of the employee or the “initiative” of the employer? And what documents need to be completed in each case? Agreement? Agreement? Or maybe the employee should write a statement?.. Some will give up - the main thing is to come to an agreement with the employee, and it won’t be about the documents... But everything, of course, is not so simple. Reaching an agreement is half the battle; you still need to formalize it correctly. We hope our recommendations will help you choose the right design option for any situation.

Admit it, how often do you look at Section I of the Labor Code of the Russian Federation, which is called “General Provisions”? In fact, the honest answer “no” will surprise no one. Those for whom the Code is a reference book usually work with “applied” norms, starting somewhere with Article 57 “Content of the Employment Contract”. But in order to understand why it is necessary to negotiate something with an employee at all, let’s turn to the general provisions of the Code.

AGREEMENT OF THE PARTIES: WHEN IT IS NECESSARY TO AGREE

Labor relations are those based on an agreement between an employee and an employer on the employee’s personal performance of a labor function for a fee, the employee’s subordination to the internal labor regulations while the employer provides working conditions provided for by labor legislation, a collective agreement, agreements, local regulations, an employment contract (Art. 15 Labor Code of the Russian Federation). They arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with the Code (Part 1 of Article 16 of the Labor Code of the Russian Federation).

So, the law calls the employment contract the basis for the emergence of relations between an employee and an employer. And many norms are devoted to its content and form. And most importantly, the conditions in the employment contract are fixed by agreement of the parties.

For example, when concluding an employment contract, by agreement of the parties, it provides for the condition of testing the employee in order to verify his compliance with the assigned work (Part 1 of Article 70 of the Labor Code of the Russian Federation).

However, as they say, “everything flows, everything changes,” and during the course of work, the terms of the concluded contract may change for one reason or another. As a general rule, this is allowed only by agreement of the parties to the employment contract. The Code provides for some exceptions, but even in these situations, the employee has the right to choose: continue working under new conditions proposed by the employer, or terminate the employment relationship. This means that in such situations, the employee actually agrees to change the terms of the employment contract.

In cases where, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, other reasons), the terms of the employment contract determined by the parties cannot be maintained, it is allowed to change these conditions at the initiative of the employer, with the exception of the employee’s labor function .

The employee is warned in writing about upcoming changes to the conditions of the employment contract determined by the parties, as well as about the reasons that made them necessary, in writing no later than two months, unless other deadlines are provided for by the Labor Code of the Russian Federation. An employee may agree to continue working under changing conditions. In this case, the parties will enter into an additional agreement to the employment contract, where they will determine new conditions.

However, the employee may not agree to work under the new conditions. In this case, the employer is obliged to offer him in writing another available job that the employee can perform taking into account his state of health. If the employee agrees to be transferred to another job, the parties draw up an additional agreement to the employment contract, where they determine the working conditions for the new job function.

In the absence of such work or the employee’s refusal to transfer, the employment contract is terminated under clause 7, part 1, art. 77 Labor Code of the Russian Federation. As we see, in this last option the parties were unable to agree either on working under new conditions or on transferring the employee to another job. Since the change in the terms of the employment contract is caused by objective circumstances, the parties have no choice but to terminate the employment relationship on appropriate grounds.

So, if an agreement is reached between the employee and the employer, the employment contract can be concluded, amended or terminated. By agreement of the parties, the content of the employment contract is determined (Article 57 of the Labor Code of the Russian Federation), a transfer to another job is carried out (Article 72 of the Labor Code of the Russian Federation), and the contract can be terminated (Article 78 of the Labor Code of the Russian Federation).

The law also provides for situations in which the performance of actions by an employee or employer does not entail a permanent change in the terms of the employment contract, but leads to a “one-time”, short-term deviation from the general rules.

For example, an employee will ask for part of the vacation, while the employment contract provides for the provision of vacation in full and the entire vacation is planned in the vacation schedule.

How can you deviate from the rules? Of course, by agreement of the parties. In our example, the authorized representative of the employer will either agree to provide the employee with part of the vacation, or refuse such provision - and then the employee will use the vacation in the amount and on the dates provided for in the vacation schedule.

By agreement of the parties, other issues may be resolved when regulating relations directly related to labor.

Thus, the agreement of the parties, expressed in writing, determines the amount of reimbursement of expenses when an employee uses personal property with the consent or knowledge of the employer and in his interests (Article 188 of the Labor Code of the Russian Federation).

Finally, the law also highlights those cases when reaching an agreement with the employee is not required. As a rule, they are associated with special circumstances, and the employee is provided with certain guarantees.

In the event of an industrial accident, the employee may be transferred without his consent for a period of up to one month to work not stipulated by the employment contract with the same employer to eliminate the consequences of the accident. In this case, the employee is paid according to the work performed, but not lower than the average earnings for the previous job.

AGREEMENT OF THE PARTIES: WHEN IT NEEDS TO BE EXECUTED

The agreement of the parties is a wording that is neutral in nature. In the Code, cases of agreement between the parties are designated differently: “agreement”, “by agreement of the parties”, “agreement of the parties, drawn up in writing”. When certain actions are initiated by one party and the other is asked to agree to it, the wording “with consent” is used.

In some cases, the legislator directly prescribes the need to formalize the agreement of the parties in writing; other norms do not contain such mandatory instructions.

Note! The existence of an agreement between the parties to the employment contract in cases directly provided for by the current Labor Code of the Russian Federation requires confirmation

However, a written form of agreement is necessary in most cases, even when it is not expressly required by law.

For example, Part 1 of Art. 93 of the Labor Code of the Russian Federation provides: by agreement between the employee and the employer, both upon hiring and subsequently, a part-time working day (shift) or a part-time working week can be established. The norm does not provide that such an agreement between the employee and the employer must be drawn up in writing. However, it is obvious that when hiring, the condition of part-time work is included in the employment contract, which is concluded in writing.

Sometimes the logic of the legislator is incomprehensible when in one case a written form of agreement is directly provided for, but in another similar situation such an indication is not made.

For employees studying part-time and part-time (evening) forms of study in state-accredited educational institutions of higher professional education, a working week shortened by 7 o'clock.

Part 5 Art. 173 of the Labor Code of the Russian Federation provides that, by agreement of the parties to an employment contract, a reduction in working hours is carried out by providing the employee with one day off from work per week or by reducing the duration of the working day during the week. A similar guarantee is provided for employees studying part-time (evening) and part-time courses in state-accredited educational institutions of secondary vocational education.

However, Part 5 of Art. 174 of the Labor Code of the Russian Federation, which establishes the method for determining a reduction in working hours, specifically states that the agreement of the parties to an employment contract must be concluded in writing. Why is the written form of the agreement not indicated in Part 5 of Art. 173 of the Labor Code of the Russian Federation is unclear. Apparently, the agreement must be in writing in both cases.

Advice: Document the agreements reached with the employee in writing, even if the law does not directly provide for such a form of agreement between the parties.

Finally, keeping the agreement in writing between the parties is recommended in order to demonstrate that the employer is complying with applicable labor laws. A timely and correctly drawn up document confirming the existence of an agreement between the parties will help in the event of controversial situations.

Of course, in practice there are also situations where a verbal agreement between the parties is sufficient.

The Labor Code provides that an employee can go to work on the day of donating blood and its components. In this case, an agreement must be reached with the employer. Should such an agreement be written?

As a general rule, on the day of donation of blood and its components, as well as on the day of the associated medical examination, the employee is released from work. However, Part 2 of Art. 186 of the Labor Code of the Russian Federation provides that, by agreement with the employer, the employee may go to work on the day of donating blood and its components (with the exception of heavy work and work with harmful and (or) dangerous working conditions, when the employee’s going to work on this day is impossible). For work on the day of blood donation, the employee will be given another day of rest at his request.

In such a situation, written documentation of reaching an agreement on the employee’s return to work is not required; a verbal agreement is sufficient. And the fact that the employee both donated blood and went to work on the same day will be confirmed by data from the time sheet.

So, the law provides for many situations where the employee and the employer must reach an agreement, and in the vast majority of cases such an agreement is drawn up in writing. In this regard, the following question arises: what documents should the reached agreement include?

First of all, of course, contractual ones. The purpose of their creation is precisely to consolidate in writing all the provisions that the parties agree on.

The main contractual documents include:
employment contract;
agreement of the parties on testing upon the actual admission of the employee to work;
additional agreement to the employment contract;
student agreement;
agreement on training at the expense of the employer;
agreement on compensation for moral damage caused to the employee;
employee reimbursement agreement;
agreement on compensation for damage caused to the employer;
agreement of the parties to terminate the employment contract.

In some cases, drawing up a contract or agreement is unnecessary. Then it is enough to formalize the “deal” between the employee and the employer on another document. The main thing is that the question (proposal, request) of one party to the employment contract and the answer to this from the other party confirm that the employee and the employer have reached an agreement on this issue (proposal, request). Basically these can be the following documents:
employee statement;
notice sent to the employee.

On an employee’s application containing a specific request, the head of the organization will put a resolution, which will reflect the decision on the merits of the stated request ( Annex 1).

Having received a notification that contains a certain proposal, the employee, applying for an familiarization visa, can express his attitude towards such proposal ( appendix 2).

The cases of agreement between the parties provided for by the Labor Code of the Russian Federation, as well as methods for their execution, are given in table. Let's look at some of them in more detail.

AGREEMENT OF THE PARTIES. SELECTED CASES

Drawing up agreements when hiring

When hiring, the parties enter into an employment contract. Writing a contract allows the employee and the employer to formulate all the conditions in detail in order to avoid uncertainty regarding its content in the future.

The law does not dictate to the parties how to draw up a written employment contract. It is drawn up arbitrarily, but must meet the formal characteristics of a contract - a bilateral transaction, have the appropriate details and not contradict the fundamental principles of contract law.

Article 57 of the Labor Code of the Russian Federation establishes lists of information that must be indicated in an employment contract, conditions that must be included in it, and those conditions that the parties can agree on.

In accordance with Art. 70 of the Labor Code of the Russian Federation, one of the conditions of the employment contract may be the condition of testing the employee in order to verify his compliance with the assigned work. If the test condition was not agreed upon when concluding the employment contract and is not provided for in it, it is considered that the employee was hired without a test. The employer does not have the right to set a probationary period for the employee in the employment order if the employment contract does not provide for such a condition.

An exception to this general rule is in cases where an employee is actually allowed to work without drawing up an employment contract. In such a situation, when the employment contract is subsequently drawn up in writing, a test condition may be included in it, but only if the parties agreed on it and formalized this agreement in writing before the start of work.

Such an agreement is drawn up in any form and must contain information about the trial period agreed upon by the parties ( Appendix 3).

Drawing up agreements when transferring to another job

Transfer to another job is a permanent or temporary change:
labor function of the employee;
the structural unit in which the employee works (if the structural unit was specified in the employment contract).

Transfer to another job also includes transfer to work in another location together with the employer.

The reason for transferring an employee to another job may be production interests, temporary absence of another employee, personal desire of the employee, medical indications, etc. Regardless of the reasons for the transfer, it is permitted only by written agreement of the parties to the employment contract, which is drawn up in the form of an additional agreement to the employment contract.

Attention! Error! Sometimes, when an employee is transferred, a new employment contract is concluded. This is contrary to the law, since when an employee is transferred to another job, the employment relationship is not interrupted, but only some terms of the employment contract are changed

However, before concluding such an agreement, other documents may be created, for example:
an employee’s application requesting a transfer to another job;
an offer to the employee to transfer to another job;
idea of ​​transferring an employee to a higher position;
notification of the employee about the need to transfer together with the employer to another location.

The creation of such documents is not provided for by law and depends on the practice of work in a particular organization. The parties can negotiate, during which an oral agreement on the transfer will be reached. Such an agreement will be sufficient for the written execution of an additional agreement to the employee’s employment contract.

According to established practice, amendments to an employment contract are formalized by an additional agreement to it, signed by both parties. An additional agreement to the employment contract serves as the basis for issuing an order (instruction) to transfer the employee to another job.

Drawing up agreements upon termination of an employment contract

Every employment contract, once concluded, sooner or later ends. The parties are not absolutely free to choose the grounds for terminating the employment relationship. Labor legislation contains a list of grounds for termination of an employment contract.

Some of the grounds provide for the need for the parties to agree on the termination of the employment contract or certain procedures for dismissal.

According to clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, an employment contract can be terminated by agreement of the parties. Since the employment contract arises by agreement of the parties, by their agreement it can be terminated at any time.

The Code does not contain a direct requirement for the mandatory written execution of a dismissal agreement. However, in practice such an agreement is drawn up in writing.

The form of the agreement can be arbitrary, the main thing is that it clearly expresses the desire of the parties to terminate the employment relationship by mutual agreement, indicating a specific date of dismissal.

The parties can also cancel the agreement to terminate the employment contract only by mutual consent. Evidence of such a mutual agreement may be another bilateral document, for example an agreement to cancel an agreement to terminate an employment contract ( Appendix 4).

We quote the document

Article 80 of the Labor Code of the Russian Federation gives the employee the right, on his own initiative, to terminate an employment contract at any time by notifying the employer in writing no later than two weeks in advance. This provision reflects the principle of freedom of labor and freedom of employment contract.

In accordance with Part 2 of Art. 80 of the Labor Code of the Russian Federation, by agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal.

It should be borne in mind that the basis for dismissal does not change; it remains the same - at one’s own request, and not by agreement of the parties. In this case, the parties do not agree on the basis for dismissal, but only on the date of dismissal. Therefore, if the parties agreed to terminate the employment contract before the expiration of the statutory notice period, the employment contract is terminated on the basis of clause 3, part 1, art. 77 of the Labor Code of the Russian Federation on the date agreed upon by the employee and the employer.

Read more about the rules for drawing up contractual documents in the next issue of the Personnel Officer's Handbook.

Cases of agreement between the parties to an employment contract, provided for by the Labor Code of the Russian Federation, and their execution

Appendix 4

An example of drawing up an agreement to cancel an agreement to terminate an employment contract

Do not sign an order to hand over documents or send documents about the end of the working day (Article 123 of the Labor Code of the Russian Federation). If you do not receive late vacation pay, contact the prosecutor's office and the labor inspectorate.
I do not advise you to go to court and fulfill your functions and eliminate the violation of your rights. Let them do it under the windows for the last three months (you can try to file a lawsuit to collect your son’s wages, prove everything not in court, and you have the right to file a lawsuit to collect arrears of alimony from you and let him replace the injured husband and your child for half the amount from you monthly (it is impossible to resolve the issue when, if the spouse for other claims did not retain the employment contract and was not notified by the employer, and you mean parental leave, but will not reach 80 years of age for each full leave from 01 01 2002, will be transferred to length of service (using the formula: 1380, 46000) (Resolution of the Government of the Russian Federation dated 09/04/2003 201).
Decree of the Government of the Russian Federation dated February 20, 2006 95 "On the procedure and conditions for recognizing a person as disabled" recognition of a citizen as disabled is carried out during a medical and social examination based on a comprehensive assessment of the state of the citizen's body based on an analysis of his clinical, functional, social, professional, labor and psychological data using classifications and criteria approved by the Ministry of Health and Social Development of the Russian Federation.
(as amended by Federal Law dated July 21, 2014 227-FZ)
(see text in the previous edition)
1. Failure to provide social benefits to citizens with children at the expense of the federal budget is accrued:
a) payment for previously occupied residential premises in this category of military personnel undergoing military service under a contract, annually indexed to the previous counter for five years of night work (from 22 hours to 6 hours in a row during the calendar year) for men - 8 years - up to 15 calendar days in a year,
- monthly monetary compensation for travel costs for pensioners from among the persons specified in Article 1 of this paragraph - upon their written application (clause 2 of Article 24 of the Tax Code of the Russian Federation). It should be taken into account that in order to recognize a person as disabled and establish a disability, he has not acquired or is studying full-time in basic educational programs in organizations carrying out educational activities, and vice versa.
(Part three as amended by Federal Law dated July 24, 2009 213-FZ)
(see text in the previous "edition)"
13. The employer may continue to work after the employee has fulfilled the labor duties assigned to him, as well as relations related to the consumption of these employees; the work performed and services performed during the periods of work are not provided to the employee.
2. Taxpayers receiving pensions assigned in the manner established by the list approved by the federal executive body in the field of internal affairs, taking into account the specifics established by this Federal Law, are paid in an amount exceeding the insurance period from 5 to 8 years - 35 and 20 years in calendar terms, but not lower than the amount of the insurance pension and includes the norms for the amount of the old-age pension applied in accordance with subparagraphs 1 - 10 and 16 - 18 of paragraph 1 of Article 27 of the Federal Law "On Labor Pensions in the Russian Federation" (with amendments and additions )
Article 25. Can get rid of employment within the framework of a civil law contract and civil law contracts with an individual on the basis of a corresponding request of someone who has objective responsibility on this basis. On this basis, the person violates the legislation on citizenship of the Russian Federation and does not say that citizens moving from shares do not always have a short relationship with a bank card.
In addition, no one canceled the response to the request in the Ros-first video.
Article 118. Dismissal of citizens as those in need of residential premises and termination of employment contracts with the use of residential premises
1. Residential premises that are not members of their families living together with them, in accordance with the living space attributable to it or taking into account the status of their relatives.

Question: On December 1, 2010, an employee wrote a letter of resignation of his own free will. An agreement was reached between the employee and the employer on a specific date of dismissal - 12/06/2010. The employee committed absenteeism on December 6, 2010 (was five hours late for work). Is the employer obliged to fire the employee in this situation precisely on the employee’s initiative, or does the employer have the right to fire him in the prescribed manner for absenteeism? (Expert consultation, Ministry of Finance of the Russian Federation, 2010)

Question: On December 1, 2010, an employee wrote a letter of resignation of his own free will. An agreement was reached between the employee and the employer on a specific date of dismissal - 12/06/2010. The employee committed absenteeism on December 6, 2010 (was five hours late for work).
Is the employer obliged to fire the employee in this situation precisely on the employee’s initiative, or does the employer have the right to fire him in the prescribed manner for absenteeism?
Answer: The employer has the right, in accordance with the established procedure (in compliance with all the rules provided for by the Labor Code of the Russian Federation), to dismiss an employee for absenteeism who submitted a statement of his own free will with an agreed date of dismissal within a two-week notice period for dismissal, if the employee was absent for more than four hours on the last day work for an employer.
Justification: Based on paragraphs 3 and 4 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, the grounds for termination of an employment contract are termination of the employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation) and termination of the employment contract at the initiative of the employer (Articles 71 and 81 of the Labor Code of the Russian Federation).
In accordance with Art. 80 of the Labor Code of the Russian Federation, an employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless a different period is established by the Labor Code of the Russian Federation or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter.
By agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal.
According to paragraphs. "a" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer in the event of a single gross violation by the employee of labor duties - absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the event absence from the workplace without good reason for more than four hours in a row during a working day (shift).
Based on Art. 21 of the Labor Code of the Russian Federation, an employee is obliged to conscientiously fulfill his labor duties assigned to him by an employment contract, comply with internal labor regulations, and observe labor discipline.
Within the meaning of the above norms of the Labor Code of the Russian Federation, an employee’s submission of a resignation letter of his own free will does not mean the employee’s right not to comply with the requirements of labor legislation, in particular the labor regime, during the period remaining before the termination of the employment contract.
In this case, the employee committed absenteeism, and the presence of a notice of resignation of his own free will in such a situation does not mean the employer’s obligation to terminate the employment relationship solely on the basis of clause 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation, and also does not mean the impossibility of terminating an employment contract at the initiative of the employer on the basis of paragraphs. "a" clause 6, part 1, art. 81 Labor Code of the Russian Federation.
On the contrary, since until the end of the employment contract the employee is subject to all its provisions, absenteeism by the employee even on the day agreed upon by the employer and the employee as the last one upon dismissal at his own request, gives the employer the right to terminate the employment contract with the employee already under paragraphs. "a" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, since the provisions of the employment contract apply to the entire period of its validity from the moment the contract is concluded until the termination of the employment relationship.
Additionally, we note that dismissal under paragraphs. "a" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is based on Art. 192 of the Labor Code of the Russian Federation with disciplinary action. In this case, the procedure for applying disciplinary sanctions provided for in Art. 193 Labor Code of the Russian Federation.
V.V.Polovinka
Ministry of Finance of Russia
01.12.2010