The rights of an employee upon termination: our view of the issue

Your rights when you are fired.

This is the second edition of our new “Your Rights” column. Last time we talked about your rights at work. Now it’s about what you are entitled to when you are fired. All of this only applies if you have an employment contract.

You can be dismissed at your own initiative, at the employer’s initiative, including due to downsizing or liquidation, or by agreement of the parties. Depending on this, there are different procedures for notification and amounts of payments.

There are many nuances with these payments, but you need to know the general rules in order not to lose money, time and work. Important: The article below only gives general cases. When there are nuances, seek qualified help from a lawyer.

Unfortunately, not all employers respect your rights when you are fired, and not even all of them know them. Now you can remind them of that. Print out the poster and read how to get the most out of your termination.

Download the poster to printPDF, 815 KB

The right to resign at will.

Why. No one can make you work if you don’t want to. The important thing is to give your employer advance notice and work the allotted time. If you don’t like the job, aren’t satisfied with the pay or the conditions, you have the right to leave.

How to exercise it. If you want to quit, write a free-form statement. Keep one copy with a stamp.

You must give notice of termination in advance. In general cases, the application must be written two weeks before leaving work – this period includes weekends and holidays. Sometimes the notice period is shorter:

  1. Immediately after you apply – if you have retired, enrolled in school, or if your rights are violated.
  2. After three days – if you are fired during a probationary period, from a seasonal job, or when your employment contract is for less than two months.
  3. After one month – for directors and athletes or coaches with contracts longer than four months.

The day of application is not counted in the term. Working off begins the next day. If you do not work the allotted time and just leave, you may be fired for truancy.

If the date of dismissal has not come, the application can be withdrawn. But sometimes the employer may not keep you at work after that: for example, if a replacement is found and an employee from another organization is transferred to your position.

See also:

The right to get paid for time worked

Why. If you want to resign, or even if you are fired for absenteeism, you must be paid in full. It’s money for your work, regardless of your reason for leaving. The time worked before you are fired is also paid.

How to implement. Your severance pay is treated like a regular job, with all your allowances and bonuses. On the day of dismissal, you should be given the full amount. Ask for a payslip to see what you were paid and how much tax was withheld. If the employer did not give you all the money or feeds you the breakfast, remind about the material, administrative and criminal responsibility for late wages.

Compensation for late pay per day at a Central Bank rate of 7.75%

See also:

Entitlement to compensation for unused vacation time

Why. You have the right to annual leave with pay. But if for some reason you did not take all the days, you can collect the money for that time when you are fired. And not just for last year, but in general for all the days you have accumulated during your employment. It is the employer’s responsibility to pay this compensation. It does not depend on the reason for dismissal.

How to implement. Check the pay slip on the day of dismissal. Compensation should be paid along with your salary. Count how many days of vacation you did not use. Check or ask for an explanation of how your average earnings were calculated. If you were not counted for the entire time you worked, remind them of the Constitutional Court’s explanations, penalties, interest, and moral damages.

See also:

Entitlement to severance pay

Why. There is a mandatory severance payment: it is paid when you are laid off or liquidated. It is the average earnings for the month. Two weeks’ severance pay must be paid if you have to leave because your employment contract has changed, your health deteriorated, you were drafted into the army, you cannot move, or if the previous employee has been reinstated to the same position. If you have a contract of less than two months, there is no mandatory severance pay. Neither will there be if the sole proprietorship is closed.

You can also get severance pay if this compensation is in the employment contract – that is, if the employer so chooses.

How to implement. Study the employment contract or collective agreement: is there anything about severance pay. When firing you, properly document the reason. If you are made redundant, do not write a letter of resignation. If you are offered to move for work, do not write your own letter of resignation without giving a reason, or you will lose the right to compensation. If you are entitled to such an allowance, check for which period you will be paid. The money should be given on the day you are fired.

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The right to keep your average earnings

Why. It’s compensation for the time until you find a job if you lose your job for reasons beyond your control. If you are laid off because of downsizing or company liquidation, your employer must keep your average earnings while you look for work, but not for more than two months. If you are registered with the Employment Service, you may be paid for a third month. Severance pay in the amount of a month’s salary is counted against this amount, not added to it.

How to implement. Properly process the dismissal. If you are being made redundant, it is not a resignation at will. If you write a statement saying you are leaving, there is no payout. If you are dismissed due to redundancy or liquidation, you should immediately register with the Employment Service. If you do not find work, get a certificate and show it to your employer to get money for the third month without work.

You can get your average earnings back if you apply to your employer no later than 15 working days after the end of the second or third month, respectively. Miss this deadline and the employer will not pay. But even if the employee has applied in time, the money is often not given in liquidation. Feel free to write complaints: first to the employer, then to the labor inspectorate or prosecutor’s office.

See also:

Right to compensation for early termination

Why. If your employer gives you notice of termination on such and such a date, but fires you earlier, you are entitled to compensation. This works when employees are fired, for example, because the company is closing down or you need to reduce your workforce.

Usually, you are given two months’ notice and get paid your salary the whole time. But sometimes they fire you earlier. And then you must be paid your average earnings for the number of days remaining before the original layoff date.

How to implement. If you find out about a liquidation or layoff, watch for notices. You must be notified in writing and officially that you will have to quit in two months. Oral agreements do not count. If they fire you earlier, you can, but only with payment of your average earnings until the end of the notice period.

Check the pay slips, go to work before the date of dismissal, and if they offer to quit earlier, demand compensation. Evaluate the situation: sometimes it is better to quit your job and register with the unemployment office to receive unemployment benefits than to wait for payments from a bankrupt employer.

See also:

The right to stay employed when you are laid off

Why. When employers downsize or downsize, they don’t lay people off as they want, but they have to figure out who has the right to stay on the job for different circumstances. For example, these are employees with high productivity and qualifications. If these characteristics cannot be evaluated or are the same for all, other criteria are taken.

To keep the work should be family with children, the only breadwinner with income, injured or sick because of work, some people with disabilities. And there are workers who can’t be laid off at all: pregnant or single mothers, for example.

How to implement. If you’re about to be laid off, find out if you have the right to stay in your job: what special benefits there are, who else works in those positions, who they want to keep instead of you. If you have the right to stay, or if you cannot be laid off at all, then pursue it. The Labour Inspectorate, the trade union, the prosecutor’s office and the court can help you.

Dismissal without preemptive rights and prohibitions threatens the employer with fines and criminal liability. And you will be reinstated, paid money for forced absence and moral damages.

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The right to take back your employment history with the correct record

Why. You need your employment history book for registration in a new place of work. If you have switched to an electronic workbook, the employer must issue employment information on the form STD-R at termination of employment . The paper employment record and the STD-P certificate indicate when and why you were dismissed. From these documents, you can understand whether the person left on his own, was downsized, or he was absent and lost his job for it.

How to implement. The employment booklet or STD-R certificate must be issued on the day of dismissal, i.e. the last day of work. Check what is written in the workbook or STD-P certificate about the dismissal: dates, wording, numbers of clauses and articles of the labor code. This is all strict, no amateurism. If something is wrong, demand a correction: you have the right.

If the employer does not return the workbook or information about employment activity, and you because of this you can not get a new job, you can demand compensation – average earnings for each day of delay. But here you will have to collect evidence. Even if you do not succeed in collecting compensation in your favor, threaten the employer with a complaint and a fine.

The fine for delaying the issuance of a work record book

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The right to get certificates of income and contributions

Why. While you were working, you had income tax withheld and insurance premiums paid for you. These are all important after you quit: income is for employment services, loans, new jobs and deductions, and contributions are for retirement.

How to implement. Write an application for certificates and copies of orders – everything related to your job and containing your data. You can ask for a copy of the order of employment, transfer to another position, certificate of income, contributions and average earnings. If you have lost your employment contract, ask for a copy.

Make sure that the documents are properly attested. If you are not given the documents, refer to articles 5.39 and 5.27 of the CAO RF: the employer can be fined for this. And if due to the delay of the certificates you cannot receive your allowance, you can recover your losses from the employer.

What rights an employee has when being dismissed

As a party to the employment contract, employees have certain rights when they are terminated for various reasons. Their list depends on the specific reason for the employee’s departure. Conventionally, they can be divided into general – which are available to all regardless of the grounds for termination of employment relations – and special – which appear to the employee only under certain circumstances of dismissal.

The rights common to all on termination of employment

The labor legislation (LC RF) provides a certain list of grounds for termination of employment relations with an employee. Thus, an employee can be dismissed:

  • By agreement with the employer (Article 78 of the Labor Code of the Russian Federation);
  • At his own initiative (Article 80 of the Russian Labor Code);
  • At the employer’s initiative (Article 81 of the Russian Labour Code);
  • for reasons beyond the control of the parties (Article 83 of the Russian Labour Code).

It is unacceptable to discriminate or violate the rights of the quitting employee.

Regardless of the severance reason any employee should be given the opportunity on the last day of work

  • An opportunity to familiarize himself with the order of dismissal, which clearly states the basis under the Labor Code of the Russian Federation for the termination of his employment relationship;
  • a filled-out work record book or STD-R form containing information about his/her employment history;
  • a full settlement of the amounts due, including regardless of the reason for termination of cooperation:
    • salary for the time worked;
    • Compensation and incentive payments;
    • Compensation for unused leave;
    • additional accruals guaranteed by the labor or collective agreement.
    • Extracts from forms СЗВ-М, СЗВ-staž, ДСВ-3;
    • Extract from Section 3 of the form RSV;
    • Statements of earnings from the beginning of the year to the date of dismissal and for the two preceding years in the form approved by Order No. 182n of the Ministry of Labor of Russia, dated April 30, 2013;
    • Other documents requested by the employee in writing related to his or her work.

    These rights are general and do not depend on the reason for the termination of employment, the employee’s status, or whether he or she has any benefits. The employer has no right to deprive them under any circumstances.

    Specific rights of the employee, depending on the grounds for dismissal

    Depending on which ground for termination is applied, the list of guarantees to the dismissed may expand . This should be taken into account in the process of termination of the employment contract for each employee.

    Thus, the rights of the employee at resignation, in addition to those mentioned above, include the free expression of will to terminate the employment relationship with prior notice to the employer. At the same time he must comply with the minimum period of notice of the desire to leave, which is:

    • for fixed-term and seasonal contracts up to 2 months – 3 calendar days ;
    • for managers of companies – 1 month ;
    • for other cases – 2 weeks.

    This time is counted from the day following the date of application. At the end of this period, the employer must dismiss the employee.

    During this period the employee has the right to withdraw the application. Furthermore it is possible to exercise the right for vacation in case of dismissal by submitting an application for vacation with subsequent resignation (Article 127 part 2 of the Russian Labor Code). In this case, an order must be issued, the employee must be familiarized with it, all documents must be issued, and full payment must be made on the day preceding the start date of the leave.

    If the right to leave with subsequent dismissal is exercised, the application may only be withdrawn up to the date preceding the start of the leave.

    In the case of dismissal at the initiative of the company, the list of additional rights depends on the specific reason for the termination of the employment contract:

    • liquidation or reduction presuppose additional warning of the employee about the parting at least 2 months before its date, as well as the payment of severance pay for 1 month and preservation of earnings for the 2nd and 3rd month after dismissal (in the regions of the Far North and equated territories, the period of payment of average earnings can be up to 6 months);
    • The employee’s qualification mismatch must be confirmed by the results of the attestation, with which the employee must be acquainted with against his/her signature. In addition, if there is other work corresponding to the skills, he should be offered it;
    • In the case of dismissal for culpable actions it is necessary to observe the rules of bringing disciplinary responsibility by the employer. The employee must be acquainted with all the acts, the results of official inspections and investigations against his/her signature.

    In some cases, when dismissed due to circumstances not related to the will of the parties , the employee is also entitled to severance pay in the amount of the average earnings for 2 weeks. These are:

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