Termination prevention cancellation. How to terminate the contract correctly: the necessary actions. Dismissal of a long-term absent employee

Psychostimulants and nootropic drugs are actively used in many areas of medicine. They allow you to normalize the patient's well-being, correct his emotional state. One of these drugs is Phenibut. It is prescribed to combat anxiety, depression, and certain cognitive impairments. The drug gently affects the functioning of the nervous system, normalizing cerebral circulation and metabolism. At the same time, the drug does not belong to the list of narcotic drugs, that is, it is not addictive and can be used for a long time.

Withdrawal syndrome in adults often develops against the background of the use of high doses of potent substances. The use of Phenibut is associated with a minimal risk of complications. At the same time, the formation side effects from the use of this anxiolytic is associated with violations of the rules for its use. To prevent possible withdrawal after taking the drug, the dosage must be reduced gradually. In the event of an individual reaction to the use of the medication, it is necessary to seek medical help.

Basic information about the appointment of "Fenibut"

There are many indications for the use of this nootropic. The most common include:

1. Neurotic and obsessive states, accompanied by constant fear, anxiety or aggression.
2. Migraines and dizziness also respond well to Phenibut therapy. This is due to the ability of the drug to restore metabolic processes in the brain and improve cerebral circulation.
3. Various sleep disorders, including nightmares.
4. Nervous tics, as well as stuttering in children under 10 years of age.
5. Asthenic syndrome, manifested by constant fatigue, general weakness and malaise.
6. Vegetovascular dystonia is a common indication for the use of nootropic drugs.
7. "Fenibut" is also prescribed in the treatment of withdrawal syndrome against the background of refusal to use alcohol and drugs.

Thus, the drug can be used for both a child and an adult. The justification, as well as the required dose of the medicinal substance, are determined by the doctor on the basis of the collected history and the individual characteristics of the patient.

Toxicity of the agent

The drug has a mild effect on the body. Its chemical transformations occur mostly in the liver. In this case, the drug does not have a cumulative effect, that is, it does not accumulate in the body. The metabolic products of "Fenibut" are excreted through the kidneys, as well as through the intestines due to passage through the hepatobiliary system and excretion into the bile. Associated with this mechanism of drug transformation is the required caution in its use in people with severe hepatic impairment. The medication is not recommended for patients suffering from acute or chronic renal failure.

If an anxiolytic is taken for a long time and in high dosages, its toxic effect on hepatocytes is possible. The risk of fatty degeneration of liver cells increases, which is accompanied by a violation of its function. At the same time, the Phenibut withdrawal syndrome in children and adults develops extremely rarely, which is associated with its mild effect.

Symptoms and treatment of overdose

Too high a concentration of the drug in the blood leads to intoxication and failure of the internal organs. Similar consequences occur when the instructions for using the product are violated, as well as when the required dose is significantly exceeded. Clinical manifestations of this pathological condition include:

1. Great oppression, and constant daytime sleepiness.
2. Gastrointestinal disorders such as vomiting and diarrhea. Somatic manifestations of the effects of anxiolytic drugs are not uncommon, since these substances have a systemic effect on the body.
3. The development of acute liver failure associated with lipid degeneration of its parenchyma. These effects are rarely reported. Elderly patients, as well as people with a history of disorders of the hepatobiliary system, are predisposed to their formation.
4. The occurrence of acute renal failure is recorded due to the damaging effect of the decay products of Phenibut on the filtration apparatus. There is a decrease in the daily volume of urine, and symptoms of general intoxication of the body develop.

If such clinical signs occur, the medication should be discontinued. Treatment of overdose manifestations is based on accelerating the excretion of drug metabolites from the body. Gastric lavage is carried out, enterosorbents are prescribed. In severe cases, hospitalization of the patient and infusion therapy in a hospital are required.

Danger of addiction

This anxiolytic has a mild effect on the nervous structures. This is one of the lightest drugs that has a slight sedative effect, and also allows you to normalize the metabolism of nervous tissue. It does not cause the formation of dependence, since it does not belong to the group of narcotic compounds. However, with long-term use of large doses of the drug, the development of Phenibut withdrawal syndrome is possible, which lasts no more than two weeks. At the same time, it is important to distinguish between abstinence after the end of the use of a tranquilizer and the increase in clinical signs of the underlying disease. This requires a doctor's consultation.

withdrawal syndrome

Such consequences of using the drug are very rare. Usually, the drug is well tolerated by patients, even when prescribing a long course of treatment with high dosages. In this case, it is recommended to stop using the medication gradually, over a period of 3-4 weeks. This allows you to prevent possible unpleasant consequences. The Phenibut withdrawal syndrome is similar in symptoms to hangovers, colds, and clinical signs of some mental disorders. This is related to the misconception about the narcotic effect of the drug. Withdrawal of the drug is rarely accompanied by unpleasant consequences, therefore, if irritability, insomnia or an obsessive state occur, it is necessary to seek medical help.

A rare case of dependence on Phenibut in a 35-year-old man is described. The patient took the drug as maintenance therapy during the period of getting rid of alcohol dependence. At the same time, the patient combined an anxiolytic with kratom, which has a psychedelic effect. Such treatment allowed him to give up the uncontrolled use of alcoholic beverages. However, when trying to stop taking Phenibut, the man faced severe withdrawal symptoms. It was manifested by increased irritability, anxiety and aggression. The duration of the use of the nootropic agent at the time of seeking medical help was 10 months.

To save the patient from the need for medical support, complex treatment was required. It involved communicating with a doctor, as well as the use of drugs such as Baclofen and Suboxone. It took more than two months of therapy to completely stop using Phenibut and kratom. The problem was the long-term uncontrolled use of substances, as well as their incorrect combination and the lack of adequate treatment for alcohol dependence. Complete remission in the patient was noted after 24 weeks of fighting the problem.

Prevention of withdrawal syndrome

To avoid the possible negative impact Phenibut, it is important to follow the doctor's recommendations. You can not independently adjust the dosage, as well as stop using the medicine without consulting a doctor. Gradual refusal to take nootropic and anxiolytic drugs helps prevent the development of a possible withdrawal syndrome. If withdrawal symptoms are still formed, symptomatic agents are used, as well as psychotherapy aimed at identifying possible causes ailments.

The denunciation of the contract must take into account the norms and rules of civil circulation. As a rule, if it happens at the will of one side, then the other opposes it. As a result, the question arises of how to terminate the contract, providing for all possible options painless exit from this relationship.

Termination of the contract by the will of both parties

In the event that both parties decide to terminate the contractual relationship, the termination procedure takes place by agreement between them. The form of the document depends on the form of the original contract, that is, if it is signed and agreed upon by the parties, then the denunciation agreement must be drawn up in a similar way. The heads of organizations or their proxies have the right to sign such papers.

Before terminating the contract, the document on denunciation must provide for the grounds for termination (if its procedure is voluntary, then the basis will be the will of the parties), as well as the moment of termination of the performance of contractual obligations. If there are unfulfilled or unfinished obligations, it is necessary to provide for the timing of their closure.

Denunciation unilaterally

The grounds applicable for can be provided both in the Civil Code of the Russian Federation and in the document itself. First of all, these are late fulfillment of obligations, non-payment under the contract, deprivation of the contractor of permits for the affected types of activities and licenses, as well as repeated violation by the party (or both) of the terms of the contract. Most importantly, in order to annul an agreement, there must be good reason. Since such termination is not a deal, it is carried out by going to court if it was not possible to resolve the problem out of court.

Termination of the loan agreement

An ordinary borrower, as a rule, is not very well versed in the legal peculiarities of the relationship between the creditor and the debtor. That is why the majority of citizens, when drawing up a contract, agree to the illegal conditions of banks. In this case, the question arises of how to terminate the loan agreement.

There must be reasons for this. For example, if the bank does not have the appropriate permission from the Central Bank to carry out certain or all types of activities, then such a document is considered illegal and has no legal force.

An agreement may also be terminated if information about the proposed loan product is not fully displayed if the agreement does not clearly spell out such constituent elements of the loan as interest, commissions, terms, etc.

Loses its validity and an agreement in which the conditions have changed unilaterally without agreement with the debtor.

In addition, it may be due to the lack of a bank seal or a personal signature of the borrower. No less important here is the cancellation of the security agreement. To cancel the agreement, you must apply to the court.

How to terminate a loan agreement? It should be borne in mind that absolutely any such agreement must be concluded only in writing, since otherwise it is difficult to prove the illegal actions of the bank.

Cancellation of the rental agreement

Before terminating a lease, you must familiarize yourself with this procedure before signing all the papers. This will help to avoid various surprises later.

Just like any other civil law agreement, the lease agreement is denounced by agreement of the parties. The conditions for this can be anything.

The grounds for termination at the request of the parties are fixed in the Lessor may cancel the contract ahead of schedule if the tenant uses the property with repeated violations, thereby significantly worsening its condition, or does not comply with the terms of the agreement. When, during the payment period established by the agreement, the other party does not make more than two consecutive payments, the landlord can easily solve the problem of how to terminate the agreement ahead of schedule. He can also do this because of the unproduced overhaul property within the terms specified in the contract.

The tenant also has the right to terminate the contract ahead of time. The grounds may be the behavior of the landlord, who prevents or does not provide property for use in accordance with the agreement. In addition, the reason for the denunciation is often the shortcomings of the property not specified by the lessor, which prevent its full use.

How can I terminate the contract? For the tenant, the reason for the cancellation of agreements may be the lack of major repairs, which are the responsibility of the owner of the property.

Termination of the contract of sale

How to terminate a sales contract? When solving this problem, it must be remembered that in the event of denunciation, the parties do not have the right to demand the return of what was performed under the obligation before the termination of the agreement, unless otherwise provided by the contract or legislation.

Cancellation of the insurance contract

Most in a simple way The solution to this problem is the termination of the contract by agreement of both parties. But how to terminate the insurance contract and at the same time refuse further cooperation? There are two options here: the insurance company itself refuses due to non-fulfillment by the other party of the clauses of the contract, or this is done by the client using the insurance services, who can denounce the contract only if the insurance was not mandatory, but voluntary. At the same time, it must be remembered that the amount of contributions paid before the termination of the agreement will not be returned to the citizen. But still, you can write an application for a refund if you decide to terminate the contract before paying all insurance premiums.

Termination of the agreement with the bank

Getting a loan is not a problem now, but how to terminate an agreement with a bank? Despite the laboriousness and rather large time costs, this can be done, and in two ways.

Most the best option is denunciation by agreement of the parties. There are usually no special restrictions here, but such termination may entail some consequences (reimbursement or damages). In this case, the parties sign a written agreement with the specified amount and terms of payment.

In order to terminate the agreement unilaterally, it is necessary to apply to a civil court, since this is the only way to terminate the agreement with the bank. But this only happens in special occasions(for example, the bank violates its obligations).

Also, the contract can be canceled at the initiative of the bank. This situation occurs when the client hides information about the quality, loss or reduction of collateral, violates the procedure for repaying the debt, or has already squandered funds for other purposes. Another denunciation can occur if the financial situation of the client has become worse. In cooperation with legal entity the reason for termination is the reorganization, bankruptcy, liquidation of the enterprise.

How to terminate an employment contract

The basis may be the usual agreement of the parties (the other party must inform in writing about its decision within 3 days). Also, the termination of the contract is due to the expiration of its validity period. Termination of the agreement can occur at the initiative of the employer (he is obliged to notify the employee in writing at least one month in advance) or the employee (he is given the same period to warn).

Denunciation may also occur due to circumstances beyond the control of the parties. This may be, for example, the death of an employee, his conscription into the army or the entry into force of a court sentence, a state of incapacity or partial capacity, etc.

If a person has moved to elective office or one of the parties violates the terms of the contract, cancellation of agreements may also occur. But in any case, the employer must issue an act of termination of the contract indicating the reason and return to the employee all stored documents, including the work book.

Termination of OSAGO contract

There can be many reasons for this, but the termination procedure itself seems to many to be complicated and confusing. So how to terminate the OSAGO agreement?

First of all, you must write a statement indicating that the denunciation is your desire, as well as attach a passport and an OSAGO policy to it. Within two weeks, the insurance company is obliged to pay out a portion proportional to the number of unused days. From the date of the written application, the contract is considered terminated.

Denunciation of the agreement with Rostelecom

How to terminate the contract? With Rostelecom, this is as easy to do as in previous cases.

The first thing to do is to write an application to the specified organization. In it, indicate the reason for termination (non-fulfillment or poor-quality fulfillment of your obligations), for which you, in fact, denounce the agreement unilaterally (indicate the clause of the contract), and also demand the return of the funds remaining on the account.

The application must be written in two copies, while requiring that the document that remains with you be stamped and marked with acceptance. The company must give a written response within two weeks. Here's how to terminate the contract with Rostelecom at the initiative of the client.

Our service agreement provides for the right of any party to terminate the agreement unilaterally with 30 days' notice. Here is the item:

“A party under this agreement has the right to terminate it unilaterally by notifying the other party in writing at least 30 days in advance.”

Please tell me, is there any form of notice of termination or can it be in free form? Do we have to hand in a signed notice or can it be mailed or faxed? After 30 days, will the contract be considered automatically terminated or will it be necessary to sign some other act?

Legal consultation

First of all, I would like to draw your attention to the fact that the cited clause on unilateral termination of the contract was drafted legally incorrectly. In Art. 450 of the Civil Code varies unilateral termination of the contract(in this case, the contract is terminated only through the court and by decision of the court) and unilateral refusal to perform the contract(out-of-court procedure, termination of the contract without trial).

Your wording does not allow you to confidently attribute it to one of the specified methods of terminating the contract. However, most likely, the court recognizes the clause under consideration as a condition for the judicial termination of the contract, although for an unambiguous conclusion, the text of the entire contract should be analyzed.

The fact is that in order to terminate the contract unilaterally through the court, the unilateral will of the party to the contract is also necessary, in other words, the party wishing to terminate the contract must send a written notice of termination, and if the other party does not agree to terminate the contract, then the first party after that entitled to file statement of claim demanding termination of the contract.

Secondly, Art. 782 of the Civil Code expressly provides the right of the parties to the contract for the provision of services at any time to unilaterally withdraw from the contract. If the contract is canceled by the contractor, then he is obliged to compensate the customer for losses in full, and if the contract is canceled by the customer, then he is obliged to reimburse the contractor for the costs incurred (without lost profits). This rule cannot be changed by agreement of the parties. Therefore, if you qualify the clause of the termination agreement you quoted as providing for an out-of-court procedure, then the clause should be considered invalid in terms of limiting the term of the party's right to withdraw from the contract. However, most likely this item will be considered by the court as an additional right (to legal right unilateral withdrawal from the contract) unilateral termination of the contract in a judicial proceeding.

This approach is also confirmed by judicial practice on the execution and termination of contracts.

You cited a fairly common wording about the unilateral termination of the contract, but legally it can be recognized as at least incorrect from two positions. One should also not hope that the widespread occurrence of this legal error will save in court - the court will act according to the law, which is confirmed by judicial practice.

Finally, for your questions. The notice of termination of the contract (as well as the notice of unilateral refusal to perform the contract) is drawn up in free form, however, the wording can be decisive in the event of a dispute in court (you can find some examples from judicial practice using the links above).

It is better to get the signature of the other party on the notification, but you can also send it by registered mail with acknowledgment of receipt or with a description of the attachment. Fax can be sent if it is provided by the contract. It is also desirable to determine in the contract from which moment the period provided for the unilateral refusal to execute the contract begins to run. To terminate the contract as a result of a unilateral refusal to execute it, nothing is needed except notification, unless, of course, otherwise provided in the contract itself.

* The relevance of the answer was checked for compliance with the legislation in force on 01/08/2012.

The general procedure for processing the termination of an employment contract is regulated. This article describes the algorithm of actions that must be followed.

The termination of the employment contract is formalized by the order (instruction) of the employer. Usually a unified form is used, which is approved.

The employee must be familiar with the order against signature. A certified copy of the order can be handed over to the employee at the request of the employee.

By general rules The day of termination of the employment contract is always the last day of the employee's work, except in cases where the employee did not actually work, but the place of work was retained for him.

On the day of termination of the employment contract, the employer must:

• issue a work book to the employee (if the employee is not at work on the day of dismissal, then a notification is sent to him about the need to pick up the work book or agree to send it by mail);
• make a calculation with him in accordance with;
• at the written request of the employee, issue certified copies of documents related to work.

An entry in the work book on the basis and reason for the termination of the employment contract is made in strict accordance with the wording of the Labor Code or other federal law, with reference to the relevant article, part of the article, paragraph of the article.

There has long been a dispute among HR professionals as to which wording to use: “employee fired”, “employment contract terminated” or “employment contract terminated”? The Labor Code does not give an unambiguous answer to this question, so employers often choose the wording at their discretion.

Grounds for dismissal of an employee

1. Dismissal during probationary period

The establishment of a probationary period for employment is regulated by Art. 70 TK. It provides a list of employees who are not subject to a probationary period:

• persons elected on the basis of a competition for the corresponding position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms;
• pregnant women and women with children under the age of one and a half years;
• persons under the age of 18;
• persons who have received secondary vocational education or higher education according to state-accredited educational programs and for the first time entering work in the acquired specialty within one year from the date of receiving professional education of the appropriate level;
• persons elected to an elective position for paid work;
• persons invited to work in the order of transfer from another employer as agreed between employers;
• persons concluding an employment contract for a period of up to two months;
• other persons in cases provided for by the Labor Code, other federal laws, collective agreement.

The probation period may not exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law.

During the probationary period, personnel officers must record any deviations in the work of a new employee using memoranda, acts. When the trial period ends and the employer evaluates the results of the newcomer unsatisfactorily, he must document the validity of his decision.

The employer can terminate the employment contract before the expiration of the test period with an unsatisfactory result, but he will need to notify the employee in writing (in the notification format) no later than three days, indicating the reasons that served as the basis for such a decision. At the same time, you need to be prepared for the fact that the employee has the right to appeal this decision in court.

If the employee refuses to sign the notification, an appropriate act is drawn up, which records the fact that the employee has read the notification and refuses to sign it. Based on the notification, an order T-8 is issued to terminate the employment contract. If the employee refuses to sign the order, then at the bottom of the order the personnel officer makes an inscription by hand that the employee was familiarized with the order, but refused to sign, or an appropriate act is drawn up. In any case, it is important to record the fact that the employee is familiar with the order.

The employee can also terminate the employment contract at his own request during the probationary period. To do this, he needs to submit an application, while he does not have to indicate the reason for dismissal. The notice period in this case, according to Art. 71 of the Labor Code, will be three calendar days. The dismissal itself is made on the basis (termination of the employment contract at the initiative of the employee).

2. Voluntary dismissal

Which article of the TC to focus on:.

The employee has the right to terminate the employment contract at his own request, but he must notify the employer in writing no later than two weeks in advance, unless another period is established by the Labor Code or other federal law. The specified period begins the next day after the employer receives the employee's application for dismissal. By agreement of the parties, this period may be reduced.

In cases where the dismissal at the initiative of the employee is due to the impossibility of continuing his work, the date of dismissal can be set independently. In Art. 80 of the Labor Code contains grounds for when such an option is possible: enrollment in educational institution, retirement, established violation of labor laws by the employer, etc. The practice of labor relations shows that there are many more reasons to reduce the notice period. For example, an illness that prevents the continuation of this work, if there is an appropriate medical certificate; moving to another area ().

The list of valid reasons for dismissal on the day of filing an application can be enshrined in the internal labor regulations of the organization or in the collective agreement.

Prior to the expiration of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out if another employee is not invited to his place in writing, who, in accordance with the Labor Code and other federal laws, cannot be refused to conclude an employment contract. For example, in Art. 64 of the Labor Code states that it is forbidden to refuse to conclude an employment contract for employees invited in writing to work in the order of transfer from another employer.

Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer must:

• issue a work book to the employee;
• issue other documents related to work, at the written request of the employee;
• make a settlement with him.

How to draw up documents?

When an employee has the right to reduce the notice period, he writes the date of dismissal, which is mandatory for the employer, that is, he cannot unilaterally change this date on his own. Sometimes an employee is not entitled to a benefit, but asks to be fired earlier. For example, he writes a statement on May 15, and asks to be fired on May 19. In this case, the employer may act under Art. 80 TK. If he agrees to dismiss earlier, he accepts the application and issues an order. If he does not agree, he draws up a notice for the employee, in which he explains that he cannot accept such a statement on the basis of Art. 80, which requires a two-week notice and asks for a new application.

Based on the order, an entry is made in the work book (this is done on the last day before the issuance of the book, so that the employee immediately signs in the book of accounting for the movement of work books).

3. Dismissal by agreement of the parties

Which article of the TC to focus on:.

The basis for dismissal "by agreement of the parties" was included in the Labor Code in 2006, and Art. 78 of the Labor Code, which is devoted to this issue, contains only one sentence: "The employment contract can be terminated at any time by agreement of the parties to the employment contract." No matter how such a basis for dismissal is perceived, it is necessary to proceed first of all from the fact that the word “agreement” itself indicates a peaceful basis for termination of employment relations.

Despite the fact that the agreement is not provided for by the Labor Code, this is a very important document, since it specifies the conditions under which the parties terminate the employment relationship.

4. Dismissal due to the expiration of the employment contract

Which article of the TC to focus on:.

The grounds on which a fixed-term employment contract is concluded are spelled out in. Most often - for the duration of the performance of the duties of an absent employee, for whom the place of work is retained.

If a fixed-term employment contract is concluded with an employee, then the expiration date of the employment contract is associated with a certain date, which is prescribed in the contract itself. Three days before this date, the employer is obliged to notify the employee of the expiration of the period by means of a notice.

Sometimes it is impossible to determine the expiration date of the employment contract in advance, in which case the contract does not indicate the expiration date, but the condition. In this case, it is not necessary to notify the termination of the employment contract, since the very fact that the main employee enters work means the termination of the employment contract of the employee who replaced him.

In Art. 193 of the Labor Code spells out how to issue a disciplinary sanction. The algorithm of actions of the employer in this case is quite clear. First of all, when a disciplinary violation is discovered, an act is drawn up, which records the fact of the violation, all the circumstances under which it was discovered, the date, and witnesses. Then a written explanation is required from the employee (the deadline for providing the document is two business days). The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction. In the presence or absence of an explanation, the employer makes a decision based on his assessment of the employee's actions.

The deadlines for applying the penalty must be taken into account - no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, he was on vacation, as well as the time required to take into account the opinion of the representative body of employees. A disciplinary sanction may not be applied later than six months from the day the offense was committed.

A memorandum on the commission of a disciplinary offense is sent to the name of the director (the person who can make decisions on this issue). And the employee is given a notice against signature with the requirement to provide a written explanatory note. If he does not provide it, then an act is drawn up.

If misconduct is proven, disciplinary action will be taken. With “soft” variants of violations, the employee is first reprimanded. At the same time, the order on the application of a disciplinary sanction contains links to all documents that confirm the grounds for applying the sanction.

7. Dismissal of a long-term absent employee

The legislation does not provide clear tools for formalizing such dismissals. Problems often arise because the employer does not know how to deal with a person's prolonged absence from work if there is no information about the reasons for this absence. At the same time, he does not have the right to dismiss an employee until the fact of violation of labor legislation is established.

The registration of such a situation begins with the preparation of an act for each working day stating that a person is absent from work for an unknown reason (the first act indicates the time of absence “from ... to”, and the rest - “during the entire working day”).

Acts on the absence of an employee should first be drawn up daily, in case of a long absence - as of the day the next time sheet was submitted.

Letters are sent to the employee with a request to give an explanation of the reasons for the absence (must be sent by registered mail with a list of attachments).

If there is no news from the missing employee for more than a year, the employer, guided by the provisions of Art. 42 of the Civil Code of the Russian Federation and Chapter 31 of the Code of Civil Procedure of the Russian Federation, may recognize the missing employee as missing through the court. According to Art. 42 of the Civil Code of the Russian Federation, a citizen may, at the request of interested persons, be recognized by the court as missing if during the year there is no information about his place of residence at his place of residence. If the court satisfies the stated requirements to recognize the missing employee as missing, the employer will be able to terminate the employment contract with this employee under clause 6, part 1, art. 83 of the Labor Code of the Russian Federation.

Subscribe to our channel in Telegram to learn about all the most important changes that concern business!

Termination and annulment of an employment contract: some issues of theory and practice

On the termination of the employment contract. L.S. Tal wrote about the significance and attractiveness of the idea (theory) of the “stability” of an employment relationship, which was justified by the Austrian E. Steinbach, the German O. Zvidenek-Südengorst, and others. The essence of this theory was to prohibit the dismissal of an employee without sufficient reason and the employer’s obligation to compensate for losses . As noted by L.S. Tal, abuse is the dismissal of a worker, caused not by the interests of the enterprise, but by other objectively insufficient motives. In this case, the employer must be liable for the damage caused to the dismissed employee.
L.S. Tal especially emphasized that, in contrast to civil law contracts, "the close connection of the work contract with the personality of the worker has a particularly strong effect on the rupture of the employment relationship." This is expressed, in his opinion, in the following provisions, which are contained in the UPT, and are also provided for in the draft law on the employment contract of the Provisional Government:
1) for the termination of the employment contract, in addition to the general grounds (expiration of the term, agreement of the parties, death of the employee), grounds are provided for, due to the peculiarities of the labor relationship;
2) the law contains a number of regulations against the sudden termination of an open-ended employment contract without sufficient reason. When the contract is concluded for an indefinite period, each party must notify the other party in advance of its intention to terminate the contract;
3) circumstances that do not have such significance in other obligation contracts are recognized as sufficient reasons for unilateral termination of the employment contract.
Thus, L.S. Tal once again focused on the special nature of the work (labor) contract, named the features of the grounds for terminating the work contract, in contrast to the grounds for terminating civil obligations. The idea of ​​providing legal guarantees for the rights of an employee upon dismissal runs through all studies of the problems of termination of an employment contract. L.S. Tal wrote about the need for judicial control to ensure that an employer does not abuse its right to fire workers. But at the same time, he noted the other extreme of the first Soviet decrees and labor laws. In his opinion, the participation in the resolution of this issue of factory committees and other workers' organizations was a heavy burden that hindered the freedom of dismissal. The direct result of this system was a catastrophic decline in productivity. L.S. Tal assumed that "life will undoubtedly very soon force the legislator to abandon such extremes." But this prediction came true only in the next century.
K.M. Varshavsky, characterizing the Labor Code of 1922, also turned to the principle of stability (sustainability) of the labor contract. According to the Labor Code of 1922, as the scientist wrote, the worker has the right to terminate the contract at any time, and the employer is bound by the grounds for termination of the employment contract provided for by law. The internal basis of this principle, in his opinion, is that until the worker is guaranteed against arbitrary termination of the contract, he will never be equal to the employer.
Later, in the Soviet theory of labor law, the issues of termination of an employment contract were studied both in an applied manner and in the light of more general problems of legal guarantees of an employee's labor rights, stability of labor relations, and freedom of labor.
Scientific comments by labor scientists of the current labor legislation and law enforcement practice made it possible to identify gaps and contradictions, to substantiate specific proposals for further improvement of the legislation on termination of an employment contract. Many of these proposals were reflected in subsequent codifications of labor legislation. As a general illustration, let us dwell on some grounds for terminating an employment contract.
The dismissal of an employee at his own request as a basis for terminating an employment contract had a difficult fate in labor law. K.M. Varshavsky wrote on this occasion that "the issue of early termination of an employment contract by workers has undergone a complex evolution in terms of gradual growth and strengthening of workers' rights." Legislative acts of the XVIII and even the beginning of the XIX century. such early termination was not allowed at all. Russian pre-revolutionary legislation until 1912 retained criminal penalties for unauthorized leaving industrial workers from work. The decisive step in this evolution was the termination of the contract, which was allowed for the first time by the German Civil Code (1899), not only due to the grounds listed in the law, but also in general in the presence of “good reasons”. The issue of "good reasons" was decided by the court at its own discretion.
As we noted earlier, the Labor Code of 1918 significantly limited the dismissal at the request of the employee. From 1940 to 1956, dismissal of one's own free will was generally prohibited. The Labor Code of 1922 differentiated the procedure for exercising the right of an employee to terminate an employment contract, depending on its type: a fixed-term and open-ended contract. A worker could terminate a fixed-term employment contract before the expiration of the term only if certain conditions were met (violation of labor laws by the employer, etc.). Termination of open-ended contracts was allowed at the initiative of the worker at any time, but with the obligatory warning of the employer within the prescribed period. Such a differentiation in the procedure for terminating an employment contract was preserved in the Labor Code of 1971. The Labor Code of the Russian Federation eliminated such a distinction, equalizing the rights to terminate an employment contract at the initiative of employees who entered into both a fixed-term and an employment contract for an indefinite period.
In the Labor Code of 1971 (Article 31), it did not differ in consistency in the legal regulation of the said grounds for dismissal. As A.A. Fatuev, in the 80s of the twentieth century. “excessive zeal of lawyers in finding means to combat staff turnover led to the division of reasons for dismissal of one’s own free will into respectful and disrespectful” and an increase in the warning period from two weeks to one and two months. According to A.A. Fatueva, such edition of Art. 31 of the Labor Code is the embodiment of strong-willed, administrative methods for solving labor problems and therefore needs to be revised, i.e. return to the previous, original wording of 1971.1 Subsequently, the legislator restored the original wording of the named article. In the Labor Code of the Russian Federation, this position was retained by the legislator (Article 80).
Termination of the employment contract at the initiative of the employer. The Labor Code of 1918, as noted earlier, limited the dismissal of workers both at the request of the employee and at the initiative of the enterprise, institution, organization. L.S. Tal on this occasion wrote that "the freedom to dismiss workers and select them cannot be taken away from the administration of an enterprise without prejudice not only to it, but also to the national economy." However, this does not exclude, in his opinion, judicial and professional (parity) control over the fact that the employer does not abuse his right. L.S. Tal wrote about the significance and attractiveness of the idea (theory) of the "stability" of the labor relationship, which was substantiated by the Austrian E. Steinbach, a German
O. Zvidenek-Syudengorst and others. The essence of this theory was to prohibit the dismissal of an employee without sufficient reason and the obligation of the employer to compensate for losses. As noted by L.S. Tal, abuse is the dismissal of a worker, caused not by the interests of the enterprise, but by other objectively insufficient motives. In this case, the employer must be liable for the damage caused to the dismissed employee.
K.M. Varshavsky, characterizing the Labor Code of 1922, also turned to the principle of stability (sustainability) of the labor contract. According to the Labor Code of 1922, as the scientist wrote, the worker has the right to terminate the contract at any time, and the employer is bound by the grounds for termination of the employment contract provided for by law. The internal basis of this principle, in his opinion, is that until the worker is guaranteed against arbitrary termination of the contract, he will never be equal to the employer.
The dismissal of an employee for a systematic violation of labor discipline was provided for in the Labor Code of 1922, 1971, as well as in the Labor Code of the Russian Federation. Meanwhile, the concept of "systematic" caused ambiguous doctrinal interpretations. Thus, some Trudovik scientists understood a repeated violation of labor discipline during the year as a systematic violation. This position was subsequently reflected in the guiding decisions of the Supreme Court of the USSR and the RSFSR. Other authors believed that the systematic violation and repetition are different concepts, one can speak of systematicity only if there have been more than two violations of labor discipline.
Concerning the dismissal in connection with the commission of a crime under the Labor Code of 1922 (paragraph “e” of Article 47), various assessments and interpretations were also expressed. A number of scientists believed that dismissal in this case cannot take place at all if the employee is sentenced to a measure of punishment not related to deprivation of liberty, even if a work-related crime has been committed. This statement was objected to by other Trudovik scholars, who believed that one should proceed not from what measure of punishment was chosen, but from whether it is possible further use employee at the previous job, whether this would be contrary to the interests of the enterprise. Meanwhile, the legislators in the Labor Code of 1971 and the Labor Code of the Russian Federation chose the first option, indicating that dismissal is allowed only if the employee is sentenced to a punishment that excludes the continuation of the previous work. Labor Code of 1922 In order to guarantee the labor rights of the employee, some scientists proposed to increase this period of temporary disability to 4 months in a row, which our legislator did in the Labor Code of 1971 (Article 33). In the Labor Code of the Russian Federation, there is no named basis for terminating an employment contract. This is no coincidence, since, in accordance with the international legal standards of the labor rights of an employee, temporary disability cannot serve as a basis for terminating an employment relationship.
Until the beginning of the 90s of the XX century. domestic labor scientists unanimously noted as legal guarantees: 1) a closed (exhaustive) list of grounds for termination of an employment contract provided for by law; 2) the obligation to coordinate the dismissal with the trade union committee of the organization (the function of control of trade unions in resolving the issue of dismissal of an employee); 3) additional (special) guarantees for the dismissal of certain categories of workers (women, teenagers, elected trade union workers); 4) judicial protection and reinstatement of illegally dismissed employees. As noted in the literature on labor law, “a distinctive feature of Soviet labor legislation, expressing its humanistic, democratic orientation, is that the position of the enterprise and the employee upon termination of the employment contract is not the same: the employee is free to dismiss at his own request, the right of the administration to dismiss significantly limited And this is good, this is certainly the dignity of the current legislation.
Perestroika since the mid-80s, the subsequent privatization of state-owned enterprises since the early 90s dictated new conditions for managing and organizing labor. And a continuation of the merits of Soviet labor legislation, which were mentioned above, as R.Z. wrote. Livshits, becomes a disadvantage. The former Soviet labor legislation excessively regulated the behavior of participants in labor relations, bound their freedom and initiative. According to a number of Russian Trudovik scientists, an exhaustive list of grounds for dismissal comes into conflict with new situations that cannot be foreseen in advance. R.Z. Livshits rightly noted that “the very idea of ​​limiting the freedom of the administration to dismiss workers should be preserved under all conditions. But the implementation of this idea should be associated with other legal means. It is much more logical to indicate as the basis for dismissal not a specific situation, but the reason that caused it. According to the scientist, these reasons can be reduced to three. First, changes in the organization of production and labor (liquidation of the organization, staff reduction, long downtime, etc.). Secondly, the inconsistency of the employee with the work performed in the absence of guilty actions on his part (lack of the necessary qualifications, failure to pass certification, etc.). Thirdly, the guilty actions of the employee. V.M. Lebedev supported the idea of ​​an open list and justified dismissal and proposed to abandon the procedure for obtaining the employee's consent to dismissal, replacing it only with a notification of the dismissal from the trade union body. The last proposal was legalized in the Labor Code of the Russian Federation in the form of taking into account the opinion of the trade union body. However, the legislator did not consider it possible to legalize the proposal on an open list of grounds for dismissal.
As already noted, during the period of “perestroika”, the Labor Code was supplemented with new grounds for terminating an employment contract, for example, refusal to work due to a change in essential working conditions (clause 6, article 29). Labor relations received special legal regulation in cases of change of the owner of the enterprise, reorganization of the enterprise. In these situations, labor relations continued with the consent of the employee, the termination of the employment contract at the initiative of the employer was allowed only with a reduction in the number of employees.
Among the problems that became the subject of discussions of domestic Trudovik scientists were the problems of judicial protection of the rights of illegally dismissed workers. So, O.V. Smirnov raised the question of the nature of claims for reinstatement: are these claims related to claims for recognition, claims for award or claims for transformation? A.I. Stavtseva disclosed the issues of jurisdiction and the procedure for considering labor disputes on reinstatement, payment for forced absenteeism, compensation for moral damage, analyzed the judicial practice of considering labor disputes on specific grounds for dismissal of employees. A.K. Bezina raised the problem of the legal significance of the circumstances revealed after the termination of the employment contract. Usually, an employment contract is terminated on the basis of the facts and under the circumstances that took place at the time of its termination. However, the situation is not ruled out when a number of circumstances of legal significance for the resolution of a labor dispute are revealed after the termination of the employment contract. A.K. Bezina subdivided these circumstances into the following groups: 1) new circumstances that arose after the dismissal; 2) unverified circumstances (facts); 3) hidden circumstances; 4) revealed circumstances that existed at the time of issuing the dismissal order, but were not known to the parties to the employment contract. A.A. Fatuev spoke in a negative light about the trend in jurisprudence and labor legislation to give labor dispute resolution bodies the right to review employer decisions, in fact, because they are inappropriate. As an example, Art. 136 of the Labor Code of 1971, according to which labor dispute settlement bodies have the right to take into account the compliance of the disciplinary sanction with the severity of the misconduct committed. In other words, these bodies have the right to enter into a discussion of the question of the appropriateness of any disciplinary measure, including dismissals for violations of labor discipline. And this, according to A.A. Fatuev, already goes beyond the function of jurisdiction. In the Labor Code of the Russian Federation (in the original version), this position of the scientist found legal support: the authority of the jurisdictional bodies in question is excluded from the procedure for applying a disciplinary sanction (Article 193). Subsequently, the article received a new edition, but with the restoration of the previous criteria for bringing to legal responsibility. According to the Labor Code of the Russian Federation (as amended by the Federal Law of June 30, 2006 No. 30-FZ), when imposing disciplinary sanctions, the severity of the misconduct committed and the circumstances under which it was committed must be taken into account (Art. 192).
Many provisions of the Soviet doctrine of labor law on the judicial protection of the rights of illegally dismissed workers have not lost their relevance and are of particular interest in connection with the preparation of a draft labor procedural code.
The Labor Code of the Russian Federation largely retained the basic guarantees for protecting employees from unjustified and illegal dismissals and transfers to another job, and in some cases these guarantees were supplemented with new ones. These include the following:
1) a closed list of grounds for termination of an employment contract, which is established by the Code, federal laws (Article 77 of the Labor Code of the Russian Federation). An exception to general rule is the recognition of contractual grounds for dismissal in cases provided for by the Labor Code of the Russian Federation (for example, termination of an employment contract with an employee of a religious organization (Article 347), with homeworkers (Article 312), with employees working for employers - individuals(Article 307), with the head of the organization (Article 278)). By the way, in the concept of the Model Labor Code of the CIS, it is recommended to preserve in the codes of the participating countries the norms that have justified themselves in practice, which determine the grounds for termination of labor relations, since their refusal will entail uncontrolled violations of the labor rights of citizens upon dismissal. At the same time, it is especially noted that the list of grounds for dismissal at the initiative of the employer provided for by the Code should be recognized as exhaustive and not subject to expansion by other acts. Our legislator allows the expansion of this list by other federal laws;
2) the right of the employee to maintain labor relations, which corresponds to the obligation of the employer in cases provided for by law, local regulations, collective agreement, to offer the employee all the qualifications corresponding to his state of health (also lower positions and lower-paid jobs). In the Labor Code of the Russian Federation (as amended by the Federal Law of June 30, 2006 No. 30-FZ), this guarantee was supplemented by an indication of the obligation of the employer to offer all available vacancies that meet the above criteria, including in another locality, if provided collective agreement, labor contract (Art. 81, 83, 84). It should be noted that these novelties of the Labor Code of the Russian Federation were the result of the legalization of the established judicial practice.
So, in the Ruling of the Supreme Court of the Russian Federation of November 3, 2006 No. 5-В06-94, it was noted that when carrying out the procedure for dismissing employees due to staff reductions, the employer is obliged to provide them with another available job (vacant position) in the same organization, including all its branches and structural subdivisions located in the given locality. Refusing to satisfy the stated demands, the Court concluded that K. had been dismissed in accordance with the requirements of the law. However, in the provisions of the above-mentioned norms of the Labor Code of the Russian Federation, in the sense given to them by the established law enforcement practice (highlighted by us. - Auth.), It was assumed that the employer was obliged to dismiss an employee due to a reduction in the number or staff of the organization's employees to offer him another job available to the employer in the given locality ( vacant position) in the same organization, corresponding to the qualifications of the employee, and in the absence of such work - another vacant lower position available in the organization or lower-paid work that the employee can perform taking into account his education, qualifications, work experience and state of health.
Moreover, the establishment of a unified procedure for the employment of laid-off workers in cases where the law imposes such an obligation on the employer should be considered as an essential guarantee of labor rights;
3) the right of an employee to receive a severance pay in cases provided for by labor legislation, a collective agreement, a local normative act, an employment contract, payment for forced absenteeism, compensation for moral damage;
4) the right of an illegally dismissed or transferred employee to be reinstated in his previous job (Article 394);
5) the establishment of guarantees for the protection of employees from illegal dismissals: a) general (prohibition of dismissal at the initiative of the employer of an employee during his temporary disability and while on vacation, etc.) and b) special in relation to certain categories of employees (for example, representatives of employees ( 374376, 405), etc.).
It should be noted that the Concept of the CIS Model Labor Code recommends expanding the list of employment guarantees upon termination of an employment contract. It is proposed to include in the code the obligation of the employer to take measures for proactive vocational training, retraining and employment of workers released on innocent grounds, a ban on hiring new workers during the period of reduction in the number or staff; the right of workers dismissed on such grounds to first-priority employment within a certain period after dismissal (for example, one year).
At the same time, the grounds and procedure for terminating an employment contract, provided for by the Labor Code of the Russian Federation, must provide the necessary legal conditions for achieving optimal coordination of the interests of the parties to the employment contract, including the interests of the employer. It is in the interests of the employer that the above-mentioned contractual grounds for termination of an employment contract appeared in the Labor Code of the Russian Federation, new grounds for termination of an employment contract at the initiative of the employer, disclosure of legally protected secrets, including commercial and official secrets, adoption of an unreasonable decision by the head of the organization (branch, representative office), his deputies and chief accountant (clause 6 "c", 9 article 81), etc. A similar assessment can be received by the new institution of cancellation of an employment contract (article 61). This is evidenced by the practice of the Constitutional Court of the Russian Federation.
Thus, by Determination of April 21, 2005 No. 144-O, it was refused to accept for consideration the complaint of citizen Permyakova Svetlana Vasilievna about the violation of her constitutional rights by part four of Article 81 of the Labor Code Russian Federation, according to which, in the event of termination of the activities of a branch, representative office or other separate structural subdivision of an organization located in another locality, termination of employment contracts with employees of these structural subdivisions is carried out according to the rules provided for in cases of liquidation of the organization.
The Constitutional Court noted that the limitation of the scope of the obligation of the employer to offer dismissed employees another job by the locality where they actually work and live is due to the need to ensure a balance of interests of the parties to the employment contract, and the employment of these employees at the request of their employer in other organizations (including subsidiaries and dependent companies) would mean an unacceptable restriction of the rights of these organizations as independent employers.
A number of guarantees of the labor rights of workers, including the labor rights of women, were formulated in the Labor Code of the Russian Federation in a liberal, compromise manner. For example, the Labor Code of 1971 (as amended on September 25, 1992) contained a prohibition on employer-initiated dismissal of pregnant women; women with children under the age of three; workers with disabled children; single mother or single father with a child under the age of 14; except in cases of liquidation of the organization, when dismissal with mandatory employment is allowed (Article 170). The Labor Code of the Russian Federation has reduced the list of guarantees upon dismissal, since the unconditional ban on dismissal at the initiative of the employer is extended only to pregnant women (with the exception of cases of liquidation of an organization or termination of activity by an individual entrepreneur). Other categories of persons with family responsibilities may be dismissed at the initiative of the employer on guilty grounds (Article 261). Thus, the modern theory and legislative practice of terminating an employment contract are based on the legal harmonization of the interests of employees, employers and the state. Since the rights and guarantees of the named subjects of labor law are “in the same coordinate system”, the expansion of rights, guarantees of one side leads to their limitation, reduction for the other. Our legislator needs to find the optimal balance of interests of the subjects of labor law.
So, in the Ruling of the Constitutional Court of the Russian Federation of March 20, 2007 No. 217-O “On the refusal to accept for consideration the complaint of citizen Sychkov Yury Nikolaevich about the violation of his constitutional rights by subparagraph “e” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation”, providing for the possibility of terminating an employment contract at the initiative of the employer in the event of a violation by the employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences, the above trend of development of modern institution of the labor contract. The Constitutional Court of the Russian Federation considers that this ground for termination of an employment contract is one of the ways to protect the violated rights of the employer, on the one hand. On the other hand, the Labor Code of the Russian Federation contains a number of provisions aimed at ensuring an objective assessment of the actual circumstances that served as the basis for dismissal, and at preventing the unreasonable application of a disciplinary sanction (Article 193). In addition, the current legislation does not provide for the publication of these acts for general information. meanwhile, in accordance with the requirement h. 3 Article. 68 of this Code, when hiring, the employer is obliged to familiarize the employee with the internal labor regulations, other local regulations directly related to the employee's work, including the local regulation containing labor protection requirements. At the same time, the fact that the employee has become acquainted with such a local normative act can be verified in court. dismissal, setting deadlines for warning the parties to the employment contract about dismissal, payment of severance pay, etc. Further development We see the legal regulation of the termination of an employment contract under Russian law in line with established international legal standards. Currently, ILO Convention No. 158 on Termination of Employment Relations (1982) and the corresponding Recommendation No. 166 (1982), as well as Convention No. 173 on the Protection of Workers in the Event of Bankruptcy of the Employer (1992) and supplementary its Recommendation No. 180. These conventions are adopted taking into account the post-World War II legal model of dismissal in Western countries. This legal model for terminating an employment contract includes the following safeguards for the right to protection in case of dismissal.
1) "Respect", the validity of the reason for dismissal. Dismissal at the initiative of the entrepreneur is allowed only if there are grounds related to the employee's abilities, his behavior or caused by production necessity (organizational and economic reasons). Discriminatory dismissals are prohibited.
2) Warning of the parties to the employment contract for most layoffs. The term of the warning may depend on the length of service, the category of employees, etc. The employee has the right to a reasonable notice of dismissal or to monetary compensation instead of a warning if the employee has not committed a serious disciplinary offence.
3) Compliance with the dismissal procedure. The employer is obliged to notify the worker in writing of the decision to terminate the employment contract with him. In cases provided for by national legislation, provision may be made for prior consultation with workers' representatives. During the period of notice, the employee, in order to find another job, has the right to receive a release from work of a reasonable duration, provided without loss of wages, at a time convenient for both parties. National legislation may establish additional restrictions and obligations for employers in cases of collective layoffs, including layoffs in the event of an employer's bankruptcy.
4) Payment of severance pay upon dismissal, the amount of which may depend on the length of service, age. A worker who is laid off for economic reasons is given the benefit of priority rehiring if the employer re-employs workers of similar qualifications.
5) The right to protection against unjustified dismissals in court and other independent competent bodies. The burden of proving the validity of the dismissal rests with the court either on the employer or on both parties. If the court (or other competent authority) finds the dismissal unjustified and if, in accordance with national law or practice, it does not consider it possible to reinstate the worker in his previous job, the judgment should impose on the employer the obligation to pay the worker appropriate compensation.
Cancellation of the employment contract. This institution is a novelty and was not known to the previous codifications of labor legislation. Meanwhile, in the 1970s in the theory of Soviet labor law, this problem became the subject of discussion. The discussion was based on the ambiguous practice of applying labor legislation in cases where the employee did not start work within the prescribed period after the conclusion of the employment contract. In other words, the actual implementation of labor relations did not take place. A.K. Bezina, analyzing the judicial practice of terminating an employment contract, raised the question of filling the gap in legal regulation. Such a gap was the consequences of an employment contract not regulated by the Labor Code of 1971, which did not entail the implementation of labor relations. In this case, employers chose one of two ways to solve the problem: 1) dismissal of the employee for absenteeism; 2) dismissal on the grounds "in connection with not starting work." The last ground for dismissal by the Labor Code of 1971 was not provided. In turn, judicial practice ambiguously assessed the named orders of the employer.
In the science of Soviet labor law, the problem under consideration also did not receive an unambiguous solution. A.K. Bezina proposed to legalize special grounds for terminating unrealized employment contracts. In her opinion, the grounds for terminating an unrealized employment contract and an employment contract, the implementation of which has already begun, should not coincide. Thus, it was a question of termination of the employment contract in connection with the refusal of the parties to implement it. At the same time, the author proposed to legislatively determine the legal consequences of the employee's refusal to implement the employment contract, depending on the reasons for the refusal (valid and disrespectful). At the same time, she believed that the employer should not be deprived of the opportunity, under certain circumstances, to refuse to implement the employment contract.
A different vision of solving this problem was substantiated by R.Z. Livshits. He believed that in these cases the order for admission to work is canceled and the agreement is annulled. In other words, the employment contract is considered not concluded. It was not about terminating the employment contract, but about recognizing it as not concluded. It should be noted that the previously named positions of Trudovik scientists were in the nature of general approaches, directions in the search for a solution to the problem of determining the legal consequences of unrealized labor contracts. The problem itself has not received a deep theoretical justification and resolution.
This affected, first of all, the legal consolidation of the legal structure of the annulment of the employment contract. According to the original version of the Labor Code of the Russian Federation (Article 61), if the employee did not start work on time without good reason within a week, then the employment contract is canceled. A logical question arose: what is the fundamental difference between the dismissal of an employee for absenteeism (from the first day of absenteeism) and the above-mentioned case of cancellation of an employment contract? In both cases, the employer initiates the dismissal, the reason for the absence of the employee is disrespectful, the burden of proving the reason lies with the employer. Distinctive feature the annulment of the employment contract served only a term. Upon dismissal for absenteeism, the termination of the employment contract is allowed for one day of absenteeism, and in case of cancellation, the employer does not have the right to part with the employee before the expiration of a week after the conclusion of the employment contract. Was it worth introducing a new institute of cancellation into the Labor Code of the Russian Federation for the sake of such a solution to the problem of an unrealized employment contract? In this regard, the Labor Code of the Russian Federation was amended (as amended by the Federal Law of June 30, 2006): it provides for the exclusion of all the above conditions for the cancellation of an employment contract - an unexcused reason and the so-called waiting period. Thus, the employer is given the right to refuse to implement the employment contract if the employee did not start work within the period established by the contract, regardless of the reason (good or bad). This new decision of the legislator will also raise questions. For example: why can an employee's illness, due to which he did not start work, cause, in fact, the termination of an employment contract? Apparently, in answering this question, the legislator provided some kind of “compensation” for the reduction in the level of guarantees of labor rights. According to the Labor Code of the Russian Federation (Article 61), the cancellation of an employment contract does not deprive the employee of the right to receive mandatory social insurance in the event of an insured event in the period from the day the employment contract was concluded until the day it was canceled. We believe that the posed problem of unrealized legal consequences will not receive an adequate legal resolution until the legislator determines the legal nature of the new legal structure for the cancellation of an employment contract. In this regard, three possible solutions to the problem are considered.
The first is related to the termination of the employment contract. The initiator of such termination is the employer. Here, the reason for the absence of an employee is legally significant. In the event of an unexcused reason for the employee's refusal to implement an employment contract that has entered into force, we should talk about the termination of the employment contract for violation of labor discipline. The refusal of the employee, caused by a good reason, excludes the dismissal of the employee at the initiative of the employer. With this option, it makes no sense to legalize the legal structure of the annulment of an employment contract. It is no coincidence that in modern literature there are proposals to abandon the legal structure of the annulment of an employment contract. So, Yu.P. Orlovsky believes that for these cases, the list of grounds for terminating an employment contract should be expanded due to violation of the rules for concluding an employment contract (Article 84 of the Labor Code of the Russian Federation), including a new ground for terminating an employment contract: the absence of an employee on the day the work began, which was agreed by the parties. But this option also leaves open the previously raised question: why can an employee’s illness, due to which he did not start work, cause the termination of an employment contract?
The second option for solving the problem of unrealized contracts is associated with the legalization of the legal fiction “an employment contract is considered not concluded”. IN AND. Kaminskaya emphasized that fiction is an “artificially created, far-fetched, deliberately invented” technique by the legislator, “the fruit of the collective imagination.” In our case, the legislator may recognize the employment contract as not concluded, canceled, i.e. the existing fact is recognized as non-existent, not giving rise to legal consequences from the moment such an employment contract is concluded. In this regard, the reasons for which the employment contract was not implemented within the prescribed period will be legally insignificant. It is sufficient that the employee is absent from work on the first working day after the entry into force of the employment contract.
Note that the two options listed above have successively replaced each other in the Labor Code of the Russian Federation. The version of the failed employment contract considered above as a legal fiction, in our opinion, ensures exclusively the interests of the employer. The provision of the law on the right of an employee to receive mandatory social insurance in the event of an insured event is limited to a very short period: from the date of conclusion of the contract to the day of its cancellation. In practice, this may take as little as two days. Cancellation of the employment contract is made unilaterally by the employer, which gives unreasonable advantages to the employer. While the employee will be deprived of the right to work, regardless of the reason for not starting work. Note that in civil law, where the construction of recognizing the contract as not concluded has received a "registration", it is implemented in court.
The third option for solving the problem of unrealized employment contracts is related to the cause of this legal phenomenon - the consensual nature of the employment contract. As a general rule, an employment contract comes into force from the day it is signed by the parties, unless otherwise provided by law or the contract. The problem of annulment of an employment contract can be completely removed from the agenda by turning a consensual employment contract into a real one. To do this, it is enough to establish in the Labor Code of the Russian Federation the rule that an employment contract enters into force from the day the employee starts work, unless otherwise provided by regulations or an employment contract. This option creates "uncertainty" in the implementation of the employment contract. Note that it is no coincidence that the start date of work is qualified as a mandatory condition of the employment contract (Article 57 of the Labor Code of the Russian Federation).
In our opinion, all of the above options for solving the problems of canceling an employment contract as “failed by the deadline specified in the contract” do not correspond to the legal nature of the said contract. Meanwhile, this construction is widely used in relation to civil law contracts. In fact, this is a civilistic legal construction that has not received an unequivocal qualification either in positive law (the Civil Code of the Russian Federation) or in the science of civil law. Let's try to figure out how the elements of this legal structure are applicable to labor relations.
Usually, judicial practice recognizes civil law contracts as not concluded due to the fact that the parties have not reached an agreement on the essential terms of the contract in the required proper form (Article 432 of the Civil Code of the Russian Federation). In the field of civil law, this statement is not in doubt. With regard to labor relations and an employment contract, this construction is not applicable. In the Labor Code of the Russian Federation, the category of "recognition of an employment contract as not concluded" is mentioned only in the meaning of its negation. According to Art. 57 of the Labor Code of the Russian Federation, if at the conclusion of the employment contract it did not include any information and (or) conditions ( mandatory conditions and information), then this is not a basis for recognizing the employment contract as not concluded. In addition, as we wrote earlier, our legislator justifiably refused to divide the terms of an employment contract into essential and optional ones (Labor Code of the Russian Federation as amended by Federal Law No. 197-FZ of December 30, 2001). As noted earlier, a civil law contract is considered concluded not only when the parties reach an agreement on the essential terms of the contract, but also subject to compliance with the requirements for the form of a transaction by law. If we turn to an employment contract, then a violation of the requirements for its written form does not entail the recognition of the contract as not concluded (Article 67 of the Labor Code of the Russian Federation).
Meanwhile, modern judicial practice in civil cases follows the path of a broad interpretation of the grounds for recognizing civil law contracts as not concluded in relation to those transactions that are executed (in whole or in part), for example, in cases where there is no state registration of transactions with real estate. In fact, the jurisprudence "invented" a previously unknown special claim "On the recognition of the contract as not concluded", different from the claim for the recognition of the transaction as invalid. With regard to labor relations, such a practice, as a rule, is hardly possible, since the actual admission to work is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his representative (Article 67 of the Labor Code of the Russian Federation). But there is an exception to this rule for those cases where the actual admission was made by an improper subject. In the latter case, the employment contract is not recognized as concluded. In the Labor Code of the Russian Federation, the legal consequences of this situation for the employee are not defined, which should be recognized as a gap in legal regulation.
A completely different picture emerges with regard to determining the legal consequences of civil law contracts recognized as not concluded (failed). Judicial practice and the doctrine of civil law this socially significant problem resolves ambiguously, since the named concept is not clearly traced in the positive legislation. In the science of civil law, these discussions were conducted in pre-revolutionary literature and continue to this day. Scientists and practitioners are divided into two camps. Some believe that unconcluded contracts should be considered invalid and the consequences of invalid transactions should be applied to them. Others insist on a different legal nature and different consequences of recognizing the contract as not concluded and recognizing the contract as invalid. When a contract is recognized as not concluded, the rules on restitution, confiscation sanctions, compensation for damage are not applied to it, on the contrary, it is proposed to apply the rules on unjust enrichment.
The listed legal consequences of recognizing a civil law contract as invalid or not concluded also cannot be recognized as an adequate legal means of resolving the problem of non-concluded (failed) employment contracts.
Based on the foregoing, we come to the following conclusions.
1. The legal regulation of the termination of an employment contract is based on a combination of the principles of freedom of contract (freedom to terminate it) and public law guarantees of the employee's labor rights. The latter means, to a certain extent, a restriction on the freedom to terminate the employment contract at the initiative of the employer, but this restriction ensures the actual equality of the parties to the employment contract, protecting the economically weaker side of the contract from unjustified dismissals. The Labor Code of the Russian Federation preserves the legal tradition that has developed in our country of a closed list of grounds for terminating an employment contract established by the Labor Code of the Russian Federation and other federal laws. This is the exclusive domain of the federal legislator. The Labor Code of the Russian Federation allows an exception from the general rule - contractual grounds for terminating an employment contract for certain categories of workers in order to differentiate and individualize in the regulation of labor relations. But even in this case, the appearance of contractual grounds for terminating an employment contract is established exclusively by the Labor Code of the Russian Federation or in the manner prescribed by it (Article 252). Russian legislation on the termination of an employment contract generally complies with international legal standards, and in some cases exceeds them.
2. The legal structure for the annulment of an employment contract provided for in labor legislation (Article 61 of the Labor Code of the Russian Federation) and the non-conclusion of an employment contract due to the actual admission to work by an unauthorized person do not correspond to the nature of labor relations. They have no basis either from a theoretical or from a practical point of view.
3. The legal construction of the annulment of an employment contract is an untenable, improper unilateral legal remedy for solving the problem of “failed” contracts. As for the actual admission to work by an unauthorized person (improper) subject, in this case, the risk of such consequences of concluding an employment contract should be borne by the employer (responsibility for the actions of employees), since the internal labor regulations are within the scope of his powers. For these cases, it is necessary to prescribe special legal consequences of two kinds in the law. If the person who granted admission to work acted without appropriate authority (without instructions, but in the interests of the employer), then upon subsequent approval of this admission by the employer, the contract is considered concluded from the date of actual admission. In the absence of such subsequent approval, the employment relationship must be formalized by a fixed-term employment contract, the term of which expires in connection with the named event (lack of subsequent approval of the actual admission by the employer). With such a solution to the problem, there will be no need for the design of an unconcluded employment contract. There are also possible solutions to the problems posed on the basis of the legal structure of the invalid terms of the employment contract, which will be discussed further.