The nuances of dismissing a military pensioner at his own request: with and without service. Dismissal of a pensioner - procedure for dismissing a pensioner

12.09.2019

Issues related, in particular, to the dismissal of employees are spelled out in labor legislation (the Labor Code of the Russian Federation) and in the collective labor agreement in force in the organization (enterprise). The Labor Code is mandatory for any organization, including individual entrepreneurs. A collective agreement is a bilateral legal document that regulates labor, social, legal and professional relations in the workforce, and which establishes special conditions, operating at a specific enterprise (institution). On the one hand, the collective agreement is signed by the employer, and on the other hand, by the employee. Employees can give their representative (several representatives) the right to represent their interests.

Dismissal of pensioners without service

According to the rules labor legislation, if a working man has reached the appropriate age of 60 years, while a woman is 55 years old (civil professions), then they have the right to quit, as they say, according to at will because of this important event like retirement without two weeks of work.

In this case, the employer is obliged to terminate the relevant employment contract within the period that the employee indicated in his resignation letter. The employee, in turn, must correctly draw up the application. It must clearly indicate the reason for dismissal - retirement.

At the same time, in the Labor Code there are no provisions regarding what the person who has achieved retirement age the employee would be subject, as they say, to dismissal caused by the initiative of the employer; in other words, he cannot be automatically dismissed. “Retirement” is essentially the employee’s right to receive pension provision(accrual of pension), while a person can continue to work and has the right to resign at any, as they say, acceptable moment for him, which he indicates in his application.

Dismissal without service takes place according to general rules, the employer must pay the employee wages for time worked, as well as compensation for unused vacation days. If the leave was received in advance, then appropriate deductions will be made from the resigning employee’s salary.

At many enterprises collective work The agreement provides for financial payments to those employees who retire.

Dismissal of pensioners at their own request

Some employers believe that a working employee should be fired upon reaching retirement age. However, reaching retirement age is not a reason for dismissal! Initiative to terminate labor activity must come from the employee (written statement).
A common practice has become the transfer of a permanently working employee who has reached retirement age from an open-ended to a fixed-term employment contract. This practice is illegal. The transition to a fixed-term employment contract allows the employer to painlessly dismiss a pensioner upon expiration of the employment contract. A fixed-term contract can be concluded with a pensioner if he is initially hired at a new place of work.

Transfer of a pensioner to another job or position is possible only if he has his written consent.
At the initiative of the employer, a working pensioner can be dismissed on the same grounds as any other employee. These grounds, in particular, are:

agreement of the parties;
liquidation of an enterprise (institution);
reduction in the number and staff of employees;
absenteeism;
appearing at the workplace, as they say, in a state of intoxication.

No one, however, can be limited or, on the contrary, receive advantages in labor rights(at the enterprise) due to his age.

If a pensioner resigns “of his own free will,” that is, without specifying “due to (or in connection with) retirement,” he is obliged to notify his employer, accordingly, a little or two weeks in advance, and the employer has the right to demand a two-week notice from the pensioner. working off. The benefit for a pensioner (without service) does not apply in this case.

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The two-week working period is established, first of all, so that the company has the opportunity to find a replacement for the resigning employee; therefore, it is always possible to come to a compromise in the direction of reducing the working period. By agreement of both parties, however, the employment contract can be terminated before the full two-week period has expired.

Dismissal of a pensioner at his own request without service is carried out in accordance with current legislation RF. But to take advantage of this opportunity, it is important to know all the nuances. By law, men have the right to retire at the age of 60, and women at 55. But, despite this fact, many citizens, upon reaching retirement age, continue to work officially at their previous job. And if they have worked for some more time, they have the right to quit without working off. How does this happen? Let's figure it out.

What is important to know?

Pensioners are a special category of citizens for whom certain conditions have been developed, prescribed in the articles of the Labor Code of the Russian Federation. Knowing this information, the employer will be able to avoid misunderstandings when dismissing a pensioner at his own request.

Personnel services are required to know Articles 77, 80, 127, 140, 178 of the Labor Code of the Russian Federation, which reflect the grounds for dismissal of citizens of retirement age, data on various benefits and payments, possibilities of compensation for those dismissed, information about annual leave, the mechanism for dismissing pensioners and calculation periods.

Features of dismissal of a pensioner on his own initiative

The process of dismissing a pensioner at his own request is spelled out in detail in the Labor Code of the Russian Federation. When calculating these citizens, it is important to know the features that do not apply to other officially employed workers, namely:

Upon dismissal, the pensioner must provide a statement indicating the reason.
According to the law, a pensioner has the right to resign without working if he or she indicated retirement as the reason for leaving work.
To be dismissed without 2 weeks of service, a citizen of retirement age must provide proof of his status. This document is a pension certificate.
A citizen's non-retirement cannot become grounds for his dismissal.
Officially employed citizens of retirement age have the right to legally continue their activities even after receiving a pension benefit.
When creating a resignation letter due to an employee retiring, the employer is obliged to indicate in it the period of termination of the employment relationship.
The dismissal of a pensioner can be initiated by him at his own request, regardless of his retirement.

The laws of the Russian Federation protect pensioners from misconduct on the part of employers. And if management decides to dismiss a person of retirement age without his consent, this will be considered a direct violation of the Labor Code of the Russian Federation. IN similar situation a pensioner can file a complaint against the employer with the labor inspectorate or a lawsuit in court in order to restore his rights.

According to current legislation, citizens of retirement age can quit their jobs without working off. Moreover, they have the right to send such a statement to the management of their organization even if they are on vacation or sick leave at that time.

How is it possible to dismiss pensioners at will without working out?

The process of dismissal of a citizen at retirement age occurs as follows:

Pensioner in mandatory fills out an application indicating the reason for dismissal addressed to general director enterprises.
The application is signed by the immediate supervisor indicating the date of dismissal, and then transferred to the personnel department.
The personnel department issues a dismissal order and provides it to the resigning employee for review.
Then the personnel officer makes all the necessary entries in the work book and the personal file of the dismissed person.
After the dismissal, the organization’s accounting department makes former employee all calculations.
The pensioner receives his documents, namely a work book, salary certificate, etc.

How should a pensioner fill out a resignation letter?

If a working citizen is a pensioner and wants to resign from his position, then he is obliged to inform his boss about this. In this case, a statement serves as a notification. It must be filled out by hand on a regular sheet of paper or by ready-made template provided by the organization. In its header it is written who the document is being sent to and from whom, indicating the position and department. In the text of the application, the pensioner must indicate on what date he wishes to leave workplace, not forgetting to fill in the reason for dismissal, in in this case it will be retirement. Below he must put the current date and signature.

Is it possible for a pensioner to resign without working?

Dismissal of a pensioner from work at his own request without working out is carried out by the personnel department according to the standard scheme, according to Art. 80 TKRF. The management of the enterprise is obliged to release the pensioner to a well-deserved rest on the day indicated by him in the application.

If an employee had previously been dismissed at his own request due to retirement, but then returned to his duties, but in the status of a pensioner, then upon re-dismissal he will be required to work for 2 weeks, according to the Labor Code of the Russian Federation. However, by personal agreement with management, these rules can be changed.

How does military retirees retire at their own request without working out?

Citizen military personnel have the right to retire early due date, that is, for length of service. And since the pension in this case is the usual security, the rules for dismissal in relation to these persons are the same. Military retirees can resign from service at any time without prior service if they indicate retirement as the reason for dismissal.

What to do if your bosses won’t let you retire without working?

If the management of a company in which a citizen of retirement age works violates the legislation of the Russian Federation, namely, forces an employee to work for 2 weeks before going on a well-deserved rest, then the pensioner will have the right to write a complaint. He can complain to the labor inspectorate, which will subsequently inspect the organization and, if an obvious violation of the Labor Code of the Russian Federation is identified, will fine the management. If a pensioner worked for an individual entrepreneur, then the entrepreneur will receive penalties in the amount of 1 to 5 thousand rubles, in an LLC or JSC, then the organization will be fined 30-50 thousand rubles. If a guilty official is found, he will receive a fine of 1-5 thousand rubles.

What payments are due to a pensioner after dismissal on his own initiative?

On the day of official dismissal, the company’s accounting department is obliged to make a full settlement with the pensioner. Upon termination of the employment agreement, the company must pay him all compensation due under the law.

If an employee officially retires for the first time, then all last payments from the employer will not be taxed. However, their size cannot exceed three salaries or wages.

What is filled out in a pensioner’s work book?

When registering the dismissal of a pensioner, like any other employee, an employee of the HR department is required to fill out a work book in accordance with the Labor Code of the Russian Federation. It should contain the following information:

date of dismissal;
order number and date of issue;
reason for dismissal indicating the article number from the Labor Code of the Russian Federation;
signature of the responsible person;
seal of the organization.

Why do employers transfer people of pre-retirement age to a fixed-term employment contract?

Most dishonest employers are constantly looking for loopholes in the law in order to deceive pensioners, but at the same time get away with it themselves. Some organizations re-contract with individuals pre-retirement age labor agreements, formalizing them for work according to fixed-term contract. If the employee does not suspect a trick and signs the similar document, then at the end of his term, the employer will have the right to dismiss him without further extension. This is why it is very important to pay attention to what you sign to avoid running into serious problems. After all, this agreement will give the employer a head start, and you will not be able to continue working in the organization after its expiration.

Most heads of organizations are often interested in the possibility of dismissing people of retirement age without their consent for reasons such as health problems, difficulties in performing direct work responsibilities, and difficulties with retraining. However, according to the law, employers cannot do this just like that, despite the status of a retired employee. Employees of organizations can be dismissed, regardless of their status, only on the basis of the reasons set out in the Labor Code of the Russian Federation. And in case of dismissal due to liquidation of the company or downsizing, the employer is obliged to notify the employee 2 months before the termination of the employment relationship.

What to do in controversial situations?

Labor disputes often arise between organizations and pensioners. This often happens because the parties are unable to resolve the conflict peacefully and come to a compromise. In this case, the only solution is to file an application with the court for further proceedings.

Whenever serious problems with the employer, the pensioner has the right to file a claim in court, the content of which must clearly state the essence. He must attach to the application a list of documents that prove his case. As a rule, in 99% of cases, the court takes the side of retired workers, especially if they were able to substantiate the claims and prove the employer’s guilt.

In law general scheme dismissal of a pensioner at his own request is identical to the usual procedure. The exception is that there is no obligation to notify the organization about leaving fourteen days in advance if in the application the person indicates the reason - leaving for a well-deserved rest.

Proper dismissal

Pensioners are people who are assigned special support on certain grounds, including:

age fifty-five and sixty years for the fair and stronger sex, respectively;
preferential and early pension.

Article No. 80 of the Labor Code regulates the obligation of citizens to warn the organization about their dismissal, and also determines preferential categories citizens exempt from it.

When the application for resignation of a working pensioner at his own request indicates the reason - retirement for a well-deserved rest, it is calculated on any day convenient for him. The accounting department pays the employee on the day determined by the application. You can't do it with another number. The phrase “retirement” gives a person the priority right to receive a full payment on the day he needs.

Important! A pension is not a reason for automatic dismissal of an employee. This procedure is carried out exclusively on an application basis.

Even if an employee took a well-deserved rest and continued to work, and then wrote a letter of resignation from the enterprise, he must be fired without work. For example, an employed pensioner writes a statement with a request to fire him on March 1, due to retirement, the personnel department should fire him on this date. Otherwise, he may be held accountable.

When an employee is required to “work” two weeks

First you need to understand the concept of “working out”. IN Labor Code there is no such word. The law establishes the obligation of citizens to notify the employer about this two weeks before leaving the enterprise. Accordingly, until the moment he leaves, he works as usual, unless, of course, he gets sick or goes on vacation. The company is given two weeks to find a new employee.

If the employee does not indicate in the application the reason for leaving the company - retirement, he has the same obligations as ordinary employees. Sometimes workers reach an amicable agreement with management and leave without working for two weeks.

When an employee has already retired and left the organization due to retirement, and then is employed again, voluntary dismissal is carried out in the usual manner.

That is, the pensioner is obliged to notify the employer two weeks in advance of his desire to leave.

There is a shortened notice period for the employer to leave the enterprise, three days:

the employee leaves during the probationary period;
the employment contract was concluded for a period of less than two months;
a person works seasonally.

This period will be increased to one month for persons holding leadership positions or belonging to the category of athletes, as well as coaches.

Dismissal of a pensioner without service is carried out in the following circumstances:

inability to perform work duties due to age-related changes;

when staffing is reduced;
with the consent of management;
The employee indicated in the application the reason “retirement”, while after the pension was assigned he had not yet resigned.

Layoff scheme

When entering a well-deserved retirement, a person has the right to resign at his own request. Such actions are not contrary to the law. Therefore, management has no right to prevent this. All employers should know how to properly fire a pensioner.

The procedure for dismissing pensioners at their own request due to retirement is as follows:

The employee writes a statement indicating the reason “retirement”. Then you can avoid working off.
The accountant makes a full payment on the day specified in the application. The employee is charged the following amounts: actual salary and bonus for the period worked, compensation for unused vacation days, some employers pay additionally severance pay by agreement
Also on the day of full settlement: a corresponding order is issued, which the employee must familiarize himself with; an entry is made in the work book about leaving the enterprise due to retirement.
On the day of dismissal, the employee takes the paycheck and work book.

The procedure for dismissal of pensioners due to reduction:

All employers have an obligation to notify employees of impending dismissal two months in advance. The notice is drawn up in in writing, the employee signs for receipt.
The organization issues an order; all laid-off employees must familiarize themselves with it in writing.
If there is a position that is not subject to redundancy, it must be offered to the person being laid off.
When an employee refuses it, this serves as the basis for the end of the employment relationship. Offers of positions and refusals must be in writing.
The accountant calculates: salaries and bonuses, vacation compensation, severance pay for layoffs for two, sometimes three months.
The HR department makes an entry in the work book about dismissal due to staff reduction.
The employee takes the documents and payment.

Letter of resignation

A sample resignation letter cannot be found in legislative acts. Its shape is developed individually. Mandatory items that must be present in the application:

On the left edge of the sheet is indicated: name of the organization, full name. and director's position, employee details.
The title of the document is indicated in the center.
Below is a text asking for dismissal from such and such a date. The reason for the person leaving the enterprise must be indicated.
Date.
Applicant's signature.

Application example:

Employer's liability

Working out upon dismissal of a pensioner is a rather dangerous circumstance for the employer. If a person writes a complaint about the employer’s illegal actions to the labor inspectorate, he will be given a fine:

30 thousand - 50 thousand rubles - for an enterprise;
1 thousand – 5 thousand rubles – for officials or IP.

Therefore, when dismissing a pensioner, you need to be extremely careful so as not to be held liable.

Features of dismissal

All business managers must know how to fire a pensioner correctly. There are features of dismissal of pensioners:

Art. No. 3 of the Labor Code states that there is no legal basis at the initiative of management, dismiss an employee who has reached retirement age. If personal rights are violated, a person has the right to appeal to the court with a request to restore his position. The judge will grant the plaintiff's claim on the grounds of discrimination against the person. Additionally, the initiator of the application has the right to demand compensation for moral damage.
The employer has the right to pay the pensioner if he does not comply. Suppose the employee does not have the necessary skills and abilities. Then the employer must conduct certification of the employee.
When an enterprise is liquidated, pensioners are laid off on an equal basis with other employees.
If a person of retirement age does not want to pay and has the necessary skills and abilities, the employer may offer him part-time work. working week. This will help reduce salary costs.
The deadline for dismissal of a pensioner at his own request is identical to the usual time frame. The exception is calculations due to retirement. This entry in the work book can only appear once; repetition is not allowed.

Some employers think that a person of retirement age has the right to leave the enterprise without working, only on the day the pension is directly assigned. And when a person wishes to exercise his right later, he can be forced to work for fourteen days. This opinion is erroneous and unlawful. An employee has the right to resign due to retirement at any time convenient for him. But he can only do this once.

Deserved rest or work? For the majority of Russian citizens of pre-retirement age, the answer is obvious - continue to earn money a dignified old age. Nevertheless, sooner or later the pensioner will still have to leave his usual workplace. But how to do this without unnecessary hassle? Today we will try to answer the question: .

During times Soviet Union There was a norm in force from the Labor Code (LLC) of the RSFSR, which provided for the mandatory dismissal of an employee upon reaching . But corresponding amendments were made to the legislation in 1992. Nowadays, working pensioners are leaving their jobs. By common grounds . But sometimes - with some exceptions.

It should be noted that the employer has no right to force an employee to resign. A worker of retirement age takes this question for himself independently. He has the right to resign at his own request. If such a decision is made, he must submit a corresponding application. Moreover, he can do this at any time suitable for him.

The pensioner has legal right refuse to work an additional 2-week period provided in such a situation, subject to the following conditions:

Retirement age occurred during the period of employment at this enterprise (organizations). Find out what the retirement age is for Russian citizens in 2018.
Mandatory indication of the basis (reasons) for dismissal – “retirement”.

The date that the pensioner indicates in the application will be considered the day of dismissal. In this case, it does not matter when he reached retirement age - during the period of dismissal or slightly earlier.

An important point: if a retired pensioner decides to get a job again, then (or – subsequent ones) upon dismissal, he loses the right to refuse the mandatory 2 weeks of work upon dismissal. It doesn’t matter whether it’s the same organization or another.

So, a working pensioner has the right to resign at any time of his own free will. After submitting the appropriate application and completing all documents, an order to terminate is signed. employment contract the boss and the resigning employee.

Next - it is drawn up work book and the final settlement is made with him. The employer is obliged to make all payments that are due in this organization to the resigning employee upon completion of his work. These are: salary, bonuses (if they were provided for in the contract), and in case of unused vacation - compensation.

If there was paid leave, then the organization has the right to deduct from the salary those funds that were not worked out in connection with his dismissal. However - no more than 20% of the payment amount.

Except correct design all documents, the employer is responsible for providing the Pension Fund with information about the dismissal of a working pensioner. The employer must do this within 10 (calendar) days from the date of dismissal. This measure is provided to ensure that the retiree’s pension is indexed (recalculated) in accordance with the law.

If an enterprise or organization plans to reduce staff, the manager is obliged to personally notify employees about this 2 months before and confirm this step with a receipt. In this case, the pensioner should be offered the option of filling a vacant position, if there are any at the given enterprise. As for the mandatory 2-week work, then:

conditions in this situation are equal for everyone, regardless of age;
it is not mandatory.

Additionally:

However, the head of an organization has the opportunity to terminate an employment contract with an employee on a basis other than that related to retirement. Article 77 of the Labor Code of the Russian Federation provides that such an initiative on the part of the employer can only occur in the following cases:

Settlement with the employee mutual consent sides
When the contract expires.
When staffing is reduced.
Upon liquidation of an enterprise.

With this form of calculation, the employer must present options for transferring the employee to another position.

The terms of dismissal can be discussed and changed in the case of the dismissal option “by agreement of the parties.” Article 78 of the Labor Code of the Russian Federation makes it possible to terminate an agreement on labor relations at any time with the full consent of the parties. When an agreement is reached between the participants in the discussion, it is necessary to draw up a statement on termination of the work contract.

The statement indicates all the main points on which agreement was reached. Once signed by the participants in the discussion, this statement can be a guarantee against problems associated with the dismissal of an employee.

So: With this form of calculation, the condition for working out additional time upon dismissal of a pensioner can be discussed by him with his superiors. As a rule, employers accommodate older people halfway.

An exception may be situations related to the departure of particularly valuable employees or the need to find a specialist to fill a vacant position. Therefore, it is still better for employees, including pensioners, to notify about their departure in advance.