Is it possible for pensioners to quit without working off. Dismissal of a working pensioner

Voluntary dismissal of a pensioner is discussed in detail in the Labor Code (Article 80, Article 77), as well as in the following regulatory documents:

You need to know that the retirement of an employee is not considered a dismissal. Upon retirement, the worker receives the right to receive pension provision in accordance with the norms of the legislation of the Russian Federation.

The law also says that a citizen has the right to quit if he has made such a decision. He can notify the employer about this at any time by means of a resignation letter. Further, the employer signs the application and issues an order, which must be familiarized with the employee.

The procedure for the dismissal of pensioners at their own request in 2020 has the following features:

• the employee may not inform the employer of his decision to stop working 2 weeks in advance if the reason for leaving is retirement;
• if the reason for leaving the organization is not related to retirement, then the citizen is obliged to notify the employer 2 weeks in advance;
• if a citizen decides to get a job in another company, a change of job will not affect the receipt of a pension in any way.

When making an entry in the work book, you need to take into account his future plans. If a person plans to work in another organization, it should be indicated that he leaves work by his own decision. If the decision is made in connection with retirement, an appropriate entry is made about this.

On the last day of work, the citizen receives a full payment. He also gets his workbook back.

Terms of dismissal of a pensioner at his own request

According to the law, employees of retirement age may not work for two weeks when they retire, so the manager is obliged to formalize the resignation from work in accordance with the deadlines specified in the application.

In special cases, when it is not possible to leave immediately (for example, if the employee is a financially responsible person), he must inform the employer of his decision two weeks in advance.

The nuances of dismissal at will of a working pensioner

We examined how pensioners are fired at their own request. Some nuances should be mentioned:

A previously working citizen after the end of his work activity is obliged to report this to the Pension Fund of the Russian Federation. To do this, you need to provide the PF department with a book and a copy of the order confirming your retirement. There he can write a statement about.

There are cases when the dismissal of a working pensioner of his own free will occurred with violations of the law. According to Art. 3 of the Labor Code of the Russian Federation, the employer does not have the right to force an elderly employee to submit an application for resignation. The rules for the dismissal of a working pensioner at their own request state that a citizen in this case has the right to go to court. If he can prove this fact, the employer will be obliged to return his workplace and pay material compensation. Moreover, from October 14, 2018, the Russian Federation introduced criminal liability for the unjustified dismissal of a person of pre-retirement age (a person who has 5 or less years left before entering a well-deserved rest). Fines under Art. 144.1 of the Criminal Code of the Russian Federation amount to up to 200,000 rubles.

Strict restrictions on the age of the worker are provided only for certain professions (for example, if the work is associated with hazardous production, underground work, radioactive production, etc.). Consequently, the manager does not have the right to ask the employee to leave his position due to the fact that he has reached a certain age.

The dismissal of a pensioner from work at his own request is a moment worthy of increased attention on the part of the employer, since his improper observance of the procedure for this category of citizens implies administrative responsibility.

Many pensioners, going on a well-deserved rest, continue to be active in their work. The mechanism of their employment, the performance of professional functions, is no different from the procedure for carrying out the same procedures for able-bodied people. However, there are procedural features that should be taken into account.

Legal basis for the process of dismissal at the initiative of the beneficiary

This document contains basic information regarding the situation, the reasons for making such a decision.

It is issued in free form, contains the following items:

• in the upper right corner, the name of the institution where the application document will be sent, as well as the personal data of the citizen who draws it up (last name, first name, patronymic, position, place of residence and registration) is indicated;
• in the middle of the line the name is written - the statement;
• the descriptive part contains a request to terminate the contract with an indication of the reason;
• date and signature of the person completing the document.

If the applicant has a question about how to quit a working pensioner, the employee needs to know his rights if he has this intention. After all, the employer does not have the right to refuse to accept an application, assign due payments and benefits, or issue a work book.

Peculiarities of termination of employment at the request of a pensioner

When answering the question of how best to quit, a person who wants to terminate the contract with the organization upon reaching retirement age must understand that the legislator in this situation protects his rights, but the employer cannot (if there are no facts of non-fulfillment of official duties), guided by article 3 of the Labor Code.

The features of the process for terminating labor relations between the head and the citizen leaving for a well-deserved rest include the following provisions:

1. the aspect of the termination of work of a retired citizen applies to all pensioners, even if they have reached the age earlier on duty - the dismissal of a military pensioner of their own free will without working off is also relevant within the framework of the Labor Code of the Russian Federation;
2. the process of terminating the activity of a financially responsible pensioner is carried out a little differently. He retains the right to be dismissed on the day of the application, but warns the employer 2 weeks before filing his request;
3. benefits for pensioners upon dismissal of their own free will are provided in the form of compensation for the number of vacation days not previously used in the current year, severance pay with a reduction within 2-3 months, other payments established by regional regulatory legal acts of the country's constituent entities.

The dismissal rules established by law give an understanding of when it is beneficial for a working pensioner to retire, in what time frame this will be done, given the manager’s obligation to issue a dismissal order and issue funds as a calculation on the day the application is made. In most cases, the remuneration of the pensioner is made at a time with all the rest of the employee on the day of payment of wages.

Termination of the relationship of a financially responsible pensioner

The financially responsible beneficiary is responsible for checking the safety of the property. If no facts of damage are recorded, then an appropriate order is issued against the citizen.

Situations when a person is given full responsibility are described in articles 243, 244 of the Labor Code of the Russian Federation.

Note: in the presence of material damage to property objects, its compensation becomes mandatory.

Thus, this category of people, according to the rules of doing business, implementing the process of termination of legal relations, differs from the dismissal of able-bodied citizens, given their age, valuable work experience, and professionalism.

In the legislative framework, a special article of the Labor Code of the Russian Federation is highlighted - dismissal in connection with retirement (paragraph 3 of article 80 of the Labor Code), which regulates the procedure for terminating the employment of a person in connection with retirement.

Dismissal of pensioners: general provisions

It is carried out in accordance with a number of general rules that apply to other categories of specialists. In the case of pensioners, the same grounds provided for in Articles 83, 77 and 81 of the Labor Code apply. The mechanism by which the employment contract is terminated remains the same.

Note! If an employee achieves and exercises pension rights, the employer will still not be able to dismiss him for his own reasons.

From this we can draw the following conclusion - the employer has no legal right to dismiss his worker when he reaches retirement age. The procedure is determined only by the personal requirements of the specialist himself.

The order and dismissal of a pensioner at will

The procedure by which the Labor Code is drawn up is disclosed in a number of articles. A specialist can come to the personnel department at any time and declare that he wants to vacate the workplace. To do this, you must complete and submit for verification in writing. It is issued two weeks before the scheduled date of dismissal.

The expiration of the period begins from the moment the completed and signed application is received by your employer. Such a requirement is put forward by part 1 of article 80 of the Labor Code.

Consider the following example . The specialist decided to leave the workplace on April 21, 2020. The working period will be calculated from April 22, that is, from the next day. In this case, the last day of stay at the workplace is May 5, 2020. Termination of the employment contract in connection with retirement must be formalized on May 5.

Deadlines for terminating an employment contract with an elderly citizen

It also happens that a specialist can take advantage of a reduced warning period, which, in accordance with the law, is three days.

It can be applied in three cases:

1. the specialist leaves the workplace during the test period, as stated in part 4 of article 71 of the Labor Code;
2. the specialist previously signed no more than two months. Such a right is spelled out in part 1 of article 292 of the Labor Code;
3. The employee was doing seasonal work. The right to a reduced warning period is provided for in Part 1 of Article 296 of the Labor Code.

Note! Sometimes the warning period can be extended up to 1 month. This occurs if the person retiring is in a management position or is a coach or athlete.

Despite the fact that the law on the dismissal of pensioners establishes specific deadlines, enterprises can terminate an employment contract even earlier - up to the end of the warning period. This opportunity appears due to part 2 of article 80 of the Labor Code of the Russian Federation.

The sequence of actions when dismissing a pensioner by law

After an employee who has decided to retire and end his career has submitted an application, the manager needs to issue a special order or order. The last document can be issued in the T-8 form. It is allowed to use your own form if it is developed and approved in advance.

In the section indicating the reasons for leaving the workplace, it is necessary to indicate under which article the organization has to dismiss the employee in connection with retirement. In this case, paragraph 3 of Part 1 of Art. 77 of the Labor Code of the Russian Federation.

The employee must read the issued order and sign the document. As necessary, the specialist is given a copy of the order, certified by the personnel department. If there is no possibility of dismissal through an order, or the employee decided to refuse to familiarize himself with the document, a corresponding entry is made on the document. It can also be made if the specialist is not at the workplace on the day the dismissal is issued.

Important! According to the requirements of the Labor Code of the Russian Federation, when terminating an employment contract, a corresponding entry is made in the labor, as well as personal card, drawn up in accordance with the rules of the T-2 form.

Calculation of a retired pensioner

On the last day, the employer is obliged to make a full settlement - to pay wages for the period worked.

After completing this procedure, the employee must receive in his hands:

• work book;
• a reference document that indicates the total salary for the two years before dismissal;
• information for the Pension Fund.

When dismissal is initiated upon reaching retirement age, Article 140 of the Labor Code obliges the employer to pay compensation for unworked leave.

How can you fire working pensioners without working off

Initiating the dismissal of pensioners under the Labor Code of the Russian Federation, specialists reserve the right to do without working off. This possibility is provided for in Article 80 of the Labor Code.

This can be done if the employee can no longer continue to perform his job duties. For example, he retired. On the other hand, there is no clear definition of the term "retirement" in the legislation. The use of this rule in practice is as follows. You can get it at any time after the employee has received a pension.

You can use the opportunity provided and not work out 14 days only once.

The grounds for awarding a pension are irrelevant. The grounds are such as after reaching old age, and so on.

The periods of working out the beneficiary upon dismissal and the formulation of the reasons for leaving

The profile article of the Labor Code of the Russian Federation on dismissal makes it possible both from the moment when it was appointed, and after working out any period after the moment the specialist received the official status of a pensioner. Employees who got a job after the pension was assigned can also take advantage of this opportunity. But there is one condition - the implementation of this right has not been previously performed.

Initiating in this case dismissal on retirement, the article of the Labor Code does not provide for any distinctive points. True, the situation differs only in the absence of a working off period, as well as the use of a different wording to describe the grounds for dismissal.

Violation of the rights of pensioners during dismissal

Upon retirement, no employer should infringe on the right of an employee to retain his position. Dismissal is carried out only at will, or in the course of professional activities.

Remember! Compulsory dismissal is the basis for applying to state authorities to appeal the decision and collect a fine from the employer.

During this year, several laws were adopted that protect the labor rights of pensioners and citizens of pre-retirement age. In this regard, the requirements for employers have become tougher, up to criminal liability. In particular, the adopted one introduced into the Criminal Code, which provides for strict sanctions against employers for the dismissal of pre-pensioners, as well as an unreasonable refusal to hire a person on the grounds that he has reached the pre-retirement age. Violation may result in a fine of up to 200,000 rubles. or in the amount of wages or other income of the convicted person for a period of up to 18 months or compulsory work for a period of up to 360 hours.

In addition, bill No. 269898-7 is currently being considered, which amends . Officials want to expand the powers of the labor inspectorate in the field of protecting the labor rights of workers, that is, to give this body the right to go to court on behalf of the employee and represent his interests in court. Accordingly, if the law is adopted, then retired workers can also take advantage of new opportunities to protect their rights.

Another innovation: Rostrud connected labor inspectorates to the organization of quarterly monitoring of information about employers and the number of pre-retiree employees (). The form must be submitted starting from October 1, 2018, by the 15th day of the month following the reporting one. We wrote earlier about legislative innovations and initiatives in more detail.

It is obvious that the state is making attempts to legally protect older employees. Realizing this, the business that works with this category of employees, in response to the new laws, put forward demands on its part: it asked for preferences - reduced contributions, the introduction of tax benefits in the case when the employer invests money in retraining and advanced training of pre-retirees, etc. .d. However, their appeal was not granted.

Therefore, taking into account the new requirements starting from 2019, employers should be especially careful with respect to retired and pre-retiree workers and try not to violate labor laws.

What can be the dismissal of a pensioner

First of all, it should be noted that reaching retirement age is not grounds for dismissal. An employee who has issued a pension can either continue to work further and quit when he wants to, or want to quit immediately, in connection with retirement. Depending on the circumstances, different dismissal scenarios apply.

• The employee has already retired, continues to work in the company, but at some point decides to quit

In this case, the basis for dismissal is the employee's own desire. This is a general basis, indicated in, therefore, the employee must notify the employer in writing of his intention to leave the company two weeks in advance (). And these two weeks the employee must work in the company.

In this case, an entry is made in the work book: “Dismissed of his own free will, paragraph 3 of the first part of Article 77 of the Labor Code of the Russian Federation.”

• Employee leaving due to retirement

Termination of labor relations between an employer and an employee in connection with the latter's retirement has a feature that is reflected in. It implies the termination of the employment contract within the period specified in the employee's application. That is, the employer does not have the right to require the employee to work for two weeks.

In this case, the entry in the work book will be as follows: “Dismissed of his own free will in connection with retirement, paragraph 3 of the first part of Article 77 of the Labor Code of the Russian Federation.”

The procedure for dismissal of an employee in connection with retirement

If an employee who is about to retire decides to quit, then the algorithm of his actions will be as follows.

1. The employee writes a letter of resignation of his own free will in any form.

It is important to include the following information in this application:

• position;
• the grounds for dismissal (“of one's own free will”);
• reason for dismissal (“due to retirement”);
• date of dismissal.

How many times can an employee quit due to retirement?

On the official website, Rostrud expresses a clear position on this issue. If an employee once used the wording “in connection with retirement”, then he does not have the right to quit for the same reason a second time. It does not matter whether he worked before his dismissal “in connection with retirement” for the same employer or for another.

Thus, if a retired employee already has a record of dismissal in connection with retirement in his work book, then later he can only quit with the wording “of his own free will”. At the same time, he must notify the employer about his plans two weeks in advance (unless he has another good reason not related to retirement) and, accordingly, work out this period.

2. The employer prepares the following package of documents:

• publishes

There are a few things to keep in mind when placing an order. In the line “reason for termination (termination) of the employment contract (dismissal)”, you must indicate the reason for dismissal in accordance with and the reason for dismissal (“in connection with retirement”).

The line "document number" and "date of compilation" indicate the details of the employee's application. Next, the employee gets acquainted with the order against signature.

If the employee asks for a copy of the order, then the employer is obliged to do this by duly certifying the document (). If the dismissal order cannot be brought to the attention of the employee or the employee refuses to put a signature under it, then a corresponding entry is made on the document.

• makes an entry in the work book

The work book indicates the basis and reason for dismissal - they must correspond to the text of the order.

3. The employer makes the necessary payments to the employee.

Dismissal of a pensioner during staff reduction

The dismissal of a pensioner due to staff reduction occurs on a general basis. At the same time, specialists with higher productivity and qualifications have the preferential right to remain at work.

The employer is obliged to notify the employee about the upcoming reduction in two months -. It should indicate that the employee is leaving due to staff reduction after the specified period, from the date of receipt of the notification, as well as information about the absence of vacancies, in connection with which he cannot be transferred to another job. The employee gets acquainted with this document against signature.

The employer can offer the employee to terminate the employment contract before the expiration of the notice period if it is ready to pay him additional compensation. The amount of compensation is the average earnings, which is calculated in proportion to the time remaining until the expiration of the notice of dismissal.

When reducing the staff, the employer is obliged to offer the employee another job available to him in the given locality - a vacant position or a job corresponding to his qualifications, as well as a vacant lower position or job. The employee gets acquainted with these proposals against signature. He can take time to think about the offer of the employer - before the expiration of the termination notice.

On the part of the employer is also published in any form. The document must include the following information:

• grounds for reduction (decision of the owner, reorganization or other);
• positions, how many staff units are subject to reduction;
• date of introduction of changes (taking into account the term for warning employees about dismissal).

If a retired employee was dismissed ahead of schedule, having given consent to this, then the details of the written consent are reflected in the order (it can be recorded directly on the order). Rostrud advises attaching the original written consent of the employee to early dismissal, and attaching a certified copy to the personal file. The employee must be familiarized with the order against signature.

An entry is made in the work book about the termination of the employment contract due to a reduction in staff (grounds), the signature and seal of the employer and the signature of the dismissed employee are affixed.

On the day of dismissal, the employee receives from the employer:

• work book;
• all payments. If the employee did not work on that day, then the amounts are paid no later than the day following the presentation of the demand for settlement by the dismissed employee;
• a certificate of the amount of earnings for two calendar years preceding the year of termination of work;
• certified copies of documents related to work (if the employee requested them in writing).

How much severance pay must an employer pay when a retired worker is made redundant?

The employer is obliged to pay one severance pay and keep the employee's average earnings for the period of looking for a new job ().

Severance pay in case of staff reduction is paid in the amount of the average monthly earnings. If within two months after the dismissal a person does not get another job, he is paid another average monthly salary. To get it, a person writes a statement and applies to the employer with it, and also provides him with his work book.

In some cases, the average monthly salary is maintained for the third month from the date of dismissal. But it depends on the decision of the employment service - provided that a person applied to this organization within two weeks after his dismissal and they could not help him with employment.

The dismissal of a pensioner is the final termination of the labor activity of a person who receives pension payments. Currently, most of those who have reached retirement age continue to work. And in this regard, very often employers have a question: how, according to the law, to dismiss a pensioner in connection with the necessary rotation of personnel? In turn, workers approaching retirement age are worried about whether a pensioner can be fired due to age. We will answer these and other questions in the article.

Age is not a reason to quit

A person who has reached a certain age has the right to stop his labor activity and go on a well-deserved rest. But also the legislation of the Russian Federation does not prohibit such elderly people from working. Especially if they are full of energy and can fully cope with their labor duties.

Despite the fact that in connection with the pension reform of 2020, the retirement age has been increased (for men - 65 years, for women - 60), he did not become a reason for dismissal. And if the manager nevertheless forced the elderly employee to break off the employment relationship without justified reasons, this will be regarded as age discrimination. In such cases, employers are in big trouble. How to dismiss a pensioner without violating his rights and legislation?

The legislative framework

All situations related to employment and termination of an employment contract are regulated by the Labor Code and adopted regulatory legal acts:

• Federal Law of December 28, 2013 No. 400 “On insurance pensions”;
• Federal Law of December 17, 2001 No. 173 “On labor pensions in the Russian Federation”;
• Art. 77, 78, 80, 81 of the Labor Code of the Russian Federation.

Standing apart are fixed-term contracts, which are regulated by Art. 59 of the Labor Code of the Russian Federation. According to the law, the term for concluding such an agreement is limited to 5 years. It is convenient for the employer, as it allows you to end the working relationship on time and does not require the payment of severance pay. But a fixed-term contract can only be concluded with the consent of the candidate.

Rights of a working pensioner

According to the Labor Code, working pensioners have the same rights as other employees. And in some cases, they even have advantages:

• a veteran of the Second World War, if he works, can choose a convenient time for vacation;
• an elderly worker may take additional unpaid leave of up to 14 days;
• exempt from paying property tax;
• have preferences when issuing vouchers to rest houses or sanatoriums;
• upon dismissal in connection with leaving for a well-deserved rest, they have the right not to work out the prescribed two weeks.

When processing is required

Despite the fact that Article 80 of the Labor Code does not provide for a two-week notice period for dismissal for pensioners who go on a well-deserved rest, there are exceptions. These include:

• termination of the contract by agreement of the parties, when a new employee needs to be found for the vacant place;
• when the employee has already exercised the right to quit due to retirement without working off the prescribed two weeks.

Dismissal of a pensioner in 2020

The Labor Code prohibits any discrimination, including age discrimination. Reaching retirement age in itself is not a reason for parting with an employee, and termination of an employment contract in this case should be carried out on general grounds:

• by agreement of the parties;
• at the initiative of the employer;
• at the discretion of the employee.

Let's take a closer look at each of the methods.

Dismissal of a pensioner at his own request

The easiest way to dismiss a pensioner is if he writes a statement of his own free will.

The legislation does not establish a time period between obtaining the right to receive a pension and dismissal of a working pensioner at his own request. An employee can apply immediately after becoming eligible for pension payments or stay in work for as long as he considers possible.

The dismissal process in this case is no different from other employees, with one exception. We already wrote about it above: if an employee receiving an old-age pension quits for this reason for the first time, he may not work for the prescribed two weeks.

First of all, an application must be drawn up, which indicates:

• FULL NAME. employer;
• personal data and position of the resigning person;
• the text of the statement itself;
• date and signature.

Sample letter of resignation

After the head has received the application, he can proceed to issue the order. It is issued in the T-8 form, approved by the State Statistics Committee.

The order specifies:

• name of the organization, OKPO code, order number, date of issue;
• the date of termination of the employment contract and the number under which it is listed in the internal archives of the organization;
• FULL NAME. the retired pensioner and his position, personnel number;
• grounds for terminating the employment contract. To avoid an offense, this line indicates that the basis was the employee's own desire to quit due to retirement;
• the position of the employer, his signature with a transcript and the signature with a transcript of the employee, confirming that he is familiar with the document.

After the issuance of the order, the manager must issue a full settlement to the resigning person, including mandatory payments and additional ones.

At the same time, a work book is drawn up, in which the date, reasons for dismissal, the number of the order and the date of its publication are entered.

After completing all the necessary papers, they are handed over to the former employee. Which, in turn, must sign in the register of the movement of internal documents, confirming their receipt.

For financially responsible persons, everything is a little more complicated. The letter of resignation must be submitted two weeks before the expected date of termination of employment. An inventory and transfer of accountable property to a successor or employer must also be carried out.

Upon termination of the employment contract at his own request, the employer must pay:

• wages for actual hours worked;
• compensation for unused vacation this year;
• additional payments at the discretion of the employer.

Dismissal of a pensioner by agreement of the parties

In this case, the termination of the employment contract occurs at the initiative of both parties. The procedure is drawn up in the same way as with care of one's own free will. But with one exception. Withdrawal of the application in this case is practically impossible. Withdrawal of the application and return to work must also occur by mutual agreement.

Sometimes the manager offers a working pensioner to switch to an easier job that corresponds to the health condition of the subordinate. The transfer should be made only with the consent of the employee himself.

Sample letter of resignation by agreement of the parties

Dismissal at the initiative of the employer

What should an employer do if it is necessary to replace a working pensioner with a younger specialist, but this cannot be achieved by agreement of the parties? How to fire a pensioner?

Passing medical examinations in the direction of the employer is the responsibility of the employee ( Art. 214 of the Labor Code of the Russian Federation). If there are health problems, which is often at retirement age, the medical commission can issue the following types of conclusions:

• establish the complete disability of a pensioner;
• recognize an employee as in need of easier work for a period of less than 4 months;
• recognize an employee as in need of lighter work for more than 4 months.

If the medical commission recognizes the employee as completely disabled, then the reason for parting with the employee will be the grounds specified in clause 5 of part 1 article 83 of the Labor Code of the Russian Federation.

A how to fire a pensioner if the medical board finds him in need of an easier job? In this case, if the employee needs a permanent transfer or transfer to another job for a period of more than 4 months (if the pensioner himself refuses such a transfer), then the dismissal will be made in accordance with clause 8 of part 1 article 77 of the Labor Code of the Russian Federation. This can be done only if there are no suitable vacancies or, as already mentioned, if the transfer is refused. Before issuing a dismissal order, a notice of termination of the contract should be drawn up due to the lack of vacancies corresponding to the state of health, and the employee’s signature should be obtained. In this case, the pensioner receives a compensation payment in the amount of two weeks of average earnings (see).

How to write a letter of resignation to a pensioner

Although pensioners belong to a socially protected category of the population, from the point of view of the Labor Code, this is not the case. The only advantage of people who have reached retirement age is the opportunity to quit without two weeks of work.

As already mentioned, the process of dismissing a pensioner is no different from the procedure for terminating an employment contract with another employee. First of all, a statement must be received from the pensioner, in which a desire is expressed to end his labor activity.

The application form is considered free, but you need to adhere to the general form of such documents. In the upper right corner there should be information about the addressee (the head in whose name the petition is written) and the data of the retired pensioner (position, last name, first name, patronymic).

After that, “Statement” is written in the center. And then, on a new line, the text itself.

Retirement Application must contain the mandatory wording: “I ask you to dismiss” or “I notify of my intention to terminate the employment contract in connection with retirement.” The text should contain the date when the pensioner wants to stop his labor activity.

This right can be exercised once, so the reason for dismissal must be indicated in the work book. If in the future the pensioner returns to work, then he will quit on a general basis: having warned the employer 2 weeks in advance.

After the text of the letter of resignation, the date of its writing and the signature of the resigning person are put. We have given several examples of statements in the article.