Pensioner and work upon dismissal under labor law

Termination of the contract on a day convenient for the employee

As a general rule, a subordinate warns the manager that he is going to leave the company at least 2 weeks in advance.
But there are exceptions: when a person is unable to continue working, the employer is obliged to terminate the contract on a day convenient for the subordinate. Such situations include, among other things, termination of the contract in connection with retirement - Part 3 of Art. 80 Labor Code of the Russian Federation. Taking into account this rule, dismissal of a pensioner at his own request without working off work is completely legal. When contacting his superiors, the person writes: “I ask you to fire me due to my retirement on January 24, 2020” (the date, of course, may be different). Based on such a statement, an order is issued, and then an entry is made in the work book. Something like this:

Please note that the arrival of retirement age or the emergence of grounds for leaving a position early does not allow the employer to terminate cooperation with the employee. The subordinate must voluntarily indicate that he has decided to leave the company, and this does not have to be at the same time as the right to a pension arises.

Another important point: if the application does not specify that the termination of the employment relationship is due to the desire to retire, the employee is not given the opportunity to leave the company at any time. In this case, to the question of whether pensioners need work upon dismissal, the answer will be positive. Because now an employee, even if he is a pensioner, is equal to his colleagues and must notify of his intention to leave his position at least 14 days in advance.

How to properly quit your job as a pensioner

The law defines that pensioners are those citizens who are assigned an old-age pension on any basis, including preferential and early pensions.

If the reason given for dismissal was retirement, then the employee is provided with a legal benefit and the pensioner’s voluntary dismissal occurs without working off. And the employer must dismiss the pensioner exactly within the period specified in the application. He cannot do this later than the date specified in the application (Determination of the Moscow City Court dated May 30.

Labor legislation allows a pensioner to resign without mandatory service, but only for the first time, about which a corresponding entry will be made in the work book. The application for voluntary resignation must indicate the reason “in connection with retirement.”

The pensioner will be hired if he wishes to resume work and dismissed on a general basis. It follows from this that the dismissal of a pensioner at his own request upon his subsequent employment will take place taking into account the norms of Part 1 of Art. 80 of the Labor Code with mandatory work within two weeks. In this case, the employer can release without work only by agreement of the parties (Article 78 of the Labor Code of the Russian Federation).

Retirement - only 1 time

What about employees who have already retired once, but continued to work after a break? Is the employer obliged to let the employee go in this situation on a day convenient for him, and how can a working pensioner quit without working off?

Since the legislation does not contain clear instructions on how to act in such cases for the parties to labor relations, two points of view have emerged in law enforcement practice. Some people believe that a person can only retire once. Therefore, if he has already resigned on this basis once, and the corresponding entry is made in his work book, then for subsequent dismissals the benefit is no longer valid. This conclusion is indicated, for example, in the Decision of the Petrogradsky District Court of St. Petersburg dated June 18, 2012 No. 2-2974/2012.

At the same time, there are court verdicts (for example, Decision of the Moskovsky District Court of Tver dated August 31, 2012 No. 2-2024/2012), in which the court sided with the workers. The rationale is simple: the “retired” status, although acquired once, remains with the person for the rest of his life. Therefore, if an employee writes in the application that he plans to leave his position due to retirement, the employer will have to comply with Part 3 of Art. 80 of the Labor Code of the Russian Federation and release him without detention. Otherwise, the conflict will be resolved in the State Tax Inspectorate and in court.

Transfer to a fixed-term contract for subsequent dismissal

Many employers are looking for loopholes in the law in order to terminate employment relationships with older people.
Some managers offer retirees to renew regular employment contracts for fixed-term ones. If the employee agrees and signs the new document, then at the end of its validity period the organization may refuse to continue cooperation with him. But, if the pensioner refuses to transfer to a fixed-term contract, management will not be able to carry out this procedure independently.

This is due to the fact that, according to the regulations of Federal legislation, before concluding a new agreement, the old one must be terminated. And if the pensioner refuses to terminate the previous contract, then it will continue to have legal force.

How to dismiss a pensioner in 2020 at your own request: general procedure

Upon reaching retirement age, an employee has the right not only to continue working by applying for an old-age insurance pension. An employee can also resign of his own free will in connection with retirement (clause 3, part 1, article 77, part 3, article 80 of the Labor Code of the Russian Federation). Or terminate the employment relationship with the employer at your own request, without specifying a specific reason.

Having reached a certain age, an employee has the right to resign on his own initiative. In general, TD termination is carried out two weeks after the employee has notified his employer about leaving by submitting a written application.

Attention!

Dismissal of a working pensioner is unacceptable due to his or her advanced age. The Labor Code does not provide for any restrictions if the employee wishes to continue working. The employer does not have the right to re-register an open-ended TD for a fixed-term one if the employee has received the corresponding status.

The dismissal of pensioners under the Labor Code of the Russian Federation is carried out on the basis of paragraph three of the first part of Article 77. Making an entry in the work book that the termination of employment took place on the basis of these articles will allow the employee to take advantage of certain benefits provided for by law. The employer must terminate the employment contract on a date set by the employee himself.

The law on the dismissal of pensioners in connection with their retirement allows you to resign without the generally established two-week work period.

Payments to working pensioners upon dismissal should be made in accordance with the general procedure. On the last day of work, a full payment is issued, including accrued compensation for unused vacation, and a work book with entries made.

Advice from an expert

An expert from Sistema Personnel will tell you how to properly arrange everything when leaving at your own request

, prepare an order, pay the due amounts by issuing a settlement and return the labor document.

Features of dismissal of pensioners

There are several important points:

Firstly, the employer does not have the right to demand that a citizen resign when he reaches retirement age. Such norms are regulated in Art. 3 Labor Code of the Russian Federation. In Russia in 2020, the retirement age for women is 60 years, for men - 65 years. From 2019 it has been raised for 5 years.

Secondly, the resigning employee is entitled to the following payments:

1. Wages for days worked in the month in which his employment contract terminates.
2. Compensation for unused labor leave, if the employee has one.
3. Additional payments and compensations provided for by the wage regulations in force in the organization (severance pay, one-time financial assistance, etc.).

Thirdly, the accounting department of the enterprise is obliged to make the last cash settlement and pay the money upon dismissal of the pensioner at his own request without working off on the last working day.
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How to formalize the dismissal of a pensioner at his own request without service and with service in 2020

Dismissal of a pensioner at his own request without 14 days of service is possible only when entering a well-deserved retirement for the first time. Termination of the TD will take place on the basis of the submitted application. The warning period established by law at two weeks may not be observed. This benefit is valid only once.

If the work book has already previously indicated the wording “in connection with retirement” as a basis for terminating the employment relationship, then such an employee will be able to quit without a specified period of service only if there are other grounds or by agreement of the parties: the employee and the employer. An expert from Sistema Personnel will tell you how to correctly register an employee’s retirement, calculate the required coefficient, make the final calculation, and submit information to the territorial Pension Fund.

Dismissal of a working pensioner at his own request is carried out only on the basis of an application. But if this document does not indicate the reason for termination of the employment contract, then the employer has sufficient authority to require the employee to work for 14 days. Only after this the TD will be terminated on the basis of clause three of part one of Article 77 of the Labor Code of the Russian Federation.

Table. The procedure for dismissing pensioners at their own request

At his own request in connection with his retirement

Formatting a notification

When the question of whether it is necessary to work 14 days upon dismissal of a working pensioner is clear, all that remains is to correctly draw up an application. The law does not provide for a special form of notification to the employer, so it can be written in any form. The application must be submitted to the head of the organization. In this case, it is mandatory to indicate the name of the company, the reason for leaving the position, and also indicate the date.

If the notice contains the wording “in connection with retirement,” then you no longer have to worry about how many days you need to work. But this reason can only be given once. If a citizen has already left one place of work as a pensioner (the corresponding note is made in the work book), then next time he will have to find a different reason.

Leaving by an employee at work age on his own initiative

Pensioners and pensioners, in general, from the point of view of the Labor Code of the Russian Federation, are persons who have rights and responsibilities similar to those of other employees. But there is one caveat: they can quit faster than others.

Retirement due to an employee can be made on the same day. But there are situations when an older person goes through a 14-day detention.

Dismissal immediately

According to Art. 80 of the Labor Code of the Russian Federation, in some cases an employee can be fired on the very day he wishes. As a rule, on the day when the corresponding application is submitted. These include cases where layoffs occur due to retirement.

To leave an organization quickly, the following conditions must be met:

• the employee has reached retirement age;
• he lost the desire to work.

If all conditions are met, then the employee submits an application, receives settlement money and documents.

Work upon dismissal of a pensioner

It may take place. The subtlety is this: if a person of retirement age is going to retire, then the employer is obliged to let him go quickly, in accordance with the same Article 80 of the Labor Code of the Russian Federation. But, as indicated, the employee must indicate that he wants to retire, and does not plan to get a job in some other organization

If an employee of retirement age indicates in the application: “I ask you to dismiss me of your own free will,” and does not add anything else, it means that the employer has the right to set a working period - not to release the subordinate immediately.

This is what the legislator determined. Norm Art. 80 of the Labor Code of the Russian Federation looks quite logical.

Look: if an employee decides to retire, then he needs to be released immediately so that he can quickly declare the need for recalculation and indexation. As an example.

If a person plans to continue working, but in another company, then he should be considered like all other employees. That is, there is no reason to let the employee go quickly; he must work for another two weeks.

The employee wrote that he was retiring, but he got a job at another company

A situation that definitely needs to be addressed:

The person submitted his resignation due to retirement. He was immediately released. But he did not apply to the Pension Fund of Russia, did not go on vacation - he got a new job. But there was something he didn’t like there either. The employee again wanted to quit quickly, indicating that now he was definitely retiring. Can he be released without detention?

It is worth turning to the position of Rostrud and to practice, including judicial practice, too. And government agencies believe that if an employee has already asked to be released due to retirement, then it is impossible to dismiss him a second time on the same grounds.

The second employer will easily figure out that the employee once again wants to cheat a little by reading the entries in his work book. In the case under consideration, the first boss is obliged to write that the subordinate is leaving for a well-deserved rest.

Dismissal procedure

Quitting your job wisely is very easy. The procedure is:

1. An employee of retirement age prepares a resignation letter.
2. Submits it to his superiors, not forgetting to get the manager’s signature on the second copy of the document.
3. The employer prepares a dismissal order and makes an entry in the work book.
4. The boss gives the employee the money due to him.

That's it, a person is free and can have a well-deserved rest.

The main feature has already been mentioned several times: the employer has no right to refuse an employee’s request. The calculation must be carried out on the same day. Otherwise, there will be a violation of labor laws.

Sample application

As stated above, in order for a pensioner to retire of his own free will, he needs to submit an application.

By and large, it should have standard content. That is, they indicate:

1. Employee details.
2. Employer information.
3. Request for resignation.
4. Date and signature of the employee.

It is very important to correctly write the main phrase in the application - the petition itself. It depends on this whether the boss will let his subordinate go without work. You should write something like this: “I ask you to dismiss me on your own initiative due to my retirement.”

Thus, the dismissal of a pensioner on his own is a case where an exception is made to the general rule - in most situations the employee is released without working.

It remains to add that the boss does not have the right to fire a pensioner just because the latter has reached the appropriate age, which we increased in 2020.

How to avoid detention

There are special regulations on how a pensioner can resign without working and how to properly arrange for a well-deserved retirement. First of all, the employee should write a statement.

The resignation letter is written in any form, since there is no unified form. It should indicate the following mandatory details:

1. FULL NAME. and the position of the employer or the person performing the duties.
2. Your first name, patronymic, last name and position.
3. Request to be dismissed due to retirement.
4. Date of completion of employment.
5. Applicant's signature.

An example of such a statement:

You do not need to attach a copy of your pension certificate or certificate or other documents. Such demands from the personnel officer are illegal, and before a working pensioner resigns without service, it is worth finding out about this, especially since a pension certificate has not been issued for several years.

Dismissal of a working pensioner 3 days work

Latest questions on the topic “dismissal of a pensioner at his own request”

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Work for pensioners upon dismissal, labor code

Pensioners, like other employees, are subject to the general conditions of dismissal. That is, a compelling reason is required to terminate an employment contract with such an employee. But since the pensioner has extensive work experience, when downsizing, employers prefer not to part with such valuable personnel.

A pensioner may resign due to retirement without working the required 2 weeks. In the application it is enough to indicate the date of dismissal and the reason.

However, if a pensioner commits violations of the law or neglects his direct responsibilities, the employer may terminate the employment contract with him on the grounds listed in Art. 81 Labor Code of the Russian Federation.

Reaching retirement age is not grounds for dismissal, but the employer may offer such an employee a different position. This is permitted if the employee himself gives written consent. You can dismiss a working pensioner on the general grounds:

Dismissal of a pensioner without service at his own request

The head of the organization has the legal right to demand 2 weeks of work from a retired employee if such a phrase is not included in the application. It is worth noting that in the event of an agreement between the employer and an employee of retirement age, the period of service may be reduced.

Domestic labor legislation precisely determines the age when citizens can retire. For men, retirement begins at age 60, and for women at age 55.

Despite this, no manager can fire a pensioner when he reaches retirement age. The pensioner can safely continue his work activity legally.

But if he suddenly wants to retire, he has a chance to do it without working off, without violating the norms of the labor code, laws or regulations.

Dismissal of pensioners without service at their own request

Currently, the Government very often raises the issue of increasing the retirement age. This happens because often workers who have reached retirement age do not quit their previous place of work, but continue to work with their legal rights.

These provisions are described in Article 80 of the Labor Code.

It is worth considering that the article does not define restrictions on the amount of use by a pensioner of his right to independently determine the day of termination of the contract.

This means that an employee who has reached retirement age has the right to take advantage of the benefit several times .

Dismissal “without working for two weeks”: is it possible or not?

According to the general rules, dismissal “without working for two weeks” is impossible: first, a written application is provided indicating the basis and reference to the legal acts, then the management has 14 days to complete the calculations and search for a candidate (calculation starts from the next day). But in practice you can bypass this formality.

For example, a conflict arose between the parties. The employee filed an application to terminate the employment relationship on the basis of clause 3 of Art. 77 of the Labor Code of the Russian Federation and left the enterprise.

In this case, the director has the right to formalize dismissal for absenteeism.

The employee should know that neglect of deadlines is possible only if the rules for dismissal at his own request “without working off” are observed.

We recommend reading: If there is no subsistence minimum, what benefits are provided?

Dismissal of a pensioner at his own request

If there is a reduction in staff, the pensioner must be offered a transfer to another position while maintaining the existing salary level. And in this case, he must be notified of the layoff in writing along with other employees. Under such circumstances, the pensioner has the right not to work for a two-week period.

When dismissing a pensioner, do I have to work 14 days? Depends on one thing. When resigning at his own request, a pensioner must work for 2 weeks, unless in the application he indicated the reason for dismissal - retirement.

In this case, he is obliged, under general conditions, to notify his employer of his desire to stop working two weeks before the actual dismissal. This time is given by law, and the employer needs it in order to find a replacement for the employee’s position.

If an employee does not indicate a preferential reason for dismissal (retirement), then the no-work rule does not apply - he is obliged to work for two weeks at the request of the employer.

He may not work this time by agreement with his superiors; they have the right to release the employee earlier than after 2 weeks.

Dismissal of a pensioner at his own request without service: conditions, sample application

Both the employee and the personnel officer need to know exactly what should be reflected in the documents so that the law is not violated.

When we talk about how to formalize the dismissal of a pensioner at his own request without service, a sample application looks like this: “I ask you to dismiss from such and such a date on my initiative in connection with reaching retirement age, in accordance with Article 77 of the Labor Code.”

By the way, indicating the legal act is not mandatory for the employee. You don’t have to refer to the Labor Code clause, but write only about retirement.

Managers sometimes use the legal framework to their advantage. For example, if you want to get rid of an employee, he is offered to resign, since he now has another source of income.

The excuses may be different, but the meaning is the same - to force the person to leave. You need to understand that such actions are illegal.

Dismissal of a pensioner at his own request without service - Article 77 makes this clear - is carried out only on the initiative of the worker. Other options are excluded.

Pensioner and work upon dismissal under labor law

The law does not exempt the administration from responsibility, even if officials do not know whether pensioners need work upon dismissal, the correct procedure for dismissing these citizens, and the existence of a ban on refusal to hire. Such actions may be regarded as age discrimination.

• according to the prohibition of discrimination against a person on the basis of age, the pensioner is guaranteed full protection from unlawful actions of management;
• no obligation to work out the deadline for finding a replacement and dismissal of one’s own free will on the same day;
• if professional suitability is met, the employee has the right to continue his work activity;
• payment for sick leave and vacation on a general basis;
• prohibition of refusal of employment;
• if you want to work part-time, set a part-time rate;
• additional social and tax benefits;
• the advantage of staying on staff due to layoffs;
• accrual of earned pension without restrictions.

Why even work 2 weeks when you quit?

When answering the question - when a pensioner quits his job, should he work for 2 weeks, it is useful, first of all, to understand what kind of two-week work we are talking about in principle. Isn't it possible to just quit without any thought of working out?

In general, the employee does not have such privileges. Article 80 of the Labor Code of the Russian Federation requires the employee who initiated the termination of the contract with the employer to notify the latter about this no later than 14 days before the desired day of dismissal.

However, dismissal of a pensioner without service is an exception to the rule. But it also applies only in certain cases. That is, there are possible scenarios in which:

• a citizen, using privileges, does not work for 14 days (more precisely, he does not have the obligation to warn the employer about his desire to terminate the contract in compliance with this period);
• Service upon dismissal of a pensioner is still required.

Let's take a closer look at them.

When does a pensioner not work for 2 weeks?

Article 80 of the Labor Code of the Russian Federation directly states that working 14 days (warning the employer in compliance with this period) is not required if the dismissal is due to:

• employee retirement;
• the employee begins studying at an educational institution;
• other reasons provided by law.

Thus, as soon as a person receives the right to a pension, he can apply the first of the listed grounds for dismissal without service.

At the same time, whether a pensioner needs to work for the required period upon dismissal depends on compliance with a number of formalities when terminating the contract. The most important of them: the employee must indicate in the application for termination of the contract that he is resigning precisely in connection with his retirement (optionally referring to the norms of Article 80 of the Labor Code of the Russian Federation). Subsequently, this reason for dismissal is recorded by the employer in the work book of the employee with whom the contract was terminated.

Can a pensioner resign without working, simply by agreeing with an employer with whom they have a good relationship, and not paying attention to formalities? Undoubtedly. An employer can reach an agreement in this way with an employee of any age and length of service. But all this is unofficial - the law does not regulate such agreements.

Moreover, if the employer agrees to dismiss a pensioner without working for two weeks, provided that the person writes a regular application for termination of the contract (without indicating that he is going on a well-deserved rest, while the employer makes a regular entry in the work book), then the privilege in question will remain with the person “in reserve.” It can be implemented if the next employer does not turn out to be as accommodating.

What circumstances are we talking about? In what cases will the answer to the question - does a working pensioner need to work for 2 weeks upon dismissal - be positive?

How can a pensioner resign of his own free will?

For men and women, different limits are set for entering a well-deserved rest after hard work. Thus, men can exercise the right to retire after working life after 60 years, and for women the limiting age is set at 55 years .

Many of those who have the right to retire do not stop their activities after reaching this age. However, sooner or later, the time comes when a pensioner nevertheless decides to leave his workplace, of his own free will, without working off .

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Retirement Options

Retirement age and the accumulation of the amount of insurance experience are coherent concepts that have legal validity and background, as well as the established age for retirement.

A person can exercise his right, upon reaching retirement age, to take a well-deserved rest after completing his work activity after reaching a certain age . At the same time, he retains the opportunity to choose - to continue working or retire.

Answer to the question: what is total work experience and what does it include? - read here.

Work for pensioners

As the law states, the employer is obliged to respond positively to the dismissal of a person who has retired, since he has the right not to work the required period upon dismissal. This right is assigned to him at the legislative level.

However, an employee who has exercised this right once must remember that upon subsequent dismissal, he will have to work the mandatory two weeks upon dismissal.

When does a pensioner work 2 weeks?

This is possible if:

The person did not indicate in the application for termination of the contract that he was leaving due to retirement

In this case, an employer who is well aware of the norms of the Labor Code of the Russian Federation and how the dismissal of a working pensioner occurs (whether it is necessary to work for 14 days and when), can, citing formalities, require the person to work for 2 weeks.

True, nothing prevents the employee from writing another, correct statement - with the right wording. But until he does this, the obligation to work off will not disappear.

A person is re-employed after exercising the right to dismissal without working for 14 days

Moreover, it does not matter whether he returns to his previous place of work or registers with another company.

Whether a working pensioner must work 2 weeks upon dismissal depends on whether there is a record in the person’s work book indicating whether there was a previous termination of the contract on the basis of retirement. And if there is such a record, then the law does not allow such a privilege to be re-exercised.

But, again, nothing prevents a new employer from meeting the person halfway and, without thinking about whether a working pensioner must work for two weeks upon dismissal, still let the employee go without working even with an entry in the work book - and here we can reach an agreement.

This is the specificity of the legislative regulation of mutual obligations of a retiring employee and his employer. Let us now try to summarize the main conclusions to which we have come.

Summary “Q&A”

Does a pensioner work 2 weeks upon dismissal?

The answer is no if:

• he resigns on the grounds that he is entering a well-deserved retirement (and indicates this in the application for termination of the contract), and applies this basis for the first time;
• he still has “unfilled” vacation days.

The answer is yes (unless otherwise specified by agreement between the employer and employee), if:

• the person does not indicate in his resignation letter that he is stopping work due to retirement;
• after dismissal on appropriate grounds, the person is employed again (no matter with the same employer or with another), and then initiates termination of the contract.

How can a pensioner resign without working off and complying with all formalities?

The most important thing to do is to indicate in the application for termination of the contract that the dismissal occurs due to retirement. You can refer to Article 80 of the Labor Code of the Russian Federation. The employer will then make the necessary entries in the work book - unless otherwise agreed.

Is it possible for a pensioner to resign without service (if it is still required) by agreement with the employer?

Yes, this right is given to any employee (with the caveat that this issue is not regulated in any way by law). And if service is not really required, then the employer, without particularly thinking about whether pensioners work for two weeks upon dismissal, can meet the person halfway and not insist on recording in the work book that the reason for dismissal is pension. Perhaps a person will have a reason to exercise this privilege later, when it is more necessary.

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Is it possible to fire a pensioner?

It is possible to fire a pensioner, because in fact he is no different from other employees. But you need to take into account several nuances:

1. If he resigns of his own free will due to retirement, 14 days of work are not assigned (). The employer is obliged to terminate the employment contract (hereinafter referred to as TD) on the date specified in the application.
2. If it is planned to dismiss a pensioner due to staff reduction, the procedure established by law must be followed. All dismissed persons must be notified in writing of the termination of the employment contract at least two months in advance. It is also important to take into account the provisions according to which employees with higher qualifications and productivity have a preferential right to remain. This is usually typical for people of retirement age.
3. It is impossible to fire any person, including a pensioner, without reason. If this happens, the dismissed person will be able to challenge the termination of the contract within one month through the court ().

An employee reaching retirement age is not grounds for dismissal. The employer does not have the right to force him to submit an application through psychological pressure and creating an intolerable work environment. Even if a person resigns for these reasons of his own free will, he will subsequently be able to challenge the termination of the TD in court. It's difficult, but possible.