Is it possible to terminate the contract prematurely, including resigning of one's own volition?

In appeals received by the prosecutor's offices, as well as during trade union receptions with the participation of prosecutors, the question is often raised: Is it possible to terminate a contract prematurely, including resignation at one's own request?

Article 40 of the Labor Code of the Republic of Belarus defines the procedure for terminating an indefinite-term employment contract at the employee's request.

Termination of a contract, which is a type of fixed-term employment contract, at the so-called "own will" is not provided for by law.

As a general rule, a contract, like any other fixed-term employment contract, terminates upon its expiration. It is also possible to terminate this type of employment contract at any time by agreement of the parties – the employee and the employer. In this case, there must be an agreement between the parties on the early termination of the employment relationship from a specific date.

It should be noted separately that Article 41 of the Labor Code provides for the possibility of early termination of a contract at the employee's request in the presence of valid reasons.

The legislator includes, in particular, violations by the employer of labor legislation, collective or labor agreements among such valid reasons. These violations may be expressed, for example, in the failure to ensure healthy and safe working conditions, the failure to provide guarantees and compensation in connection with hazardous and (or) dangerous working conditions, non-compliance with labor protection standards for women, youth, and disabled persons, non-payment or untimely payment of wages.

When terminating a fixed-term employment contract at the employee's request due to the employer's violation of labor legislation, collective or labor agreements, in accordance with Part 2 of Article 41 of the Labor Code, the fact of such violation is established by a specially authorized state body for supervision and control of compliance with labor legislation, trade unions, and (or) the court.

The specially authorized body for supervision of compliance with labor legislation is the Department of State

of the Ministry of Labour and Social Protection of the Republic of Belarus.

 Having established, at the employee's request, a fact of violation of labor legislation, a collective or labor agreement, the Department (its bodies) shall, as a rule, reflect it in the inspection report, the demand (order) issued to the employer based on the results of the inspection, in the administrative offense report and shall inform the employee about it.

 In this case, the legislation does not grant the Department the right to demand early termination of the contract from the employer upon establishing the fact of violation of its terms.

 Such a demand may be made to the employer by the employee. In case of the employer's refusal to terminate the contract early at the employee's request based on the fact of violation of the contract terms, established by the Department, the employee has the right to appeal such a decision of the employer in court. If the violation is not documented, but is only perceived by the employee as such, the right to demand early termination of the contract does not arise for him.

As indicated above, the employee may also apply to the trade union and directly to the court regarding the establishment of a fact of violation of labor legislation, a collective or labor agreement. The court, having established the fact of violation, has the right to oblige the employer to terminate the contract early at the employee's request.

In addition to the specified grounds, early termination of the contract is possible at the employee's request in case of illness or disability preventing the performance of work under the contract, as well as for other valid reasons, the list of which is not established by the legislator.

In practice, such valid reasons may include: the need to care for sick family members; pregnancy of a woman; direction of a spouse to work (service) abroad; relocation to another permanent place of residence in another locality; retirement. In this case, valid reasons for terminating the contract at the employee's request must prevent or significantly hinder the performance of work under the contract.

In case of refusal

If the employer refuses to satisfy the employee's demand for early termination of employment relations due to valid reasons, the employee has the right to apply to the court on this matter. The plaintiff (employee) shall provide evidence of valid reasons for early termination of the contract to the court.

If the plaintiff's claims for early termination of the contract under Art. 41 of the Labor Code are satisfied, the date of termination of employment relations shall be determined by the court depending on the actual circumstances of the case. Until the court makes a decision on early termination of the contract, the plaintiff has no right to stop working, as such termination may be grounds for dismissing the employee for violating labor discipline.

Prosecutor of the Department for Supervision of Legislation Enforcement and Legality of Legal Acts
Tatyana Ivanova