On the presumption of «voluntary dismissal» of an employee (based on judicial practice)

The constitutional right of a citizen to freely dispose of his ability to work presupposes not only the right to free choice of place and form of realization, but also the possibility of unhindered change of type of labor. Such an opportunity is provided by the norms of labor legislation providing for the procedure for termination of an employment contract at the initiative of an employee. At the same time, the necessary legal conditions must be provided to achieve optimal coordination of the interests of the parties to the employment contract, including the employer. Based on the analysis of judicial practice, the authors believe that the latter is not fully implemented in practice, since when considering labor disputes on the specified basis of termination of an employment contract, the rule for the distribution of evidentiary duties is significantly transformed, and legally significant circumstances indicating the lawful behavior of the employer follow not from the law, but from the legal positions of the Supreme Court of the Russian Federation and decisions of lower courts.