Vacation is one of the ways to exercise the right to rest for employees working under employment contracts. Let us immediately note that leave cannot be granted to those employees who work under a civil contract.
By general rule The duration of leave is 28 calendar days and it must be granted annually. If an employee has just joined an organization, then the right to use for the first year of work arises only after six months of continuous work with this employer. Part-time workers are granted leave at the same time both at their main and second place of work.
By agreement of the parties, annual leave can be divided into parts: one of them cannot be less than 14 calendar days, and the second half is not limited in any way, that is, provided in any number of the remaining days (for example, three calendar days).
Vacation pay is calculated according to the resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1. They must be paid no later than three days before the start of the vacation (). An employee's vacation in the time sheet is reflected by the code “OT” or “09”.
The work book indicates the reason for termination of the contract (for example,) and the date of dismissal, that is, the corresponding day of the month last day vacation.
About receipt labor worker must sign in the book for recording the movement of work books and inserts in them, as well as in the personal card.
If the vacation period coincides with what is indicated in the vacation schedule, then the employee must only write a letter of resignation. This is due to the fact that the basis for granting rest is the approved vacation schedule (for more details, see the article “Annual leave: from general to specific” in the journal “Practical Accounting” No. 6, 2013).
Temporary disability
In the event that an employee falls ill while on vacation with subsequent dismissal, he is paid temporary disability benefits (letter of Rostrud dated December 24, 2007 No. 5277-6-1). Calculation of benefits is carried out according to general rules, which are enshrined in Federal law dated December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity.”
In this case, the date of dismissal is not postponed, since there is no provision for extending the leave by the number of days of illness, as well as its transfer to another time.
Withdrawing a resignation letter
Labor legislation allows an employee to withdraw his application even on the day of dismissal (). However, in this case, the application can be withdrawn only before the start of the vacation, since in fact the employment relationship with the employee terminates from the moment the vacation begins.
At the same time, the employer may refuse to withdraw the application for dismissal even if it was made on time, that is, before the start of the vacation. This is possible when another person has already been invited to replace the person being dismissed and who cannot be refused employment. An invitation to work must be in writing.
E. G. Chekmarev,legal expert
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Labor legislation guarantees every employee the right to work leave. Its timing and onset time are determined at each enterprise in advance using a special schedule. Let's figure out what to do in a situation where an employee wants to quit, but he has not yet used his legal leave.
Legal regulation
- As usual, use your rest days with dismissal at will after vacation. The number of rest days in this case is provided depending on the time worked in the company.
- Receive a cash payment from the employer (the procedure is regulated by Article 126 of the Labor Code).
The employee himself offers the employer one of the options, but the final decision is made by the employer.
Step-by-step registration instructions
- The first step is for the employee to draw up a vacation and resignation letter.. It must be submitted in writing no later than 2 weeks before the holiday. The text of the application must include:
- Request for early leave for a certain number of days;
- Its start and end dates;
- Expressing a desire to quit after vacation.
- Consideration of the application by the employer. Based on its results, he either agrees with the employee’s proposal or decides to pay him compensation for leave upon dismissal. In the first case, 2 documents are required:
- An order for leave followed by dismissal. Filled out according to the established form No. T-6. It contains information about the employee and the start and end dates of the vacation.
- Order of dismissal form No. T-8. The date of dismissal is considered to be the day following the last day of vacation. The employee must be familiarized with the order.
- At the end of the vacation, the employee is given a work book with a record of dismissal.. On the same day, the final payment must be made to the employee. In some cases, employers may issue a work book to an employee before going on vacation.
If the employer refuses to provide an employee with leave before dismissal, the employee will have to work 2 weeks after submitting the application. After this period, the employer is obliged to terminate the employment contract and pay compensation to the employee.
Entry in the work book
As a rule, entries in the work book about dismissal are made along with filling out a sample order for leave with subsequent dismissal. That is, the entire documentary procedure for dismissal occurs several days before the official date of termination of the employment relationship, before the employee goes on vacation. Thus, the law does not allow employees to withdraw their resignation letter if the vacation has already begun.
A regular notice of dismissal is drawn up in the labor report in accordance with the grounds provided for by the Labor Code without any indication of the use of vacation.
Features of leave followed by voluntary dismissal
In the event that the dismissal occurs after next vacation, the employee has the right not to work 2 weeks established by labor legislation. In this case, vacation days are included in working hours.
If an employee falls ill during vacation, the sick leave will be paid for by the employer. However, the leave in this case is not extended and the date of dismissal is not postponed.
A lawyer will tell you how to grant an employee leave followed by dismissal:
When is payment made for vacation followed by dismissal?
The timing of vacation pay is regulated by Article 136 of the Labor Code. In accordance with it, vacation pay must be issued to the employee no later than 3 days before the vacation.
The amount of vacation pay in accordance with Article 139 of the Labor Code depends on the average wages employee. can be done as follows:
- The entire employee’s income in the organization for the last calendar year is summed up;
- Sick leave and previously paid vacation pay are subtracted from the resulting figure;
- The resulting number is divided by 12 (the number of months in a year) and 29.3 (the generally accepted coefficient for the number of days in a month);
- The figure resulting from these calculations represents the average daily vacation pay. To determine the amount of vacation pay, it must be multiplied by the number of days of rest due to the employee.
It is worth noting that the final calculation, which will include wages, severance pay, other compensation payments provided for by law or the organization’s collective agreement will be received by the employee only on the day of dismissal. At the same time, a settlement occurs with the employee who did not use his right to leave before dismissal, but received compensation for it.
Any questions you may have can be asked to a lawyer in the comments to the article.
It is possible to permanently terminate the employment relationship with the employer during vacation only at the request of the employee. The law allows an arbitration or bankruptcy trustee to terminate a contract with an employee upon the final liquidation of the organization and declaring it bankrupt in court.
Reasons
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Possible termination employment contract due to circumstances beyond the control of the employer and employee. Their list includes:
- if an employee joins the army or joins an organization for alternative service;
- if the employee is reinstated in the workplace by decision of the labor inspectorate or court;
- if it is impossible to be re-elected to a position;
- conviction of an employee to administrative or criminal punishment, providing for the inability to work in the organization;
- death of citizens - employer and employee, recognition by the court as missing or dead;
- the occurrence of emergencies, disasters, major accidents that are recognized as such by federal or local acts;
- other cases provided for in paragraphs. 8-13 art. 83 Labor Code of the Russian Federation;
Dismissal during vacation requires full payment on the last working day. The employee must receive a work book, document 2-NDFL, etc.
Legislation
The grounds for deduction from an employee’s salary are specified in the Labor Code of the Russian Federation - Art. 137. Unified order forms (on granting leave to an employee) are established by the Resolution of the State Statistics Committee of January 5, 2004.
Notification
In the application, the employee can indicate the desired date of dismissal.
An employer can dismiss an employee before the minimum two-week period during which the employer can hire a new employee has expired.
An application for dismissal may be submitted earlier than 14 days before the actual termination of work.
During vacation, an employee can send an application by registered mail. When contacting the director in person, you must make sure that the application has been accepted by an employee of the human resources department and the corresponding note has been made in the registration log (registration number of the application and the date of its submission).
The employer cannot prohibit resigning, but has the right to refuse to provide leave with subsequent termination of the employment contract. The parties have the right to agree on a dismissal date earlier than 14 days.
Dismissal during vacation
Termination of an employment contract during the vacation period is possible. Its duration does not matter, but it is advisable to submit an application 14 days before the end of the vacation.
Otherwise, the employee will have to work the remaining days. If all 14 days fell on all vacation days, then the employer does not have the right to force the employee to work after the vacation.
At your own request
An employee has the right to resign at any time. His only obligation is to notify the employer in advance of his departure.
It is prohibited to forcefully dismiss an employee while he is on vacation.
By agreement
Dismissal is carried out by agreement. Mutual consent of the employee and director is required.
The difference lies in the need to agree on the terms of termination of the employment relationship, the initiative of the parties.
The calculation note for dismissal, form No. T-61, contains information about the basis for dismissal, information about vacations used, including those provided in advance.
Educational
Employee studying by correspondence training, has the right to apply for termination of the employment contract at any time, having previously notified the director of the enterprise or other authorized person about his dismissal.
Maternity leave
Dismissal is carried out on a general basis. The mother must be paid all entitlement leave pay. Subsequent child benefits are assigned by social protection authorities.
The application can be sent by letter or by submitting it in person to the HR department.
Registration procedure
Dismissal at one's own request during vacation is formalized. After considering it, the employer issues and draws up a settlement note.
If the application was received from an employee during vacation, the employer may subsequently cancel the order to grant leave and accept a new order for leave of shorter duration.
The order may be accompanied by memo. You need to cancel the initial order in order to recalculate vacation pay, and for this you need documentary justification.
Preparation of documents
The HR department is in charge of the preparation. He fills out an application and presents it to the employee for signature. A draft order is also prepared by an employee of the HR department. The calculation note indicates the exact amount of vacation pay, calculation based on days actually worked.
Documents must be prepared in a timely manner - by the day the work is actually completed.
Submitting an application
In 2019, there is no single form for applying for resignation during vacation. It is developed by the employer himself. The application must be submitted in person to the HR department or by registered mail.
The employee must be sure that the employer is notified that the employee is about to resign.
The employer can set the notification date in his own way. For example, an employee will indicate one number in a letter, and the entry can be made several days later. Such disagreements are resolved privately.
Sample
The application indicates the name of the employer's organization, the full name of the official, the request for dismissal and the preferred date. The application indicates the date and signature of the employee.
If the leave is granted in advance?
The Labor Code of the Russian Federation does not indicate that vacation should be proportional to length of service. This is stated in Letter of Rostrud No. 947-6 dated June 23, 2006. An employee can fully use the main leave after six months of work.
If the leave is provided in advance and the employee does not work it, the employer has the right to withhold overpaid days from the employee’s calculation.
Is it possible without working out?
There is no concept in labor legislation. The employee must give notice of his resignation 2 weeks before the actual end of work. But in practice, it continues to work for the specified period.
2 weeks are not worked out if the application is submitted during the vacation period and the two-week period falls entirely on vacation days.
An employee may not comply with the notice period if he is actually unable to continue working in the employer’s organization (due to leaving, joining the army and for other valid reasons).
Calculation terms
Must be completed on the employee's last day of employment. If he cannot appear for payment, then the amount is transferred by agreement with the employer at a different time.
At any time before the expiration of the two-week period, the employee may withdraw his resignation letter if another employee who, by law, cannot be refused employment, has not been invited to take his place by way of transfer.
In the event of a vacation followed by dismissal, it will not be possible to withdraw the application, since the settlement with the employee is carried out on the last working day.
Debt collection from an employee
It is possible before the actual payment for unused vacations and overcharged salaries.
Is it possible to quit while on vacation? Labor legislation prohibits terminating an employment contract with an employee who is on vacation.
An exception to the rule is dismissal during vacation at the employee’s own request.
It is impossible to fire a person at the initiative of the enterprise, but the employee himself can vacate the position at any time, observing the rules labor law.
Answering the question: “Is it possible to quit while on vacation?” Let's turn to the legislation. The Russian Labor Code determines that an employment relationship can be terminated when:
- The company is being liquidated or individual entrepreneur ceases its activities. In this case, employees must receive warning of their upcoming dismissal 3 months before its expected date. The period is reduced only if the organization was forcibly declared bankrupt.
- A written agreement between the employer and employee stating that the employment contract is terminated is also legal.
- At the request of the employee himself (dismissal during and after vacation at his own request).
Procedure for submitting documents for dismissal
An employee is required by law to inform the employer no less than before the day of proposed dismissal.
This is done so that the HR department or the manager himself selects a new employee for the vacancy without interrupting the “production process.”
This period is often confused with, but this is a substitution of concepts: the Labor Code says nothing about such responsibilities, we are talking only about filing an application.
You can submit your application either in person or in writing; recall from vacation is not required. It is sent to the legal address of the company; when the actual and legal addresses do not match, it would be better to send two forms to both addresses at once: this guarantees the absence of disputes if the employer claims that the letter was not received. Management has no right to refuse to consider an application.
A letter is sent to the manager indicating the preferred date of dismissal. It can be sent including:
- by fax (keeping the original);
- Russian Post;
- commercial delivery service.
If you choose postal delivery, send the application by certified mail and be sure to keep the postal receipt of receipt: by law, the signature or consent of the manager is not required.
If the application is submitted in person, it must be registered in the office. The right of dismissal for an employee is established by law; he is only required to notify the director of his desire in writing 14 days in advance.
Is it possible to quit while on vacation without working?
The employee is not required to be at the workplace for the last two weeks; he can agree to this if he is invited, but only if he wishes.
The employer has no right to interfere with dismissal or documents - this would be a violation of the law and would cause serious problems.
The employee is only obliged to give notice of his departure, and not actually remain at the workplace for another two weeks.
If an employee decides to terminate the contract early, without waiting 14 days, he can ask management about this; the Labor Code contains no restrictions.
If the employer is against it, the law defines several reasons for the immediate termination of the employment contract:
- the enterprise violated labor legislation(in this case there must be a decision of the court or labor inspectorate);
- the employee faces an urgent move;
- illness of close relatives is also a valid reason.
Do you get fired while on maternity leave?
Is it possible to quit while on maternity leave?
Legal reasons for dismissal on maternity leave:
- Liquidation of the enterprise. Enterprises are notified in advance about upcoming structural changes, and on the day of dismissal in the column work book reasons for staff reduction are included.
- Agreement of the parties. If a mutual agreement is reached, there is no need to write an application: a written agreement is concluded, on the day of which a paycheck and a work book are issued.
- At your own request. Such dismissal is no different from ordinary dismissal - an application must be submitted to the manager 2 weeks before the expected vacancy of the position.
Child care benefits will be paid by social security, and after registration with the employment service, one of the benefits will need to be waived.
It is prohibited to dismiss:
- a mother whose child is under three years old;
- a single mother with a disabled child under 18 years of age;
- single mother with a child under 14 years old.
Is it possible to quit before going on vacation?
Allowed, subject to the rules of working relations.
There may be two options with different calculations and design:
- submit an application while already on vacation;
- apply for a request to provide .
Legislation Russian Federation Many human rights and interests are protected, including the right to the opportunity to work and rest. Not making a mistake in choosing a profession and getting a job is everyone’s personal matter. If for some reason your job has ceased to bring satisfaction, you should think about taking a vacation or take drastic measures and change it to a new one. But first you need to part with the old one. How to quit without making mistakes? What if there is unused rest? One of the options is going on another vacation followed by dismissal.
Who can take what to quit immediately?
Article 127 Labor Code Russia guarantees every employee working under both a fixed-term and an open-ended employment contract the right to go on vacation with subsequent dismissal. The only condition is that he has no guilty actions. These include: repeated dishonest performance or gross violation job responsibilities, absenteeism without good reason, embezzlement, coming to work under the influence of alcoholic, toxic, narcotic substances, etc.
If an employee’s documented employment relationship expires, he has the right to ask for leave with subsequent dismissal, even if he ends up outside the term of the contract. Dismissal after vacation has one caveat: the vacation period will not be included in the length of service on a general basis. For whom this point is important, it makes sense to send it to the employer while already on vacation.
Will he provide it or not?
When an employer’s representative receives an application for leave followed by dismissal (a sample will be described below), he has the right to agree on it. federal Service on Labor and Employment (letter dated December 24, 2007 N 5277-6-1) explains that this is only his right, and not one hundred percent obligation. In cases where an employee is required at work, he may be denied days off. The employer’s refusal will be unlawful if the person goes on vacation in accordance with the approved schedule. In general, for a representative of the employer to apply for a leave of absence followed by dismissal is a troublesome procedure. It is easier to give the employee the opportunity to work the period required by the letter of the law and compensate for the vacation in monetary terms.
Do the rules of law stipulate the deadlines for submitting the relevant application for leave and the deadlines for leaving?
At any time, a person has the right to send an application to the employer’s representative for leave with subsequent dismissal. It is not necessary to follow the approved vacation schedule. If the decision to leave coincided with a vacation in accordance with the document defining the vacation order of employees, an application for vacation is not required.
According to the Labor Code of the Russian Federation, the dismissal of an employee (in the absence of any guilty actions) can occur on his own initiative (with his voluntary expression of will) or by agreement of the parties. In this case, the employer must be notified of the intention to leave in advance, at least two weeks in advance. The calculation of the two-week period begins on the second day after the submission of the relevant application. At the same time, the employee has the right to express a wish to take his allotted vacation.
If the parties have agreed, the employment relationship can be terminated early by agreement of the parties, without waiting for the end of the working period. It is possible to take off unused vacation upon dismissal, for example, in cases of staff reduction, change of ownership of the organization, having in hand the corresponding notice of reduction. The presence of circumstances that have arisen, be it the deadline for reaching retirement age and the desire to take a well-deserved rest, full-time admission to educational organization or violation by the employer of the provisions of labor law, also serves as the basis for the possibility of using leave. In this case, the employee has the right to specify the date in the application, but may have to confirm the fact of the circumstances that served as the reason for the decision to leave, for example, with a copy of the order or a certificate of enrollment in a university.
Where to begin?
Before submitting an application, a person must understand exactly how many days of rest he is entitled to on the start date of his vacation. This information will be provided by the HR department. You can take not all days off, but only part of them. If an employee has been registered with the organization for six months, but has not worked for another working year, he is entitled to a full annual basic paid leave of four weeks. The only thing that will be paid is the actual time worked, which is calculated in months: less than half of the month is not counted, more than half is rounded up to the full.
To terminate a documented employment relationship on his own initiative, an employee must prepare two documents to management:
- an application for leave followed by dismissal (a sample is attached below), which specifies the terms and duration;
- resignation letter indicating the reason (at your own request) and the terms of departure.
If we're talking about on the agreement of the parties, then again an application for leave with subsequent dismissal is prepared (the sample is similar to that in the case of leaving of one’s own free will), and the employer prepares an agreement on termination of the employment relationship.
To avoid misunderstandings, it makes sense to take a receipt for the employer’s receipt of the applications. You can limit yourself to a mark on their receipt, affixed to copies or second copies.
Application for leave followed by dismissal: sample, structure
Although the statement is written arbitrarily, by hand or typed in printed form on a PC, it has a certain structure, like any other similar official appeal from a citizen. At the top in the right corner of the appeal the addressee and applicant are indicated. The addressee is also the leader: his position, name of the organization, surname, initials (in the dative case) are important here; the applicant is also the author of the appeal: his position, surname and initials (in the dative case) are sufficient. The body of the application must contain a request for days of rest, start and end dates, and total duration. Required: the note “with subsequent dismissal”, signature and date.
To the head of LLC "Investcom"
Ivanov I. I.
sales specialist
Sidorova T. T.
Statement
Please provide the annual main one from April 2, 2015, lasting 14 calendar days, followed by
The structure of the resignation letter will be similar.
To the head of LLC "Investcom"
Ivanov I. I.
sales specialist
Sidorova T. T.
Statement
Applications for leave and dismissal have been submitted. What's next?
If the employer has signed both applications, then all necessary procedures for correct documentation and financial calculation. The first thing that needs to be prepared are orders on the approved unified forms: on granting leave and on dismissal, which the employee gets acquainted with under signature. Based on the signed orders, vacation calculations with subsequent dismissal are prepared and carried out. It includes two components: vacation pay and the balance of cash payments due to the employee. This includes: salary, bonuses, vacation compensation upon dismissal. Therefore, for accounting, it is important to have certificates and calculations prepared by the HR department indicating how many days a person will be on vacation, and what part of it will have to pay compensation.
Play on words
According to the Labor Code of the Russian Federation, dismissal in our case is carried out on the final day of vacation. The termination of the employment contract will date back to the last day of the person’s stay at work. For us, this is the day that precedes the start of our vacation.
Terms of payments and issuance of labor
As for vacation pay, following the general rule, the accounting department needs to calculate it and have time to transfer it (hand it over) to the employee three days before he goes on vacation. The work book and the due final payment in connection with leaving work, including compensation for leave upon dismissal that remains unused, must be made on the last working day, since the person does not return to work from leave. If necessary, the employee has the right to receive other documents, including copies of them, certified in accordance with the procedure established by law, related to work. It is mandatory to obtain a certificate from the accounting department in form 2-NDFL for the last two years for probable payment of sick leave at a new place of work.
Dismissal after vacation: work report not received on time
What to do if a person’s last working day falls on a weekend or holiday. Perhaps the employee was not at work that day, was on a business trip and was not able to receive documents and payment. Since it is impossible to issue a work permit before the due date, the issuance of documents and money must be carried out on the first working day after the weekend, holiday or the last working day of the resigning employee. Although in this situation the person is already on vacation. To do this, a notification letter should be sent to the employee with a request to come and receive a work report and payment at the place of work or agree on the possibility of sending a work report by post(if the payment is transferred to a bank account). This notice will serve as the basis for removing responsibility from the employer for failure to comply with the deadlines for handing over the work book. Upon written request, the dismissed employee should be issued a work permit within three working days.
Changed my mind about quitting
If plans have changed, the employee has the right to withdraw his resignation letter before going on vacation if another employee has not yet been invited to take his place by way of transfer. But, being already on vacation, he has no right to turn back the clock and refuse the decision made. Having addressed the employer with this request, the employee will receive a refusal. If a person’s decision to continue employment at his previous place of work is approved, the leave will have to be canceled documented, followed by dismissal. Compensation for funds paid is subject to recalculation and withholding. A corresponding entry about the invalidity of the decision is made in the labor report.
Got sick on vacation
If a person falls ill while on leave following dismissal, he is entitled to sick pay. The previously mentioned letter from the FSTZ prohibits him from extending his vacation by the number of days of temporary disability.