The company is required to provide leave before dismissal only if it is scheduled.
Let’s say an employee decides to leave the company after taking time off another vacation according to the approved schedule. In order not to go to work later, it is enough to notify the employer in writing two weeks before the planned dismissal of your intention to terminate the employment contract. Reason - part 1 of article 80 of the Labor Code of the Russian Federation. In this situation, vacation can be replaced with monetary compensation only if the employee does not object to this.
If an employee quits and asks for vacation during a period that does not coincide with the vacation schedule, the employer has every right to refuse. And demand two weeks of work before the employment contract is terminated. Then the employee will receive compensation for all unused vacations.
Those employees who are separated due to expiring employment contracts also have the right to leave followed by dismissal. And even in cases where the vacation time goes beyond the period for which the contract was concluded.
But please note: when an employee is fired for guilty actions, that is, on the grounds listed in paragraphs 5-11 of part 1 of Article 81 of the Labor Code of the Russian Federation, the employer cannot provide leave followed by dismissal. Although the right to monetary compensation is retained.
Payment to the employee
By general rules It is on the day of dismissal that the employer pays the employee, gives the work book and other documents related to the work (Article 84.1 and the Labor Code of the Russian Federation). But when an employee is fired after a vacation, the last day of work and the date of dismissal do not coincide. The day of dismissal is considered the last day of vacation, including for employees with an expiring employment contract (Article 127 of the Labor Code of the Russian Federation).
Explained what to do in this situation constitutional Court RF (definition of January 25, 2007 No. 131-О-О). The judges indicated: when an employee goes on vacation with subsequent dismissal, the last day of work should be considered the working day preceding the vacation. And not the last day of vacation, which is the day of dismissal.
Thus, it is necessary to pay the employee and issue a work book even before the vacation begins. That is, an entry in the work book is made in advance. In this case, the last day of vacation is indicated as the date on which the employment contract was terminated. The wording depends on the basis on which the employment contract was terminated (see sample).
Duration of vacation followed by dismissal
If an employee works for a company for more than six months, he has the right to count on vacation followed by dismissal of at least 28 calendar days. This conclusion follows from Article 122 of the Labor Code of the Russian Federation and is confirmed by officials Federal service on labor and employment (letter dated December 24, 2007 No. 5277-6-1).
Officials reason as follows. The legislation does not provide for the possibility of providing an employee with partial annual paid leave in proportion to the time worked in given year. Therefore, regardless of the time worked, a citizen is entitled to full leave.
If a person quits without working until the end of the year for which he received annual paid leave, the excess paid vacation pay is withheld from wages. In a situation where an employee goes on vacation with subsequent dismissal, only those days of vacation are paid for which monetary compensation would be due upon dismissal.
The period of vacation followed by dismissal is included in the length of service giving the right to annual paid leave. If during the holidays there are non-working days holidays, its ending is shifted. Holidays will increase the actual duration of your vacation, but you do not need to pay for them. Basis - Labor Code of the Russian Federation. Dismissal will be postponed for the appropriate number of calendar days.
Example: An accountant counts the days of vacation followed by dismissal that need to be paid
Vasnetsov A.P. works at LLC Chafer» from September 1, 2009. On April 1, 2010, Vasnetsov wrote a statement asking to be granted leave for 28 calendar days from April 5, followed by dismissal. The management of Maiskiy Zhuk LLC decided to grant vacation to Vasnetsov. Since May 1 is a public holiday, the day of dismissal is May 3, 2010.
The accountant calculated how many calendar days of vacation Vasnetsov earned for the period from September 1, 2009 to May 3, 2010 (the vacation period is included in the length of service, which amounted to eight months):
28 days : 12 months x 8 months = 18.67 days
Vasnetsov's average daily earnings are 1,350 rubles. Therefore, in 18.67 days he will be credited with 25,204.50 rubles. vacation pay. That is, Vasnetsov will rest for 28 calendar days before dismissal, but will receive vacation pay only for 18.67 days.
Let's say an employee gets sick while on vacation before leaving. If an employee presents a sick leave certificate, he must be paid temporary disability benefits.
Vacation unused due to illness does not need to be extended, just as the date of dismissal should not be adjusted.
Documentation of leave followed by dismissal
Regardless of who initiates the dismissal, the employee writes a leave application. If an employee leaves the company of his own free will, this also includes the dismissal of an employee after a vacation, he can write one statement: about dismissal and for vacation (see sample).
An accountant-HR officer cannot get by with just one document. You will have to prepare two orders at once:
- on granting leave to the employee (form No. T-6);
- on termination of the employment contract (form No. T-8).
Please note that the order to terminate the employment contract is drawn up on the last working day before the vacation.
When an employee is dismissed by agreement of the parties, the leave is mentioned in the agreement itself (see sample).
Revocation of a leave application by an employee followed by dismissal
Let’s assume that the employee himself asked the employer for a vacation with subsequent dismissal. And then he changed his mind about leaving the company.
If the vacation has not yet begun, the resignation letter can be withdrawn. But only if another employee is not invited to replace the resigning employee by way of transfer (Part 4 of Article 127 of the Labor Code of the Russian Federation).
Please note that this restriction only applies if the invited employee has already left the job. previous job(Decision of the Supreme Court of the Russian Federation dated July 11, 2008 No. 48-B08-6). Otherwise, the employer will have no grounds to deny the employee the right to remain at work.
To continue working, the employee writes a new application with a request to invalidate the previous one. The employer cancels the dismissal order.
Once the vacation begins, the employee will no longer be able to withdraw the application. Rostrud officials recalled this in a letter dated December 24, 2007 No. 5277-6-1. However, if the employer does not object to the employee remaining in the company, the employment contract will continue. This follows from the norms of Part 6 of Article 80 of the Labor Code of the Russian Federation.
Getting a job before the vacation followed by dismissal ends in the same place
Let’s assume that an employee leaving his previous job formally resigned after a vacation. This right is provided for in Article 127 of the Labor Code of the Russian Federation. The day of dismissal will be considered the last day of the vacation granted. The same date will be indicated in the work book, which is given to the employee on the last working day before the vacation.
If the vacation has not yet ended, the new employer will not have the right to hire the citizen to the main position. And even despite the fact that the applicant for the position does not actually work anywhere and has a work book in hand. If the date of dismissal has not yet arrived, the person can only be registered under a part-time job or a civil contract. When will the vacation end? previous place work, the citizen can be transferred to the main position.
The Labor Code provides officially employed individuals There are many ways to terminate a contract concluded with an employer.
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Moreover, in most cases it protects the rights of employees, but not the employer. This is why an employee can resign directly during vacation at his own request.
Is it possible
If an officially employed employee decided for some reason to resign of his own free will while on vacation, then the implementation of this action will not be considered illegal.
Labor Code, as well as others regulations do not contain articles that make it impossible to terminate an employment contract during vacation by an illegal process.
But it is worth remembering that this kind of procedure has a large number of various nuances. The most important of them are the following:
- To fill out an application, you do not need to interrupt your vacation or make a call from it;
- It is necessary to comply with the deadlines for submitting the application.
The situation of providing leave in advance is special. Registration of this kind of vacation on credit is possible on the basis of current legislation.
There is no requirement to maintain any proportions between the length of vacation time and the amount of time worked. This point is covered in as much detail as possible in the letter from Rostrud dated June 23, 2006.
If an employee is on vacation, there is simply no need to suspend it. It will be enough to fill out the application accordingly and submit it to the HR department.
However, again, it is not necessary to do this in person. It will be necessary to send the application itself by registered mail with a list of attachments to the employer’s address.
The work book itself can also be received by mail - you just need to indicate this moment in the resignation letter.
Very important nuance, which must always be remembered is the obligation to comply with the deadlines for filing the relevant application.
According to current legislation, it is mandatory to notify your employer of dismissal 2 weeks in advance.
But if the employee who wrote the application is on sick leave or on vacation over the next 14 days, then given period cannot be increased.
If during the entire two-week period the employee is on vacation, then at his own workplace he may not return.
If the vacation ends before this period, then the obligation to work arises. this period. But this moment always remains at the discretion of the employer himself.
Deadlines
The time period within which an employee is obliged to notify his employer of dismissal is specified in the Labor Code Russian Federation.
In fact, the duration of the dismissal process can be this entire period. Moreover, the countdown begins from the day when the employee submitted a properly completed application to the personnel department.
But at the same time, the period for voluntary dismissal during vacation can be significantly reduced.
If the employer does not want to meet his employee and carry out the dismissal process in one day, then he should refer to the Labor Code.
It provides for cases when the employer is obliged to carry out the dismissal procedure on the date of filing the application (it is important that it be a working day).
The list of such situations includes the following:
- the employee was enrolled as a student in any educational institution;
- the employer has violated in any way labor legislation;
- it is required to provide care for a disabled person of group I;
- retirement.
If you want to resign of your own free will, but the vacation ends before the two-week period expires, then you don’t have to work the remaining period of time based on the reasons stated above.
Especially often, various older people use this method of dismissal - they deliberately take vacation in such a way that they can retire immediately after it.
Order
The procedure for dismissing an employee at his own request is extremely simple.
It includes the following main steps:
- the employee writing an application in the appropriate form;
- formation of a special order - it is signed by the head or other official who has the right to do so;
- the accountant calculates the company's debt to the employee or vice versa - after which the funds are transferred to the account;
- the employee picks up the work book.
When writing a resignation letter of your own free will, there is no need to follow any specific format.
The HR employee must formalize the dismissal process accordingly. Its task is as follows:
- preparing an order in form T-8, submitting it for signature to the director, his deputy or other authorized person;
- making an appropriate entry in the work book.
The second point is especially important. The employee should check as carefully as possible what exact wording was written down in the work book.
Because sometimes, it still happens that management, out of a desire to cause harm, prescribes some unflattering article as the reason for dismissal - absenteeism or something else. With such a record, it will be extremely difficult to find a job later.
Of course, this is a very serious violation of current legislation. But some employers still practice such “revenge”.
The work book must contain the following entry in the case under consideration: “Dismissed at his own request on the basis of the Labor Code of the Russian Federation.”
If for some reason the recording sounds different, then you should immediately go to court. Since the employer in this way seriously violates the legislation in force in the Russian Federation.
Also, a serious violation of current legislation is non-return work book during.
How to write an application
Writing a resignation letter is the most simple step this process. It is compiled in free form. Can be handwritten or printed on a PC.
But it must contain the following information:
- in the upper right corner:
- name of company;
- surname, name and patronymic of the director or acting director;
- text of the statement itself:
- a briefly formulated request for dismissal indicating the reason (optional);
- desired date of dismissal;
- in the lower part:
- Date of preparation;
- applicant's signature;
- space for the signature of the head of the HR department;
- space for the signature of the director/acting officer.
If an employee has any doubts about the employer’s honesty, he or she should be required to put a mark on the acceptance of this document by the HR department.
Or simply send this document by registered mail with a list of attachments. Since there are often precedents when an employee of the HR department simply throws the submitted application into the trash bin.
In this case, proving the case in court will be extremely problematic, since there will simply be no confirmation of submission of the application to the personnel department.
Dismissal of one's own free will during vacation without work
There is a fairly long list of ways to avoid working out upon dismissal. But some of them are quite difficult to implement. The easiest way is to go on vacation and write a letter of resignation on time, when the vacation has not yet ended.
But sometimes, for some reason, such a scheme simply cannot be implemented. In this case the best way out is a compromise with the employer.
Since, by agreement, the management of the enterprise can dismiss an employee in one day, in compliance with all legal norms.
Often, for various reasons (voluntarily or out of necessity), employees go on leave without pay - without pay.
In this case, the dismissal procedure remains the same. The employee simply needs to write a statement in the appropriate format.
The employer is obliged to pay monetary compensation (if any) and give the employee his work book.
At the same time, it is necessary to remember that the employer does not have the right to dismiss an employee on his own initiative while he is on leave without pay.
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 delivery: 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 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, Labor Code does not contain restrictions.
If the employer is against it, the law defines several reasons for the immediate termination of the employment contract:
- the enterprise has 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 resign at maternity leave?
Legal reasons for dismissal on maternity leave:
- Liquidation of the enterprise. The enterprise is notified in advance about upcoming structural changes, and on the day of dismissal, the reasons for the staff reduction are entered in the work book column.
- 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 fire:
- 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, observing 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 .
When dismissing on the last day of voluntary leave, the question often arises of how the employment contract is terminated. To understand this and avoid misunderstandings with management, you should study the relevant articles of the Labor Code of the Russian Federation.
What does the legislation say?
Dismissal on the last day of vacation is possible only at the personal request of the employee; the manager cannot terminate the agreement with the subordinate on his own initiative.
Leaving an enterprise in this way occurs in 2 cases:
- the resignation letter was submitted before going on vacation;
- The employee submitted a request to resign already from vacation.
When a person quits immediately after the end of the vacation, the last day of work is considered to be the 14th day after the notification of intention to leave, which is the final day of rest.
Who cannot be given days off before terminating an employment contract?
In accordance with Article 127 of the Labor Code of the Russian Federation, not all subordinates can rest before terminating the employment agreement; these include the following persons:
- Seriously violated their duties.
- Having disciplinary sanctions.
- Those who have made serious mistakes when working with money or valuable documents.
If an employee is laid off, then after notification of this he has the right to take days off before leaving.
Contract termination procedure
The algorithm for terminating a contract will differ depending on when the application for leave is submitted: while already on it, or in advance with subsequent dismissal.
In addition, there are nuances if the vacation is provided in advance. The main difference lies in the procedure for final payment to the employee.
If a subordinate decides to rest before leaving
Example document
If leave is granted, for example, from August 1 to August 29, then the official day of dismissal will be the 29th, and the issuance of compensation and documents to the subordinate must be made on the final day when the person is present at the workplace.
Algorithm for terminating a contract:
- Providing subordinates with a statement of desire to terminate the agreement with the boss.
- Agreeing with the manager on the nuances of termination of work (if there are disagreements).
- Receipt of documents and all payments before the 1st day of vacation.
Even when the last working day is a day off, the manager is still obliged to terminate the employment contract with the employee on this date.
You cannot take 2 vacations at once before leaving. Additional days will be compensated when calculating dismissal payments.
For reference! For management positions, the deadline for applying for leave before termination labor relations equals 1 month.
If a person submits an application while already on vacation
A person who is already on vacation can also leave on the final day of vacation. In this case, the procedure for dismissal and calculation is as follows:
- Submitting an application in person to your boss or by mail.
- After receiving the dismissal order, the boss signs it.
- An order is issued to terminate the contract with the employee.
- A person receives the final payment.
If a subordinate submits a request for dismissal during the rest period, then the calculation will be made after 14 days of notice. That is, if a person submitted a document for leaving on March 1, then the countdown of 2 weeks will begin on the 2nd, and he will receive work papers and monetary compensation on March 15. In this case, it is important that at least 14 days of the required days off remain, otherwise after that the employee may be asked to stay at the workplace until the warning period expires.
Features of calculation if a person rests in advance
It happens that a person takes a vacation in advance, that is, according to the schedule, it is too early to give days off, but the boss provides them. If during this period the employee decides to resign of his own free will, then up to 20% of the amount for days not worked can be deducted from each compensation due to him. In this case, personal income tax must be deducted from each payment. But under certain circumstances, the employer does not have the right to deduct this percentage from the subordinate’s compensation. For example, if he is drafted into the army or the company is liquidated.
If the payment due to dismissal is less than the employee’s debt for vacation taken in advance, then the director may demand the required amount through the court or refuse to collect it.
Nuance! The director himself decides whether to provide unscheduled rest to a subordinate before he leaves the organization or not. This is the right, not the responsibility of the leader.
Is it possible to withdraw an application?
When leaving on the last day of vacation at his own request, the subordinate has the right to change his decision and remain at the enterprise.
In the following cases, a person can withdraw an application:
- before the start of the rest;
- until a new employee was invited to take his place.
If a person decides to stay in the organization while on vacation, he can try to withdraw his application, but the manager has the right to refuse him.
What compensation is required by law?
An employee is entitled to standard compensation upon termination of a contract at his own request:
- Calculation for actual time worked.
The criteria and amount of severance pay, if provided, are defined in employment contract or other provisions of the enterprise.
