Article 127 of the Labor Code of the Russian Federation with comments and amendments for 2020-2021

Upon dismissal, the employee is paid monetary compensation for all unused vacations. Upon written request from the employee, unused vacations may be granted to him with subsequent dismissal (except for cases of dismissal for guilty actions). In this case, the day of dismissal is considered the last day of vacation. Upon dismissal due to the expiration of the employment contract, leave with subsequent dismissal may be granted even when the vacation time completely or partially extends beyond the term of this contract. In this case, the day of dismissal is also considered the last day of vacation.

When granting leave with subsequent dismissal upon termination of the employment contract at the initiative of the employee, this employee has the right to withdraw his resignation letter before the start date of the leave, unless another employee is invited to take his place by transfer.

Commentary on Article 127 of the Labor Code of the Russian Federation

1. When an employee is dismissed - regardless of the grounds for dismissal - he is paid monetary compensation for all unused vacations; When an employee enters a new place of work, the length of service required to obtain the right to annual paid leave begins to flow over again.

2. The amount of monetary compensation for unused vacation depends on the length of vacation to which the employee is entitled at the time of dismissal. For work for a full working year, the dismissed person is entitled to compensation based on the full duration of leave. If the length of service taken into account when granting leave is less than 12 months, compensation is paid proportional to the number of months worked. When calculating the amount of compensation, we proceed from the fact that for each month of work the employee acquires the right to vacation, amounting to 1/12 of the full vacation (see Article 139 of the Labor Code and the commentary thereto).

3. For deductions from wages to pay off debts for unworked vacation days, see Art. 137 Labor Code and commentary to it.

4. The Labor Code allows for the possibility of granting leave with subsequent dismissal for all persons working under an employment contract, including upon dismissal due to the expiration of the employment contract, when the vacation time completely or partially extends beyond the term of this contract. In case of granting leave with subsequent dismissal, compensation for unused leave is not paid, but a settlement is made with the employee with payment of average earnings for the days of leave.

To receive leave with subsequent dismissal, the unilateral expression of the will of the employee (his written statement) is not enough; the consent of the employer is also required. The employer, if possible, upon a written application from the employee, provides him with unused vacation with subsequent dismissal (Definitions of the Constitutional Court of the Russian Federation (hereinafter referred to as the Constitutional Court of the Russian Federation) dated February 5, 2004 N 29-O, dated November 17, 2009 N 1385-O-O) .

Receiving leave with subsequent dismissal is possible both in case of dismissal at the initiative of the employee, and in the case of dismissal at the initiative of the employer or due to circumstances beyond the will of the parties, as well as for other reasons.

Leave followed by dismissal cannot be granted to employees dismissed for guilty actions. This refers to dismissal as a disciplinary sanction (see Part 3 of Article 192 of the Labor Code and commentary thereto), as well as dismissal for other guilty actions (see Clause 11, Part 1 of Article 81, Clause 7.1 of Article 81 , clause 4, part 1, article 83, clause 2, article 336 of the Labor Code and commentary thereto). Guilty actions of an employee may also include the actions of an employee, even if not at the place of work and not in connection with the performance of work duties (see paragraphs 7, 8, part 1, article 81 of the Labor Code and commentary thereto).

In contrast to the general rule, when granting leave followed by dismissal to an employee whose employment contract is terminated on his initiative, the employee has the right to withdraw his resignation letter before the start of the leave, if another employee is not invited to take his place by way of transfer. In this case, we mean any employee, and not just those who cannot be refused employment.

Supreme Court of the Russian Federation: “fireproof” leave upon dismissal (determination dated February 17, 2020)

The Supreme Court of the Russian Federation again confirmed the “fireproof” nature of vacations upon dismissal (in this case we are talking about additional vacations, but they can also be applied to annual ones).
The employer claimed that the statute of limitations had expired in court, the courts agreed with him, the Supreme Court did not agree, citing the famous Resolution of the Constitutional Court of the Russian Federation of October 25, 2018 No. 38-P, which also considered almost the same issue.
The catch was in the different understanding of the beginning of the period, so read and remember, I hope you will never need it (2kk.info)

Determination of the Investigative Committee for civil cases of the Supreme Court of the Russian Federation dated February 17, 2021 N 53-KG19-17 (case No. 2-963/2019)

Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, consisting of

presiding Pchelintseva L.M.,

judges Gulyaeva G.A., Zhubrina M.A.

considered in open court on February 17, 2021 the cassation appeal of Vladimir Vladimirovich Shestakov against the decision of the Leninsky District Court of Krasnoyarsk dated January 22, 2021 and the appeal ruling of the judicial panel for civil cases of the Krasnoyarsk Regional Court dated March 25, 2021 in case No. 2 -963/2019 Leninsky District Court of Krasnoyarsk

on the Employee’s claim against the JSC for the recovery of compensation for unused vacation, compensation for moral damage.

Having heard the report of the judge of the Supreme Court of the Russian Federation G.A. Gulyaeva, having listened to the explanations of the representatives of the plaintiff Employee by proxy..., who supported the arguments of the cassation appeal,

Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation

INSTALLED:

On November 27, 2021, the plaintiff filed a lawsuit against the JSC to recover compensation for unused vacation and compensation for moral damage.

In support of the claims, the Plaintiff referred to the fact that in the period from December 4, 2007 to January 9, 2021, on the basis of an employment contract, he was in an employment relationship with the joint-stock company and worked as a track fitter at railway workshop No. 81.

In 2014, the commission of the joint-stock company for conducting a special assessment of working conditions carried out certification of the track fitter’s workplace in terms of working conditions, based on the results of which it was established that the assessment of the Employee’s working conditions in terms of harmful (hazardous) factors was 3.2, and therefore, from that time on, the Employee was provided with annual additional leave of 7 days before the date of termination of employment.

After termination of employment in 2021, the Claimant became aware that he was also entitled to additional annual leave in connection with work in hazardous working conditions from 2009 to 2013.

On May 29, 2021, the Plaintiff applied to the JSC for payment of compensation for unused additional annual leave in connection with work in hazardous working conditions for the period from 2009 to 2013.

By letter of the JSC dated June 7, 2021, the Plaintiff was denied payment of compensation for unused annual additional leave in connection with work in hazardous working conditions, indicating that before January 1, 2014, the establishment of additional leave for employees employed in hazardous working conditions was carried out on the basis of certification cards and the List of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and a reduced working day, approved by the Resolution of the State Committee of the USSR Council of Ministers on Labor and Wages and the Presidium of the All-Union Central Council of Professionals Unions dated October 25, 1974 N 298/P-22. The name of the profession of a railway shop track fitter was not included in the said List, and the right to grant additional annual leave in connection with work in hazardous working conditions at the workplace in the profession of a railway track fitter was established only from January 1, 2014 on the basis of the Federal Law of December 28 2013 N 426-FZ “On special assessment of working conditions” and Federal Law of December 28, 2013 N 421-FZ “On amendments to certain legislative acts of the Russian Federation in connection with the adoption of the Federal Law “On special assessment of working conditions” .

According to the Claimant, the JSC’s refusal to pay him compensation for unused additional annual leave in connection with work in hazardous working conditions for the period from 2009 to 2013 is illegal, since the right to provide him with such leave is confirmed by the position of the Constitutional Court of the Russian Federation, set out in the ruling dated February 7, 2013 N 135-O.

For the above reasons, the Plaintiff asked the court to recover from the JSC compensation for unused additional leave for work in hazardous working conditions lasting 35 calendar days for the period from 2009 to 2013 in the amount of 28,803.06 rubles, compensation for moral damage caused by the violation of his labor rights, in the amount of 50,000 rubles.

The defendant did not admit the claims and filed a petition to apply the consequences of the Plaintiff’s omission as provided for in part one of Article 392 of the Labor Code of the Russian Federation (as amended in force before the entry into force of Federal Law of July 3, 2021 No. 272-FZ on October 3, 2021). On amendments to certain legislative acts of the Russian Federation on the issues of increasing the liability of employers for violation of the law in terms of remuneration") a three-month period for filing a lawsuit in court in a dispute over the recovery in favor of an employee of compensation for unused vacation.

By the decision of the Leninsky District Court of Krasnoyarsk dated January 22, 2019, the Plaintiff’s claims against the JSC for compensation for unused vacation and compensation for moral damage were denied due to the plaintiff missing the deadline to go to court.

By the appeal ruling of the judicial panel for civil cases of the Krasnoyarsk Regional Court dated March 25, 2021, the decision of the trial court was left unchanged.

The Plaintiff’s cassation appeal filed with the Supreme Court of the Russian Federation raises the issue of transferring the complaint with the case for consideration at a court hearing of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation to cancel the decision of the Leninsky District Court of Krasnoyarsk dated January 22, 2021 and the appeal ruling of the court Collegium for Civil Cases of the Krasnoyarsk Regional Court dated March 25, 2021, as illegal.

Based on the results of studying the arguments of the cassation appeal on November 5, 2019 by the judge of the Supreme Court of the Russian Federation Gulyaeva G.A. the case was requested to the Supreme Court of the Russian Federation, and by its ruling dated January 9, 2021, the cassation appeal with the case was transferred for consideration at a court session of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation.

The representative of the defendant JSC, duly notified of the time and place of consideration of the case in cassation, did not appear at the court hearing of the cassation court, did not provide information about the reasons for the failure to appear, and therefore the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, guided by Part 4 Article 390 12 of the Civil Procedure Code of the Russian Federation, considers it possible to consider the case in his absence.

Having checked the case materials, discussed the arguments of the cassation appeal, and heard the explanations of the Plaintiff’s representatives by proxy, Pokrovskaya A.B., Kasatkina Yu.O., who appeared at the court hearing, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds the complaint to be satisfied.

The grounds for the judicial panel of the Supreme Court of the Russian Federation to cancel or amend judicial decisions in cassation are significant violations of substantive law and (or) procedural law that influenced the outcome of the case and without eliminating which it is impossible to restore and protect violated rights, freedoms and legitimate interests , as well as the protection of public interests protected by law (Article 390 14 of the Civil Procedure Code of the Russian Federation).

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation comes to the conclusion that when considering this case there are significant violations of the law of this nature committed by the courts of first and appellate instances, and they are expressed as follows.

The court established and it follows from the case materials that the Plaintiff, on the basis of an employment contract dated December 4, 2007 and an employment order dated December 4, 2007, was in an employment relationship with the joint-stock company, working as a 6th category track fitter in railway transport workshop No. 81.

According to the workplace certification card for working conditions, carried out in the joint-stock company in 2007, the assessment of the working conditions of a track fitter for harmful (hazardous) factors was 3.2, an additional payment to the tariff rate was established in the amount of 4%.

Clauses 4.2 and 5.2 of the employment contract dated December 4, 2007, concluded between the Plaintiff and the JSC, stipulated that his working conditions were harmful, and an additional payment for harmful working conditions was established in the amount of 4% of the tariff rate.

On December 31, 2013, an agreement was concluded between the Claimant and the JSC to the employment contract dated December 4, 2007, according to which, on the basis of Article 117 of the Labor Code of the Russian Federation, he was granted additional leave due to harmful working conditions (subclass 3.2) in the amount of 7 calendar days . The terms of the agreement came into force on January 1, 2014. A similar agreement was concluded with the Plaintiff on April 23, 2015.

By order of the JSC dated April 27, 2015, the Plaintiff, on the basis of his application, was transferred to a new place of work as a 6th grade track fitter in workshop No. 80 of the transport workshop of the JSC track service.

In accordance with the provisions of the Federal Law of December 28, 2013 N 426-FZ “On Special Assessment of Working Conditions” and the Federal Law of December 28, 2013 N 421-FZ “On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Adoption Federal Law “On Special Assessment of Working Conditions” On June 1, 2015, the JSC carried out certification of the track fitter’s workplace for working conditions. According to the card of special assessment of the working conditions of the employee (track fitter in workshop No. 80 of the track service), the assessment of the working conditions of the track fitter in terms of harmful (hazardous) factors is 3.2; the employee has the right to annual additional paid leave on the basis of Article 117 of the Labor Code of the Russian Federation. The Plaintiff was familiarized with the certification card on April 21, 2021.

By order of the JSC dated December 19, 2021, the employment contract with the Plaintiff was terminated and he was dismissed from the defendant’s organization from January 1, 2021 under paragraph 3 of part 1 of Article 77 of the Labor Code of the Russian Federation (at the initiative of the employee).

On May 29, 2021, the Plaintiff applied to the JSC for payment of compensation for unused annual additional leave in connection with work in hazardous working conditions for the period from 2009 to 2013 in the amount of 35 days.

On June 7, 2021, in a letter from the JSC, the Plaintiff was informed that until January 1, 2014, the provision of additional leave to employees engaged in hazardous working conditions was carried out on the basis of certification cards and the List of production facilities, workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and a reduced working day, approved by Resolution of the State Committee of the USSR Council of Ministers on Labor and Wages and the Presidium of the All-Union Central Council of Trade Unions dated October 25, 1974 N 298/P-22. The name of the profession of a railway shop track fitter was not included in the said List, and the right to grant additional annual leave in connection with work in hazardous working conditions at the workplace in the profession of a railway track fitter was established only from January 1, 2014 on the basis of the Federal Law of December 28 2013 N 426-FZ “On special assessment of working conditions” and Federal Law of December 28, 2013 N 421-FZ “On amendments to certain legislative acts of the Russian Federation in connection with the adoption of the Federal Law “On special assessment of working conditions” .

The Claimant’s repeated request for compensation for additional leave for work in hazardous working conditions was rejected by the JSC letter dated October 29, 2021 on similar grounds and was additionally indicated that he had missed the three-month period provided for in Part 1 of Article 392 of the Labor Code of the Russian Federation for the appeal to court to resolve an individual labor dispute.

Resolving the Plaintiff's claims against the JSC for the recovery of compensation for unused vacation, compensation for moral damage, the court of first instance took into account the defendant's application to apply to the Plaintiff's claims the period for applying to court to resolve an individual labor dispute, provided for in part one of Article 392 of the Labor Code of the Russian Federation (as amended before the Federal Law of July 3, 2021 No. 272-FZ came into force on October 3, 2021 “On amendments to certain legislative acts of the Russian Federation on issues of increasing the liability of employers for violation of the law in terms of payment labor"), came to the conclusion that the plaintiff, without good reason, missed the deadline for filing a lawsuit with the above-mentioned demands. At the same time, the court proceeded from the fact that the Plaintiff should have known about the violation of labor rights regarding the provision of additional paid leave in 2014 (from the moment the employer began providing additional paid leave for work in hazardous working conditions), since the plaintiff became familiar with the vacation schedules on time, pay slips, received vacation pay .

The court found unfounded the Plaintiff's arguments that the plaintiff became aware of a violation of his right to provide additional leave upon dismissal from the joint-stock company in 2021, with reference to the fact that the plaintiff had the opportunity to contact the employer on the issue of providing additional leave or calculating compensation for unused vacations from 2009 until the moment of dismissal, but until January 9, 2021, he did not apply to the employer with such demands, and did not provide evidence of valid reasons for the impossibility of such an application to the court.

The appellate court agreed with this conclusion of the court of first instance, additionally pointing out that the Plaintiff should have become aware of the alleged violation of the right to provide additional leave and compensation for unused additional leave from the moment of signing the additional agreement dated December 31, 2013 to the employment contract establishing additional leave in connection with work in hazardous working conditions, that is, from January 1, 2014, but the Plaintiff went to court with these demands only on November 27, 2021.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation cannot agree with the conclusions of the courts of first and appellate instances regarding the refusal to satisfy the Claimant's claims due to his missing the statutory deadline for filing a lawsuit to resolve an individual labor dispute due to the following.

Based on generally accepted principles and norms of international law and in accordance with the Constitution of the Russian Federation, the basic principles of legal regulation of labor relations and other relations directly related to them are recognized, in particular, to ensure the right of everyone to the state protection of their labor rights and freedoms, including judicial protection; ensuring the right to resolve individual and collective labor disputes (Article 2 of the Labor Code of the Russian Federation).

Article 381 of the Labor Code of the Russian Federation establishes that an individual labor dispute is an unresolved disagreement between an employer and an employee on the application of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, an agreement, a local regulatory act, an employment contract (including on the establishment or change of individual working conditions), which were reported to the body for the consideration of individual labor disputes. An individual labor dispute is a dispute between an employer and a person who previously had an employment relationship with this employer, as well as a person who has expressed a desire to conclude an employment contract with the employer, if the employer refuses to conclude such an agreement.

Individual labor disputes are considered by labor dispute commissions and courts (Article 382 of the Labor Code of the Russian Federation).

The deadline for an employee to go to court for resolution of an individual labor dispute is established by Article 392 of the Labor Code of the Russian Federation.

Part one of Article 392 of the Labor Code of the Russian Federation (as amended before the entry into force on October 3, 2021 of the Federal Law of July 3, 2021 N 272-FZ “On amendments to certain legislative acts of the Russian Federation on issues of increasing the responsibility of employers for violation of the law in terms of remuneration"), it was provided that the employee has the right to apply to the court for resolution of an individual labor dispute within three months from the day when he learned or should have learned about the violation of his rights, and in disputes about dismissal - within one month from the date of delivery of a copy of the dismissal order or from the date of issue of the work book.

Federal Law of July 3, 2021 N 272-FZ “On amendments to certain legislative acts of the Russian Federation on increasing the liability of employers for violations of the law regarding remuneration”, which came into force on October 3, 2021, Article 392 The Labor Code of the Russian Federation has been supplemented with a new part two as follows: “For the resolution of an individual labor dispute regarding non-payment or incomplete payment of wages and other payments due to the employee, he has the right to go to court within one year from the date of the established deadline for payment of the specified amounts , in including in case of non-payment or incomplete payment of wages and other payments due to the employee upon dismissal.”

If, for good reason, the deadlines established by parts 1, 2 and 3 of Article 392 of the Labor Code of the Russian Federation are missed, they can be restored by the court (Part 4 of Article 392 of the Labor Code of the Russian Federation).

In accordance with part one of Article 116 of the Labor Code of the Russian Federation, annual additional paid leave is provided to employees engaged in work with harmful and (or) dangerous working conditions, employees with a special nature of work, employees with irregular working hours, employees working in the extreme regions of the Russian Federation. North and equivalent areas, as well as in other cases provided for by this Code and other federal laws.

Annual additional paid leave is provided to employees whose working conditions at their workplaces, based on the results of a special assessment of working conditions, are classified as harmful working conditions of the 2nd, 3rd or 4th degree or hazardous working conditions (Part 1 of Article 117 of the Labor Code of the Russian Federation).

Part three of Article 126 of the Labor Code of the Russian Federation establishes that it is not permitted to replace annual basic paid leave and annual additional paid leave with monetary compensation, in particular for employees engaged in work with harmful and (or) dangerous working conditions, for work in appropriate conditions ( with the exception of payment of monetary compensation for unused vacation upon dismissal, as well as cases established by this Code).

According to part one of Article 127 of the Labor Code of the Russian Federation, upon dismissal, the employee is paid monetary compensation for all unused vacations.

From the above legal regulation of relations regarding the payment of monetary compensation to employees for unused vacation upon dismissal, it follows that the payment of monetary compensation for all unused vacations serves as a special guarantee that ensures that in a special way the right to rest is exercised by those employees who terminate their employment at their own request, on the initiative of the employer or for other reasons and for various reasons have not previously taken advantage of their right to be granted annual paid leave.

The provisions of part one of Article 127 and part one of Article 392 of the Labor Code of the Russian Federation were the subject of consideration by the Constitutional Court of the Russian Federation.

The Constitutional Court of the Russian Federation in its resolution of October 25, 2021 N 38-P “In the case of verifying the constitutionality of part one of Article 127 and part one of Article 392 of the Labor Code of the Russian Federation in connection with complaints from citizens M.V. Danilova, K.V. Kondakov and others" recognized the first part of Article 127 and the first part of Article 392 of the Labor Code of the Russian Federation as not contradicting the Constitution of the Russian Federation, since the provisions contained therein - in their constitutional and legal meaning in the system of current legal regulation - do not limit the employee’s right to receive upon dismissal monetary compensation for all unused vacations and, if this compensation was not paid by the employer directly upon dismissal, do not deprive the employee of the right to recover it in court, regardless of the time that has passed since the end of the working year for which this or that unused vacation should have been provided (in whole or in part) leave, subject to going to court with the relevant demands within the period established by law, calculated from the moment of termination of the employment contract.

According to the legal position of the Constitutional Court of the Russian Federation, expressed in the said resolution, the court, when establishing, during the consideration of an individual labor dispute regarding the payment of monetary compensation to an employee for unused vacation, the grounds for satisfying the stated requirements, must assess the entire set of circumstances of a particular case, including the reasons why the employee did not take advantage of his right to annual paid leave in a timely manner, the presence or absence of a violation of this right on the part of the employer, the specifics of the employee’s legal status, his place and role in the labor management mechanism of a particular employer, the possibility of abuse of influence on the documentation of decisions to provide the employee with annual paid leave vacation, and the actual use of vacations that were not formally granted to him in the prescribed manner.

Based on the norms of part one of Article 127 and part two of Article 392 of the Labor Code of the Russian Federation in their systemic relationship and the position of the Constitutional Court of the Russian Federation, in the event of failure by the employer to pay the employee monetary compensation for all unused vacations upon dismissal, the employee is not deprived of the right to recover the corresponding monetary amounts of compensation in court, regardless of the time that has passed since the end of the period for which the employee’s unused vacation should have been provided, provided that the employee’s appeal to the court took place within the limits established from October 3, 2021 by part two of Article 392 of the Labor Code of the Russian Federation a one-year period calculated from the moment of termination of the employment relationship with the employer.

The above regulatory provisions were applied incorrectly by the courts of first and appellate instances to disputed relations.

Refusing to satisfy the Plaintiff's claims against the JSC for the recovery of compensation for unused vacation, compensation for moral damage due to the plaintiff missing the deadline for filing such a claim in court, the courts came to the conclusion that the moment the period for filing a lawsuit begins is the beginning of the provision the plaintiff, from January 1, 2014, received additional paid leave from the employer for work in hazardous working conditions.

Meanwhile, this conclusion of the courts was made without taking into account the circumstances established in the case and contradicts the legal regulation of determining the beginning of the period within which the employee has the right to go to court in a dispute about payment to him upon dismissal of monetary compensation for all unused vacations.

In the present case, taking into account the Plaintiff’s claims for recovery of compensation for unused vacation, the defendant’s objections to them and the rules of substantive law to be applied, the court should have established whether the plaintiff had applied to the court with these demands within the limits established by part two of Article 392 of the Russian Labor Code Federation for a one-year period, which was to be calculated from the moment of termination of the employment contract concluded between the Claimant and the JSC.

However, the circumstances associated with the moment of termination of the employment relationship between the Plaintiff and the JSC were not determined by the courts as legally significant when deciding whether the plaintiff missed the deadline for filing a lawsuit, while these circumstances, due to the above legal regulation of payment relations monetary compensation for employees for unused vacation upon dismissal are important for the court to determine the date of the beginning of the period for the Plaintiff to file a claim against the defendant to recover compensation for unused vacation.

Thus, the conclusion of the courts of first and appellate instances to refuse to satisfy the Plaintiff’s claims for the recovery of compensation for unused vacation, compensation for moral damage on the grounds that the plaintiff missed the three-month period for filing a lawsuit with the above requirements does not correspond to the applicable norms of law, was made without legally establishing significant circumstances and, therefore, is unlawful.

In connection with the above, the decision of the first instance court and the appeal ruling of the appellate court, which left it unchanged, cannot be considered legal. They were adopted with significant violations of the norms of substantive and procedural law that influenced the outcome of the case; without their elimination, it is impossible to protect the violated rights and legitimate interests of the applicant, which, according to Article 390 14 of the Code of Civil Procedure of the Russian Federation, is the basis for canceling the appealed court decisions and sending the case for a new trial to the court first instance.

When reconsidering the case, the court should resolve the Claimant’s stated claims in accordance with the rules of substantive law that apply to the resulting relations, the requirements of civil procedural legislation and the circumstances established in the case.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, guided by Articles 390 14, 390 15, 390 16 of the Civil Procedure Code of the Russian Federation,

determined:

the decision of the Leninsky District Court of Krasnoyarsk dated January 22, 2019 and the appeal ruling of the judicial panel for civil cases of the Krasnoyarsk Regional Court dated March 25, 2021 in case No. 2-963/2019 of the Leninsky District Court of Krasnoyarsk are cancelled.

The case will be sent for a new trial to the court of first instance - Leninsky District Court of Krasnoyarsk.

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Another commentary on Article 127 of the Labor Code of the Russian Federation

The employee must be given the opportunity to exercise the right to leave. Upon dismissal, the employee is paid monetary compensation in accordance with the commented article in all cases, regardless of the basis for dismissal and for all unused vacations up to the day of dismissal.

At the request of the employee, instead of compensation for unused vacation, he may be given vacation in kind followed by dismissal (except for cases of dismissal for guilty actions). In this case, the day of dismissal is considered the last day of vacation. This date is entered in the work book as the date of dismissal.

If an employee is dismissed due to the expiration of the employment contract, then leave followed by dismissal may be granted on the condition that the vacation time completely or partially extends beyond the term of this contract. In this case, the day of dismissal is also considered the last day of vacation, which is entered in the work book as the date of dismissal.

If unused leave with subsequent dismissal is granted to an employee upon termination of the employment contract at the initiative of the employee, he has the right to withdraw his resignation letter, provided that this leave has not yet begun, i.e. before the start of the vacation, and another employee has not been invited to take his place by way of transfer.

Providing leave with subsequent dismissal

Drawing up an order on the basis of which the employee is granted rest with subsequent termination of the employment contract is stipulated in Art. 127 Labor Code of the Russian Federation.

What it is? Before dismissal, the employee takes off all unused vacation days, receiving payment for them. As soon as the vacation ends, the employment relationship ends along with it. Before the start of the vacation, the employee receives both vacation pay and dismissal pay; the dismissal order is issued on the pre-vacation day, but the date of termination of the contract is listed as the last day of the annual vacation.

There is a legal condition that states that taking leave with subsequent dismissal is excluded if a specialist is fired for illegal actions. Allotted days before termination of employment are given only to conscientious and disciplined employees.

The list of events, upon the occurrence of which it is impossible to choose leave in exchange for material compensation, is indicated in Art. 81 of the Labor Code of the Russian Federation (failure to perform labor functions without good reason, absenteeism, disclosure of state secrets, immoral behavior).

The clause fixing the worker’s right to rest followed by dismissal is described in Art. 127 of the Labor Code of the Russian Federation, where the wording “may be provided” is used. This phrase means that the employer has no obligation to provide the subordinate with rest before dismissal.

The manager has the right to refuse even a conscientious employee and pay compensation for unused days in return for leave or provide only part of the due period (and pay for the remaining days). Explanations about this situation were provided by Rostrud (letter No. 5277 6-1 dated December 24, 2007).

An employee may attempt to take advantage of vacation time before looking for a new job only by agreement with the director of the company.

Order processing time

When taking leave with further termination of the employment contract, the date of termination is the last day of rest. This type of vacation can be used even if a fixed-term employment contract has been signed with the employee, and its validity period has expired during the vacation period.

Article 127 of the Labor Code indicates that this vacation is issued on the basis of a written request from the employee; the day of dismissal is considered the last day of vacation.

All settlements with the specialist are made before he goes on vacation, since upon expiration of the contract, labor obligations between the parties cease. On the last working day, a work book is issued; the end of the employment relationship actually occurs on the first day of rest.

If an employee went on vacation with subsequent dismissal and changed his mind, he will be able to return to work only with the consent of the manager.

How to issue an order?

The first step is to send a statement from the employee to the manager. Often, 2 separate orders are issued: for leave with subsequent dismissal and for termination of employment at one’s own request.

An order for leave followed by dismissal is not a widely used document. The document is used mainly in companies with a small staff; it combines 2 complex activities, where the same specialist appears.

In large companies, 2 separate orders are issued: for dismissal, a form in the T-8 form; for vacation, in the T-6 form.

When combining orders, the following information is indicated in the text:

name of the enterprise;
date and place of document preparation;
Title of the document;
the reason for registration is the employee’s statement;
order to terminate the contract under Art. 77 clause 3 indicating the date of dismissal (last day of vacation), make a full payment (salary, other payments, fill out the necessary documents in connection with the termination of the employment contract (work book, personal card).

The document is signed by the head of the company, familiarization signatures are affixed by all employees indicated in the text of the order.

If one order is issued: