General dismissal
Let us remind you that the general procedure for dismissal at the initiative of an employee is prescribed in Art.
Labor Code of the Russian Federation (LC RF). The employee must notify the manager in writing of his intention two weeks in advance. The countdown begins from the moment the employer receives the application. The last day of work is the date specified by the employee. If there is no date on the application, then 14 calendar days after submission of the application. On the last day of work, the organization is obliged to issue the employee a work book and, upon written request, other documents related to the work, as well as pay him wages for the last days, compensation for unused vacation and other amounts due by law.
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Time off according to the Labor Code of the Russian Federation
In the Labor Code there is no such wording “work for 2 weeks.” When leaving at his own request, the employee must WARN the employer 2 weeks in advance and that says it all... If you want pain for two weeks, if you want to take 2 weeks off, etc.
The amount of compensation for unused vacation and severance pay is calculated based on average earnings in accordance with: - Art.
Usually, with normal relations with management, problems should not arise and time off is provided without problems. It is important to write the application correctly.
The issue can be resolved differently if the expected day of departure falls on a holiday. The holiday period can last several days, as a result of which work is delayed. This situation is usually resolved by agreement of the parties. The employee, with his consent, can be fired earlier, that is, on a working day before the holidays.
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.
If there is no documentary evidence, then everything will depend on the integrity of the manager. The employee will definitely not have to count on payment, but the employer may allow the employer to take the days off required by law.
In this case, there is no need for an order for time off: the subordinate’s absence from the workplace has already been documented. Example of an order: an order for time off In a number of individual situations, overtime is the direct responsibility of the worker.
To formalize dismissal on a day off, the following algorithm of actions is usually used:
- A statement is written by the employee, which the employer must read;
- An order is issued by the employer, which is read by the employee against signature;
- A certificate from the accounting department is provided, in which the amount of compensation is calculated;
- Payments and documents upon dismissal are directly received.
L. was declared illegal by the court because it did not comply with Art. Art. 78, 80 of the Labor Code of the Russian Federation (Appeal ruling of the Moscow Regional Court dated July 1, 2013 in case No. 33-12747/2013). The day of dismissal is a day off for the employer. We looked at cases where the day of dismissal coincides with a day off for the employee. But it is also possible that this day will be a working day for the employee, and a day off for the employer. This is possible, for example, when working shifts or working according to a schedule.
If he is in no hurry, then you can give him these days and then fire him. Article 2 of the Labor Code of the Russian Federation establishes the right of every employee to timely and full payment of fair wages. According to Art. 140 of the Labor Code of the Russian Federation, upon termination of an employment contract, payment of all amounts due to the employee from the employer is made on the day of the employee’s dismissal.
In any case, time off can be used only by agreement with the employer, in writing, otherwise it may result in absenteeism.
One contact to the employer indicating both requests is sufficient. The employer himself must issue two orders and properly fill out the work book of the dismissed person. Issues related to labor during weekends and holidays are regulated by Article 153 of the Labor Code of the Russian Federation.
Application submitted before vacation
The right to use vacation before dismissal is provided for in Part 2 of Art. 127 Labor Code of the Russian Federation. And here several options for the development of the scenario are possible.
The first case is when the decision to quit has matured quite a long time ago. If the employer does not object, the employee writes an application for leave with subsequent dismissal.
Vacation pay, according to Art. 136 of the Labor Code of the Russian Federation, the accounting department accrues payments no later than three days before the start of the vacation, but the employee will receive the final payment and work book only on the last day before the vacation. The official moment of separation, recorded in the work book, will be considered the calendar date of the end of the vacation.
If the employee's leave is shorter than the notice period, the employer can accommodate and dismiss the employee before two weeks' notice. Otherwise, the employee has options: work first, and only then take off unused vacation days, or go on vacation, and then go to work for the remaining days. In the latter case, he will receive the final payment and work book as usual - on the last day of work.
It should be recalled that the employer is not obliged to provide leave followed by dismissal. In such a situation, allowing leave is the good will of the manager.
Application submitted while on vacation
It so happens that the decision to quit is made spontaneously. For example, during rest. The employee can submit the application in person, or can send it by mail with a certified letter with acknowledgment of receipt - the two-week period in this case is counted from the moment the manager receives the letter.
The dismissal of an employee on vacation should be formalized in the usual manner: issue an order, make an entry in the work book and make a settlement with the employee. The date of dismissal will be the day indicated in the application or the last day of the two-week notice period. There is no need to recall the employee from vacation.
If your vacation ends on a weekend, you must complete the paperwork and transfer the money on the previous working day.
Regardless of the form and time of notification to the employer, the work book must indicate clause 3, part 1, art. Labor Code of the Russian Federation.
If the day of dismissal falls on a weekend or holiday
Legal dismissal of an employee on a day off is possible in the following cases:
- expiration of the employment contract;
- at the citizen's own request;
- consistency between employee and management;
- a shift schedule in which the date of dismissal is the employee’s working day;
- reduction of the company's staff;
- issued sick leave or vacation.
In other cases, the procedure for terminating the employment relationship is formalized on the next working day.
Can an employee withdraw an application?
An employee may change his mind about quitting. In this case, he can withdraw his application at any time until he receives the order and work book. This right is provided for in Part 4 of Art. The Labor Code of the Russian Federation with one caveat: if the employer has invited another person in writing to replace a resigning employee, it is no longer possible to “change your mind.”
Please note: if an employee has written an application for leave with subsequent dismissal in advance, he will receive the documents and payment on the last working day, so he can refuse to terminate the contract strictly before the start of the leave.
Vacation, dismissal, length of service
Workers who have the right to preferential pensions: doctors, teachers, workers in hazardous industries, etc., often ask the question: how is leave followed by dismissal included in the length of service?
The period of annual paid leave, regardless of whether the employee plans to quit, is included in the length of service. During this period, the employee retains his position, average earnings, and insurance premiums are paid from vacation amounts. There are no restrictions on leave followed by dismissal in the Labor Code of the Russian Federation.
But to the question about vacation experience, HR experts do not have a single answer. Proponents of the decision not to include such a period of rest in the length of service for calculating annual compulsory leave argue their position as follows: if the leave is followed by dismissal, a new person can be invited to the employee’s workplace, and the employment relationship with the person leaving actually ends on the last day of work.
Experts who defend the opposite point of view refer to Art. 121 of the Labor Code of the Russian Federation, which states that the length of service giving the right to annual paid leave also includes those periods when the employee did not actually work, but he retained his job, including the time of annual paid leave. There are no clarifications about leave with dismissal in labor legislation. This position is also supported by the fact that the date of dismissal in the work book will be the last day of vacation.
What decision will be made regarding your employee largely depends on the opinion of the territorial branch of the Pension Fund of Russia. Your task is to prepare the documents correctly so that in a controversial situation the department does not have questions for you.
Provide the employee with time off on the last working day
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.
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.
It states that in a situation where the day the employee ends his work activity falls on a weekend or holiday, the date of dismissal must be considered the next working day. Cases where the employee did not actually perform his duties, but his job was retained, are an exception. Rostrud in Letter dated June 18, 2012 N 863-6-1 explained the following: “If an employment contract is terminated with an employee who has a shift work schedule, the date of termination of the employment contract is the date of the last working day, including those falling on a weekend or non-working holiday. In accordance with Art.
On the other hand, there is no direct prohibition of termination of employment on a non-working day in the labor code, but in practice this is possible in exceptional cases.
If the employee was previously paid for work on weekends in a single amount, then for all unused rest days the employer must pay the remaining difference between the double payment amount and the amount already paid. If an employer refuses to pay an employee for work on a day off voluntarily, the employee has the right to seek protection of his rights from the labor inspectorate or in court.
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 recalled from vacation, an order is issued indicating the reason for early return to work, the number and time of the remaining days of vacation. When leaving, it is better to take off the accumulated days, because...
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 written request from the employee, unused vacations may be granted to him with subsequent dismissal (except for cases of dismissal for guilty actions.
Note. Payments on the day of dismissal On the day of dismissal, the employer is obliged to make a full settlement with the employee and pay all amounts due to him, namely: - wages for the time actually worked in the month of dismissal; — compensation for all unused vacations; — severance pay in cases specified by law. The company and the employee have the right to terminate the employment relationship on any day, by agreement, while complying with the requirements of labor legislation.
