Is the last day of work paid upon dismissal?
Labor relations are terminated according to the general rules established by Art.
84.1 of the Labor Code of the Russian Federation, taking into account the specifics of the legislation for some cases (termination of a fixed-term contract, preservation of a job for a non-working employee, etc.). The same norm contains an answer to the question of whether the day an employee is dismissed from his position is considered a working day.
Based on Part 3 of Art. 84.1 day of dismissal is the last working day. However, there are exceptions, which we will discuss below.
On the last working day, the employer is obliged to complete all procedures provided for by the Labor Code of the Russian Federation (including handing over a work book). This day is paid in full as a working day.
What document should be issued if an employee chooses an electronic format for maintaining a work record instead of a paper one? The answer to this question is in ConsultantPlus. Get free demo access to K+ and get tips from the experts.
The date of dismissal is determined:
- expiration date of the fixed-term employment contract;
- the expiration of the two-week period allotted for working out when filing an application on the initiative of the employee;
- on the day of issuance of the dismissal order upon termination of employment relations at the initiative of the organization;
- the day of expiration of the notice period for staff reduction established by labor legislation;
- the date on which the parties to the employment relationship agreed to terminate it.
Is it possible to change the date of dismissal?
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As a general rule, the date of dismissal from office cannot be changed. It shifts only taking into account holidays or weekends. The parties can agree on a specific date of dismissal only if they formalize the termination of the contract by agreement of the parties.
Thus, the dismissal date is determined as follows: it always falls on a weekday. The exception is situations when an employee cannot go to work for valid reasons. The HR department should carefully check whether the dismissal date falls on a working day or a weekend to avoid violations of the law, resulting in fines and lawsuits.
In what cases can an employee be fired if he is absent from the workplace?
The day of dismissal is considered a working day, but not always. Situations may arise when an employee does not work for various reasons, but he must be dismissed regardless of his presence in the workplace. Worker:
- is absent from the workplace because he is a participant in collective bargaining;
- in accordance with a medical report, cannot continue to perform work duties;
- is on vacation, previously wrote a statement of his own free will, and at the end of the work period the vacation has not yet ended;
- at the time of dismissal due to liquidation of the organization or staff reduction, is on parental leave;
- participates in a strike on the day of dismissal;
- is a member of the election commission.
See also “Dismissal by agreement of the parties on sick leave”.
Is it necessary to work on the day of dismissal?
Since the last day of dismissal is considered a working day, the employee must work it. Usually at this time the cases are completed and transferred, the calculation and work book are issued.
This is also important to know:
Dismissal before retirement age - Labor Code of 2021: responsibility when initiated by the employer
The employer has the right to release the citizen early if he has time to transfer all his affairs.
What date should be indicated in the employee’s resignation letter and in the dismissal order?
On the day of dismissal of the employee, an order is issued in form No. T-8 or another, if the organization does not use unified forms. However, the date in the order does not always coincide with the day of dismissal.
If the initiator of dismissal is the employer, then the order indicates the employee’s last working day when he went to work.
In addition, the order may contain a date for future dismissal, i.e., the day on which the employee will receive payment and be dismissed is determined. In this case, the date of issue of the order precedes the date of dismissal. However, if the grounds for dismissal for some reason no longer exist, for example, the employee withdrew his application, then the order will have to be canceled.
If an employee resigns of his own free will, he can indicate in the application any date outside the two-week period of work, regardless of what day of the week it falls on. In this case, the day of dismissal in the order will indicate the day following the last day of work.
If an employee is dismissed by agreement of the parties, the order indicates the date reflected in the agreement on termination of the employment contract.
How to correctly calculate compensation upon dismissal in 2021, read here.
Dismissal at your own request
According to the Labor Code, an employee who wishes to terminate an employment contract must notify the employer at least 2 weeks in advance (Article 80 of the Labor Code of the Russian Federation). Thus, from the moment the application is written to the actual dismissal, 14 days usually pass. In this regard, questions arise:
- what date and how exactly to write in the resignation letter;
- from what date should the period of so-called working off be counted?
When a person writes a statement about terminating an employment contract at his own request, it is usually required to indicate the last working day.
The law is not clear on the exact wording, but it is recommended not to use the preposition "with". It is advisable that the phrase read “I ask you to fire me of your own free will on January 20,” and not “from January 20.” The latter option allows for double interpretation, confuses the personnel officer and may raise questions among inspectors. The interval between filing an application and dismissal is counted in calendar days. In this case, the reference date is not the date when the application was written, but the next day. For example, if an employee wrote a statement on December 1, then the last working day will be December 15. It does not matter how many weekends and holidays there are during this period. However, if this date falls on a non-working day, then the dismissal is formalized on the next working day. Thus, if December 15 falls on a Sunday, then the work book will contain an entry dated December 16 (Article 14 of the Labor Code of the Russian Federation).
Article 14 of the Labor Code of the Russian Federation - Calculation of deadlines
The period of time with which this Code relates the emergence of labor rights and obligations begins from the calendar date that determines the beginning of the occurrence of these rights and obligations.
The period of time with which this Code relates to the termination of labor rights and obligations begins the next day after the calendar date that determines the end of the employment relationship. Terms calculated in years, months, weeks expire on the corresponding date of the last year, month or week of the term. The period calculated in calendar weeks or days also includes non-working days.
If the last day of the period falls on a non-working day, then the end of the period is considered to be the next working day following it.
Expert commentary
Kamensky Yuri
Lawyer
This rule only applies if a person works on a standard 5/2 schedule. If he works in shifts, then the date of dismissal will in any case coincide with the last working day, even if it falls on a holiday or calendar day off (Rostrud Letter dated 06/18/12). On the same day, it is required to issue the employee a work book and salary, including all benefits and compensation. If necessary, the head of the organization brings an accountant and a personnel officer to work so that they formalize the dismissal. In return, they are provided with compensation provided for by the Labor Code (double pay or an additional day of rest).
Questions
When is final payment due?
Full payment is made to the employee at the time of leaving work. He is given a work book, the requested documents, and is also paid wages for the time worked. Additionally, compensation is provided for unused vacation.
When laid off, the employee receives severance pay and payments for 2-3 months. If a citizen is absent from the workplace, the payment is issued the next day or upon his first request.
What happens if you violate the terms of payment upon dismissal?
It happens that companies violate deadlines and do not make payments on the day of dismissal. In case of absenteeism of an employee, the company is not subject to punishment, since the employer’s actions are not at fault.
This is also important to know:
Dismissal under an article for failure to fulfill official duties: instructions and legal obligations
For violation of the final payment deadlines, the organization will be punished in accordance with administrative legislation. The fine amount is from 1,000 rubles. up to 50,000 rub. The employee also has the right to file a civil lawsuit to recover penalties. It is 1/150 of the refinancing rate of the Central Bank of the Russian Federation. For a delay in issuing a work book, the company will pay compensation in the amount of average earnings for the entire period of delay.
How to write a resignation letter?
The resignation letter is written in any form. It is advisable to calculate the moment of termination of the contract so that it coincides with weekdays. It is recommended to specifically state the date of dismissal without the preposition “from”: “I ask you to dismiss at your own request on January 25, 2019.”
Is it possible to find a compromise with an employee if the day of dismissal falls on a weekend?
It happens that dismissal must be formalized on a weekend or holiday. The employee may be against moving the date of termination of the employment contract forward. Especially if he has agreed on employment at a new place of work.
In such a situation, it is possible to terminate the employment relationship by agreement of the parties by agreeing on a more convenient day. In this case, the employee will no longer be able to withdraw his resignation letter of his own free will, but he does not have to work for 2 weeks.
What is an employee required to do during the working period?
If an employee resigns voluntarily, he must perform his job duties for another two weeks. Work begins the next day after submitting documents to the employer. The working hours do not change; the employee has the right to days off. Also at this time he may get sick or go on vacation.
The following have the right to leave without work:
- pensioners;
- pregnant women;
- adoptive parents of minors under 14 years of age;
- persons admitted to an educational institution for full-time study;
- employees subject to disciplinary liability;
- workers moving to another region or abroad;
- citizens caring for a disabled person or a child under 14 years of age.
So, the parties have the right to agree on dismissal without work. In addition, there is a special category of persons who are not required to work. They have the right to leave the employer at first request.
What to do if you are fired with violations
Based on existing judicial practice, employees often apply for reinstatement at work due to the termination of their employment relationship on a weekend or holiday, or due to facts of non-payment of amounts due to them on the day of termination of the working relationship or failure to issue documents.
Thus, employees who were reduced in size filed a claim to have their dismissal declared illegal because the date after the expiration of the two-month notice period fell on a weekend. But the court did not find a violation, since labor legislation does not contain such restrictions (Appeal ruling of the Moscow City Court dated November 20, 2012 in case No. 11-21106/12).
It is necessary to establish whether the day of dismissal is considered a working day or not, since this affects the issuance of the final payment and documents. By virtue of Article 140 of the Labor Code, if a person did not work on that day, then the corresponding amounts are paid no later than the next day after the employee submits a request for payment.
And some employers interpret this in such a way that if an employee is absent from the organization on the day of dismissal and if he does not show up to receive funds, then they have the right not to pay them until he makes a written request for payment. However, this position is incorrect, since the obligation to make payments on time rests with the employer. In addition, the law does not contain an obligation to submit settlement requests in writing. Accordingly, for late payment of amounts due, the employer will have to pay appropriate compensation.
Can they be fired on vacation, on sick leave or during a business trip?
The question often arises: can one be fired on sick leave? An employer does not have the right to terminate an employment relationship on its own initiative with a person on sick leave. In this situation, the date of termination will be the first working day after the closure of the temporary disability certificate. However, the employee himself has the right to resign at his own request while he is on sick leave.
The law establishes the right of an employee to take the remainder of his vacation and then leave work. When submitting such an application, the time of termination of the employment contract will be considered the employee’s last day of rest.
As for the period of being on a business trip, the person retains his job and is provided with all the guarantees associated with the termination of the employment relationship, while both parties to the contract can be the initiator.
