The dismissal procedure has always raised a lot of questions, despite well-designed legislative norms labor law. The fact is that dismissal is always associated with a specific situation, with emotional reactions (not always worthy), with different interpretations law of two opposing parties: the employee and the employer.
Vacation breaks are no exception. And although by law it doesn’t matter if you are on vacation or on a business trip, each employee has the right to leave work by notifying the employer 2 weeks in advance, however, the dismissal procedure is associated with a number of nuances.
Situation 1. Dismissal during an unworked vacation. Roughly calculated, every 2.5 months of work gives the right to 1 week of vacation (although the period depends on the length of the vacation, for example, for teachers it is not 28 days, but 42). If an employee went on vacation before the right to it appeared (took “in advance”), then he must work this time or return money to the organization for unworked hours (spent on vacation). The authorities may react inadequately to your dismissal during the holidays: they simply will not accept and issue it, they may require you to rewrite the application, setting other dates, motivating this by the fact that the employee is obliged to work.
What to do in this case? Do not rewrite the application, insist that they make a calculation with you, subtract unworked hours from your vacation pay, if you have not received them yet. If received, you can return it against receipt. When doing this, always remember that the employer has no right to keep you, no matter what.
Situation 2. Dismissal during vacation can become a problem if the director is also on vacation and has not left a person with the right to sign (deputy, other responsible person) in his place, and if there is no way to contact a higher manager (for example, the founder, if you an employee of an LLC or OJSC).
What to do? Use all possible methods to notify the employer: at least by phone. At the same time, the application can be sent by mail so that it arrives faster and the post office puts a mark on receipt (it's not your fault that the employer did not leave a deputy). If there is a person in the organization who registers incoming letters (even better if you can do it yourself), he must sign for receipt of your application.
Situation 3. While on vacation and making an unexpected decision to quit, you may leave unfinished business related to your duties. If you are an accountant and have to submit reports, or you have to take inventory - such cases make it difficult to quit during the holidays.
What to do? You will have to go to work during your vacation and complete unfinished business, for this you need a written order from the director to call you back from vacation due to a “production” need. This option is better than postponing a layoff.
Situation 4. You are leaving due to a transfer to another job.
To do this, you should write a letter of resignation in connection with the transfer to work in […] (indicate the organization). In it, indicate the last day of vacation as the date of dismissal. But in agreement with the employer, you can quit on the same day (for example, in the middle of a vacation) and receive compensation for unused vacation.
The manager may require you to work for 2 weeks after leaving the vacation. This requirement has no legal basis. The word "work" is not in labor code RF. No employee is required to work, he is only required to notify 2 weeks in advance. At the same time, it does not matter at all whether the dismissal occurs during the vacation period, or during the sick leave (on a business trip, at school - it does not matter). Your absence from work for a good reason does not oblige you to work. You don't even have to hand over cases to a new employee (unless you're taking leadership position, are a financially responsible person or an accountant).
These cases are the most common, but can be complicated by a number of other circumstances. Always try to negotiate with the employer. Notoriety and litigation none of you need. If it doesn't work, follow the law - dismissal own will during vacation is provided for in the Labor Code, in articles 77, 80.
Dismissal during vacationis one of the ways to terminate employment contract without processing. At the same time, the right to terminate employment relations during the vacation period own initiative any employee has. We will talk about the intricacies of this procedure and the rights of the parties below.
Can I quit my job while on vacation?
If you do not know whether it is possible to quit during the holidays, then we answer: of course, you can. At the same time, no employer has the right to limit an employee in his desire to submit an appropriate application and terminate labor Relations with him. But the employer can dismiss an employee on vacation only in a limited number of cases:
In all other situations, it is impossible to dismiss an employee during an employee's vacation against his will.
When is a letter of resignation written during a vacation of one's own free will?
When dismissing during a vacation of one's own free will, there are several options for notifying the employer of the impending termination of the employment contract. An employee can apply for dismissal at the same time as applying for a vacation, or he can send it while he is on vacation.
Let us clarify that the employer has the right to refuse to grant the employee leave with subsequent dismissal, since such an obligation is not assigned to him at the legislative level. Vacation under such conditions is exclusively the right of the head.
If you are planning a dismissal without leaving your vacation, the last day of your vacation will be considered the last day of your employment duties in the organization (of course, with the timely submission of the relevant application). Remember that after a vacation you should not go back to your previous place of work to receive documents, since settlements with the employee and the issuance of documents to him are provided for on the last day worked before going on vacation.
By this date, authorized specialists must have completed the following actions:
- Prepared an order to terminate the contract.
- AT work book relevant entries have been made (after which it must be handed over to the person leaving).
- A full calculation has been made.
It should also be noted that in addition to the calculation for the period actually worked, you are also paid vacation pay on a general basis. In case of partial use of leave, only the unused part of it is compensated simultaneously with the calculation.
If an employee wants to quit while already on vacation, he can come to the employer in person and write a corresponding application, or write it and then send this document by mail. It is important to note that it is better to send the application by registered mail with acknowledgment of receipt and a list of attachments, since in this case you will have proper evidence not only of the fact that the letter was sent, but also of which letter you sent, who received it and when.
It is also important to understand that if less than 14 days are left from the moment the employer receives the application until the end of your vacation, the remaining days will need to be worked out after the vacation (unless, of course, the employer meets you halfway and releases you without working off). The 2-week period begins to run from the date following the date the employer received the letter of resignation.
That is, in the general case, the date of dismissal of an employee will be considered the day the end of the 2-week period established for notification of dismissal, even if this day falls on a vacation period. On the day that is the last officially working day, the employer must give the employee his labor and make a full settlement with him.
Is it always possible to quit during the vacation period?
An employee who plans to terminate an employment relationship has the right to declare his dismissal during a vacation, regardless of what kind of vacation he is on. The procedure for dismissal in any case is similar to that described above.
By the way, dismissal is possible not only during vacation, but also during sick leave. In the latter case, it is carried out on the same grounds as dismissal while on vacation. The procedure for dismissal, the calculation of terms and the implementation of calculations in this case will be similar to those provided for dismissal during the vacation period.
Dismissal by agreement of the parties
The Labor Code does not pay too much attention to dismissal by agreement of the parties, limiting itself in Article 78 to the mention that termination of employment relations on such a basis is possible at any time, that is, including during the employee's vacation.
The dismissal initiative can come from both the employee and the employer - the law does not contain any restrictions on this. It also does not contain instructions regarding the form of such an initiative, that is, the initiating party has the right to send a written proposal to terminate the employment relationship to the other party or to express it orally.
Regarding the form of the dismissal agreement itself, the Labor Code also does not give any explanations, from which it can be concluded that an oral agreement on the date and conditions of dismissal has the same force as a written one. However, it is still recommended to draw up an agreement in writing, since the document obtained in this way will serve as evidence of the consent of both parties to terminate the employment relationship.
Dismissal by agreement of the parties, as well as dismissal for any other reason, is formalized by the relevant order of the employer. As a basis for issuing an order, the details of the agreement reached between the parties are usually indicated. This is another argument in favor of the fact that such an agreement is better to be in writing.
As for the need to obtain a letter of resignation from an employee, since neither the Labor Code nor any other regulatory act indicates the application as binding document required to terminate the employment contract, we can conclude that its absence will not affect the legality of the dismissal procedure.
However, this statement can be considered fully fair only if the parties have drawn up and signed a written agreement. If there is none in writing, the employee’s statement and the dismissal order issued on its basis will serve as proof that the parties have reached an appropriate agreement.
This position is also confirmed by judicial practice, in particular, it is reflected in the appeal rulings of the Moscow City Court dated March 18, 2016 in case No. 33-9523 / 2016 and the St. Petersburg City Court dated March 29, 2016 in case No. In both cases, the courts considered the agreement on the date, grounds and conditions of dismissal reached, despite the absence of a written agreement. As evidence of reaching an agreement, the statements of employees and the dismissal orders issued on their basis were accepted.
Thus, the obligatory written document for registration of dismissal by agreement of the parties is only the corresponding order. But in order to avoid disputes about the legality of terminating the employment contract, it is recommended to conclude a written agreement between the parties or submit a written application from the employee.
Let's summarize. The procedure for dismissing an employee on vacation is no different from the procedure for terminating employment in other circumstances. Legislative restrictions apply only to the grounds for dismissal - during an employee's vacation, it is possible only in 3 cases: at the request of the employee, by agreement of the parties, or with the complete liquidation of the enterprise.
Employment, transfers, vacations, dismissal are an integral, clearly regulated part of the labor relationship between an employee and an organization (individual entrepreneur).
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However, there are many subtleties and nuances. For example, dismissal on vacation very often raises questions from both sides of the labor process.
The Labor Code is a kind of social guarantor, which does not provide for the possibility of dismissing an employee during his vacation at the sole request of the employer.
In addition, Article 81 of the Labor Code expressly prohibits this, while dividing exceptions for some cases.
Grounds for dismissal
Of your own accord
The dismissal of an employee who has made such a decision on his own is possible regardless of whether he is on vacation.
The main requirement imposed by Article 80 of the Labor Code of the Russian Federation is to warn your employer without fail writing not later than 14 days.
In addition, according to the same article, this period may not be observed by agreement of the parties.
Example 1: Leaving a week before the end of the vacation.
Annual paid leave of 28 days for the accountant of Luchik LLC Petrova M.A. started June 30, 2019 But July 8, 2019 Maria Alexandrovna decided to leave the organization due to the fact that she was offered a job at another enterprise with the best conditions labor. She warned her boss about this in writing, writing a statement in which she indicated the date of dismissal on 07/23/15.
Result. According to the Labor Code, the director issued an order to dismiss the employee, even though her annual leave should end on 07/27/2015. In the work book of Petrova M.A. The dismissal was recorded on July 23, 2019.
At the initiative of the employer
During the period of annual or other leave, dismissal initiated by the employer, according to Article 81 of the Labor Code, is permissible in the following cases:
- company liquidation;
- final termination of the IP.
Other situations provided for in this article, in which the contract can be terminated, do not apply to dismissal during vacation.
Example 2: change of ownership in an enterprise.
Barkovskaya E.Yu., Deputy CEO Solntsevo LLC, went on vacation for three weeks from June 15, 2019. During this period, namely on June 22, 2015, the organization had a change of founders. It was decided to dismiss Evgenia Yuryevna on the basis of paragraph 4 of Article 81 of the Labor Code of the Russian Federation in connection with the change of ownership of the organization's property.
As a result, the contract was terminated after the deputy head came out of vacation. Therefore, the last working day in the organization was 07/06/2015, and not 06/22/2015, when the decision was made.
Registration of dismissal
The documents
Very often they ask themselves the question of how to quit during the holidays.
If the employee himself decides this, then you just need to write a letter of resignation in advance, passing it to the head or to personnel service organizations.
If the form of this document is not established in the organization by local acts, then it is allowed to draw it up in free form, but adhering to the standard business rules:
- In the upper right corner, the surname, name, patronymic and position of the head in whose name the application is being made are indicated.
- In the center is the word "statement".
- Then the wording “I ask you to fire me of your own free will” and the number are written a little lower. You don't need to use the preposition "with". It is written, for example, "July 2", and not "since July 2". This is necessary so that confusion is not created, since the day of dismissal is considered the last working day.
- Below is the signature, its transcript and date.
An application form can be downloaded here:
On the basis of a duly executed application, the manager draws up an order (instruction) on dismissal (termination of the employment contract) and passes it to the employee so that he can familiarize himself with it.
Sample letter of resignation If the enterprise is liquidated, then the dismissal of the employee during the vacation is carried out at the request of the employer on the basis of paragraph 1 of Article 81 of the Labor Code of the Russian Federation.
In such a situation, the employee does not write a statement, but the administration is obliged to notify him of the upcoming liquidation of the company.
The ordering is identical.
You can download the dismissal order form (T-8 form) here:
Timing
The application is made two weeks before the date of dismissal.
This is a requirement of the Labor Code, which respects the interests of not only all employees, but also their employers. In two weeks, there is an opportunity to select a candidate for a position that will be vacated.
If during this time the employee who wrote the application changes his mind, then it can be withdrawn without consequences.
The period for notifying an employee by an employer in the event of liquidation of an organization is two months. ca.
Thus, if an employee on vacation is notified in a timely manner, the manager has the right to issue a dismissal order.
There is no need to wait for the employee to return from vacation.
Do you need to work out?
In a situation where the letter of resignation is written in a timely manner and this period falls on vacation days, working off is not required.
Do I need to recall the employee on the day he brought the application?
Recall from vacation is not made, since the purpose of the recall is work in connection with production needs.
Features of calculating payments
Calculation algorithm
The final settlement with an employee who leaves, including during vacation, must be made on the last day.
Compensation for unused vacation is calculated exactly the same as regular vacation pay:
- The average (average daily) salary is calculated. For this, the employee’s income is formed, which includes wages for 12 months without “average” payments (that is, business trips, sick leave, vacations). Premiums are accounted for pro rata. For example, in February Ivanov S.B. a bonus for the working year 2019 in the amount of 120,000 rubles was accrued. The dismissal takes place in July 2019, which means that the settlement period is from July 2019. to June 2019 Thus, only 60,000 are included in the income for calculating compensation, since 120,000/12 * 6 = 60,000 rubles.
- In the event of a salary increase, income is indexed by a coefficient (K), which is the ratio of the new salary to the old one. Let's go back to our example. Salary of Ivanov S.B. in 2019 it was 50,000 rubles, and from 01/01/2015. - 60,000 rubles. So K=50000/60000=1.2. Thus, when calculating the accrual income from July to December 2019. multiplied by 1.2.
- The number of days worked is calculated. The standard number is taken as the basis - 29.3. This applies to full months worked. If any of the months is not fully worked out, then the calculation is carried out according to the formula: 29.3 / number of days in a month (28, 30 or 31) * number calendar days working period.
- Further, all calculated income is divided by the number of calculated days.. This is the average wage for 1 day.
- Compensation for unused vacation is calculated. To do this, the average wage for 1 day is multiplied by the number of vacation days that were not used.
Payment types
- Compensation for unused vacation provided for by the Labor Code of the Russian Federation.
- severance pay provided collective agreement, as well as any other local act.
- Salary, that is, payment for those days worked of the month in which the dismissal is made.
If vacation is granted in advance
Is it possible to quit when the vacation was granted in advance? The answer to this question is, of course, positive.
Simply in this case, upon dismissal, the amount of payments is reduced by adjusting the amount of overused vacation.
The number of days provided in advance is not difficult to calculate.
Example 3:
Smirnov A.V. worked at LLC "Tsvetochek" for 6 months from January 01, 2019 to June 30, 2019 He was granted leave from 07/01/2015. to 28.07.2015 But on July 4, Alexander Vladimirovich decided to quit. He wrote a letter of resignation on 07/18/2015.
So, let's take it in order:
- For the period of work from January 01 to July 18, Smirnov A.V. 16.31 vacation days are required.
- Vacation pay is calculated for 28 days. This means that 11.69 days was overpaid.
- The amount of overpaid vacation pay can be returned to the cash desk of the enterprise or, at the request of the employee, deducted from wages.
Frequently asked Questions
Can they be fired on maternity leave?
On the initiative of the employer, on the basis of Article 81, dismissal is impossible, with the exception of paragraph 1 (upon the liquidation of the enterprise or the completion of the activities of the individual entrepreneur).
This means that young mothers who are wondering if they can be fired during maternity leave should not worry.
Can I apply during study leave?
During the time, the employee can write an application for termination of the employment contract (dismissal).
Has your employee made the decision to quit while on vacation? Then you need to properly draw up the documents and complete all the calculations with it. Our colleagues from the Salary magazine tell how to do this.
The Labor Code prohibits the dismissal of employees during their stay on vacation if the employer is the initiator of the termination of the employment contract (part 6 of article 81 of the Labor Code of the Russian Federation). An exception is the liquidation of an organization or the termination of activities by an individual entrepreneur.
If the employee himself expressed a desire to quit during the holidays, then labor legislation does not establish any restrictions. In this case, it is important that the employee complies with the deadlines for filing a letter of resignation, and the employer - the procedure for conducting the dismissal procedure.
Notice period for dismissal
The employee has the right to terminate by notifying the employer in writing no later than two weeks in advance. This procedure is established in part 1 of article 80 of the Labor Code of the Russian Federation. This time is necessary for the employer to search for a new employee for an opening vacancy.
Often in practice, the concept of “warn” is replaced by “work out”. Although even the very concept of “working before dismissal” does not exist in the Labor Code. We are talking about the deadline for filing a letter of resignation - no later than two weeks.
An exception to general rule there are cases when further continuation of work is impossible and the employee needs to quit on a certain day. This may be admission to educational institution, retirement and other cases when the employer is obliged to terminate the employment contract within the period specified in the employee's application (part 3 of article 80 of the Labor Code of the Russian Federation).
If an employee decides to leave the company for more early term without good reason, then this is possible only by agreement with the employer.
Is it possible to fire a person on vacation at the initiative of the employer or the employee himself? What are the nuances here? In this regard, the Russian legislation clearly states that the employer cannot terminate the employment relationship with the employee during this period, so the employee has nothing to fear. This rule applies not only to the main vacation, but also maternity and additional. It should be borne in mind that the employee himself can quit at any time, having prepared all Required documents.
Dismissing an employee
According to the Labor Code of the Russian Federation, an employer cannot fire a person during a vacation. This can be done only after he comes out of this vacation. Even such reasons as unsuitability or violation of discipline cannot be used here. However, there are reasons why you can still fire an employee:
- A written agreement was reached between the two parties (employee and employer). By agreement, the enterprise and the employee are ready to terminate the employment contract without any claims to each other;
- The enterprise where the person worked completely stopped its activities or went bankrupt.
- The employee himself decided to apply for his resignation.
An employee has the right to quit at any time, regardless of when the vacation began and when it ends. It does not take into account the stage at which his work is and whether it is finished. The employer does not have the right to refuse dismissal under any circumstances if the procedure is carried out correctly and all the necessary documents are prepared. In the event that there are any unresolved issues between the parties, the case may be referred to the court. Such cases happen very often if an employee has not fulfilled his financial obligations and after his departure, for example, a shortage was discovered.
If the enterprise is closed for any reason, then the dismissal can be made only upon prior warning. Employees must receive at least one calendar month's notice to this effect. The term can be reduced only if a compulsory bankruptcy procedure has been carried out, it must already be carried out at the time of notification. All these nuances are entered into the work book. However, this only happens if the company is completely liquidated, and not just transferred to another company. Sometimes it happens that unscrupulous employers simply deceive their employees.
Read also The procedure and features of the division of vacation into parts
Voluntary dismissal
As it has already become clear, it is impossible to dismiss an employee who is on vacation, but the employee himself can quit at his own request at any time. Dismissal of an employee at his own request is possible if:
- The person wrote the statement while already on vacation. You can do this both on the first day of your vacation, and on the last. There are no restrictions in the Labor Code of the Russian Federation;
- The employee asked for leave and immediately brought his letter of resignation, that is, he did it at the same time.
It should be borne in mind that the dismissal procedures are slightly different in these two situations. If the application is signed already on vacation, then in some cases the employee may no longer go to work. After the rest is over, you must receive a signed order and wages.
Important! If the vacation lasts more than a month, then you will not have to return to work. If the vacation, for example, lasts a week, then you will need to work another week, because according to the law, you must notify about your departure 14 days in advance.
An employee can ask his employer for leave and fire him immediately. In this situation, the day of termination of the contract will be considered not when the vacation ended, but when it began. That is, it is this date that is recorded in the work book and it is on this day that the employee is paid wages.
Maternity leave
Many women worry that they may lose their jobs during maternity leave, because no one wants to look for new job with a small child. There is no need to panic here, as the law protects the woman in this case. The dismissal of an employee is possible only at his own request, but not at the initiative of the employer. A woman can write an application herself during her maternity leave and no longer go to work. In some cases, employers take advantage of this and try to force an employee to quit. Sometimes such situations reach the courts.
In order to quit during maternity leave, you must reach a written agreement with the company where the employee works, or send your letter of resignation to the employer by mail. It is also worth noting here that being on maternity leave completely frees the employee from the need to work out the prescribed two-week period.
Read also Order correct calculation start date of maternity leave
Submission of documents
If a person decides to quit his job during his vacation, he needs to know some of the nuances. The resignation letter is sent to the physical address of the firm. Sometimes it happens that the actual address of the enterprise and the physical do not match. To be safe, you should send a letter in duplicate to each address, then it will definitely reach where you need it. You should also make sure that the employee receives a report that the letter was received. In this way, you can avoid deception, because the employer can say that he simply did not receive anything.
By the way, the employer does not have to sign the application at all. You only need to stamp the date on the employee instance. This is done without fail, because the period of 14 days is counted from that very date. If it is not affixed, then this action can be considered as a violation of the Labor Code of the Russian Federation. This nuance must be taken especially carefully.
The labor code clearly states that an employee can terminate the contract with the company in which he works at any time, and the employer cannot refuse him. The only condition is that you need to give two weeks notice of your departure. Under no circumstances can an employer keep an employee at work. He must give him all the labor documents, as well as the wages due without any delay.
Do not be afraid that you will be denied dismissal when you are on vacation. This is the legal right of any employee, and is controlled by the labor code of the Russian Federation.
Dismissal without work
In some cases, the employer may release the employee from working off, which is equal to 14 days. It is possible that the two parties will simply agree with each other, but there are also nuances that are spelled out directly in the labor code. The two-week working off is canceled in the following cases:
- Retirement;
- Admissions to study at a university, technical school or college;
- Violations of the employment contract by the enterprise.
If there was a violation, then it must be confirmed through the court or after the examination of a special inspection. It is not considered a violation that the employee simply does not agree with the decision of his superiors. Some cases, by the way, are considered in individually. Sometimes you can count on early dismissal due to the illness of close relatives or an urgent move to another city.