Getting fired while on vacation is a fairly common prospect in practice. Moreover, both at the request of the employee and at the initiative of the employer. In any case, the boss must have a good understanding of exactly how this process proceeds. Otherwise, the dismissal may never take place. In any case, if the procedure for terminating labor relations is violated, an employee who does not agree with this is able to complain to the labor protection inspectorate. And then you will have to restore the subordinate among the workers. What is the correct way to fire while on vacation? What does the employer and employees need to know about this process?
Legality
The first point is that dismissal while on vacation is not prohibited by law. Not always. The point is that the Labor Code of the Russian Federation does not allow bosses to simply break off labor relations with subordinates during the period of legal rest. This is simply a violation of the rules established in Russia. It turns out that the dismissal is not always legal. It will be so if:
- the employee himself decided to quit while on vacation;
- the company is liquidated;
- by mutual agreement between the parties.
Decree and childcare
It is also worth paying attention to the fact that there are several types of legal rest from work. Particular attention is paid to maternity leave and parental leave. Why? The point is that dismissal during the vacation period in these cases is impossible. The termination of a previously concluded agreement with the employer takes place only upon liquidation of the enterprise. Therefore, a woman on maternity leave or caring for a baby cannot be removed from work obligations. Moreover, calling her to work is also prohibited. You will only have to pay the required benefits. They often bring losses to the company. It is for this reason that employers are not too fond of messing with pregnant women.
Without working off
Being fired of your own accord while on vacation is, as already mentioned, a fairly common prospect. It is used by citizens legally. But why exactly during the period of legal rest? According to the rules established in Russia, each subordinate is obliged to notify the employer in advance about his intentions to break off labor relations. Next, you need to work out 2 weeks. Only then is the order of dismissal issued. At the same time, citizens use a rather interesting technique - breaking off labor relations during the period of legal rest. Then, as a rule, working off is not needed. The main thing is to write a letter of resignation while on vacation. Or rather, before the rest. It doesn't matter what kind of break we are talking about - annual or at your own expense. The main thing is that working off is not required.
Dismissal procedure
What is the procedure for terminating labor relations in this case? Everything is pretty easy and simple. There are no significant features. Dismissal during vacation should proceed according to the following principles:
- Before the rest, the employee writes a statement of the established form. The employer reads the requirement. The boss has no right to prohibit vacation. If you take a vacation at your own expense, then several statements are drawn up.
- The subordinate goes on vacation. 14 days after receiving the application, the employer issues a dismissal order. It is required to familiarize a subordinate with it.
- After the vacation, the employee must come to the company and receive a work book, as well as a calculation. Money for hours worked should be received as soon as possible. The calculation takes 1 day.
- As soon as the work book is taken away and the funds are issued, the subordinate puts his signature in special accounting journals. This is necessary to confirm the calculation and issuance of labor. This will end the dismissal for the employee during the vacation.
- The employer draws up an act of dismissal, completes the subordinate's personal file and sends it to the archive.
The general rule is that an employer, on his own initiative, cannot dismiss an employee on vacation (Article 81 of the Labor Code of the Russian Federation). However, if the employee himself wrote the application for dismissal during the vacation period of his own free will, then there are no prohibitions on terminating the employment contract.
At the same time, in the general procedure, the employee must notify the employer of his dismissal no later than 2 weeks, which will be counted from the day following the day the application is received by the employer (Article 80 of the Labor Code of the Russian Federation). Accordingly, if the employee sends an application by mail, then when determining his last working day, the days spent on postage will be added to the working period.
The procedure for dismissal on vacation of their own free will
If an employee wrote a letter of resignation during a vacation of his own free will, then the days of his vacation will probably fall into 2 weeks of work. At the same time, the period of working off for vacation days is not extended (Letter from Rostrud dated 05.09.2006 N 1551-6). Accordingly, it may turn out that on the last day of working off the employee will still be on vacation. But for the employer, this does not change anything: it will be necessary to formalize the dismissal of the employee on this last day of work, without waiting for the end of the employee's vacation. That is, you will need to issue a dismissal order, make an entry in the work book and pay all the amounts due to him (Article 84.1 of the Labor Code of the Russian Federation).
While on vacation, the employee may not show up on the last day of work. And if the payments can be simply transferred to him on a bank card, then it will not work to transfer the work book. In such a situation, you can send a registered letter to the employee by mail notifying him of the need to come to the organization for a work book.
Vacation followed by dismissal
If your employee wrote an application for it, this is a different situation. The day of his dismissal will be the last day of the vacation. However, you will need to give him a work book and pay off with him on the last day of work before vacation.
The prohibition for the employer to fire workers on vacation is provided for in part 6 of Art. 81 of the Labor Code of the Russian Federation. It does not work only in two cases: when the organization is liquidated, and also if the individual entrepreneur, for whom the citizen works, has decided to terminate his activity (clause 1, part 1 of article 81).
Is it possible to quit on your own while on vacation?
This issue is discussed in detail in Art. 80 of the Labor Code of the Russian Federation. An employee has the right to submit an application for dismissal to the employer of his own free will while on vacation. This must be done two weeks before its estimated date. If the manager does not object, if necessary, this period can be shortened (for example, if a citizen has found a new job and wants to start it as soon as possible). The countdown begins the next day after the head of the application signs. Two weeks later, the citizen will already be considered dismissed from the organization. Read about how to follow the procedure in the article. The employee's book must be entered with an indication of the reason.
The employee can also send the application to the manager by mail, by registered mail. After receiving it, it is certified and attached to the employee's personal file. In this case, the notice period for termination of the employment contract will start later. In some cases, this may be inconvenient for the resigning person (for example, if he wants to find a job as soon as possible in a new job).
Should management be warned about dismissal after vacation?
According to Art. 127 of the Labor Code of the Russian Federation, an employee has the right to go on vacation with subsequent dismissal of his own free will. Previously, he must notify the employer of his decision to leave the organization. During this time, the head of the organization will have the opportunity to find a suitable employee to replace the departing one. In this case, a letter of resignation is written immediately after the vacation of his own free will, which a person can walk off completely. In this case, the last day of the provided rest will be considered the last day of work.
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Hello! Today we will talk about the dismissal of an employee / employee during the vacation period, we will tell you the procedure for dismissal, the calculation of payments and analyze several situations: at your own request, at the initiative of the employer, and if you take a vacation at your own expense.
Dismissal during vacation at the initiative of the employer
The Labor Code of the Russian Federation prohibits the dismissal of an employee at the initiative of the employer if the employee is on vacation. An exception is dismissal by written agreement of the parties or as a result of the liquidation of the company.
The ban on the dismissal of an employee during vacation applies to all groups of citizens: those working on a fixed-term and perpetual contract. Maternity and study leave are also zealously protected by law, and it is strictly forbidden to fire employees who are on leave. We have already written an article about
If the expiration of the term of the temporary employee's contract fell on vacation, then he can be dismissed in the usual way, and this will not come as a surprise to him, because the term was spelled out in the contract with the employer. In such a situation, he does not need to be called from vacation, the date of dismissal will be shifted to the last vacation day.
If you take a vacation "at your own expense"
Unpaid leave is either annual, due to beneficiaries (for example, retirees), and extraordinary, at the request of the employee.
An administrative unpaid leave for five days is granted to citizens in cases of weddings, childbirth, death of close relatives. Such leave is allowed for any employee on each occasion, the total annual amount is not limited (for example, an employee can go on vacation if he is married, and then another five days after the birth of a child). An employee cannot be dismissed during such a vacation, but he has the right to apply on his own initiative.
When an employee goes unauthorized on unpaid leave and does not warn the manager about this (which is equivalent to absenteeism), he can be fired at the initiative of the employer. Or if the vacationer is late on vacation, the manager has every right to get rid of the "truant". He is obliged to notify the dismissed about this 14 days in advance. If the employee does not return to the workplace and does not sign the resignation order, all documents are sent to him by mail. It is always better to send such documents with an acknowledgment of receipt, so that there is evidence not only of sending the letter, but also of its receipt.
Dismissal while on vacation
An employee has the right to resign on his own initiative at any time he wants, including during vacation. According to the law, no restrictions are imposed on it. As in the case of voluntary dismissal during working hours, the employee must notify the employer and submit the application 14 days before the expected date of dismissal. This period can be reduced by agreement of all parties.
It is not necessary to hand over the letter of resignation during the vacation personally to the manager. Even if a vacationer is far from the workplace, he can send his application by parcel post, the employer has no right to reject it. However, it should be borne in mind that the beginning of the two-week "work" is the day following the date of receipt of the application by the employer.
Without two weeks' work, an employee can be fired due to retirement, admission to study, moving abroad, or violation of the law by the company.
The procedure for issuing a dismissal during vacation - 5 steps
Step 1: The employee submits a letter of resignation of his own free will. Here, too, there are two options: he can present it to the manager personally at the workplace, or, if this is not possible, send it by letter.
Step 2: On the basis of the application, the head forms a dismissal order, which contains the full name of the person. employee, position held by him and the reason for dismissal. The order is issued in duplicate and signed by both parties. If the dismissed person cannot put his signature on the document, an act is drawn up with the signatures of at least two witnesses.
Step 3: If the vacation was granted and paid "in advance" (for the year not yet worked), and the employee leaves before its end, then the duration of the vacation changes, and accordingly the amount of vacation pay, the surplus of which the employer has the right to withhold, changes. The original leave order is canceled with a note and a new one is formed.
Step 4: On the day of dismissal, the former employee is issued a work book with a corresponding mark and calculation. In the case when the application was written in advance, and with the permission of the employer, the citizen went on vacation without the expected return to the workplace, then the calculation and issuance of all documents is made before the start of the vacation, on the last working day. The delay in the calculation gives the employee the right to go to court in order to receive interest.
Step 5: At the request of the dismissed, he may be additionally issued with income certificates (2 personal income tax).
Calculation and payments upon dismissal during vacation
An employee dismissed of his own free will during vacation is entitled to the following payments:
- Salary for all days worked prior to vacation.
- If there are unused vacation days, then compensation for them.
- Severance pay, which is paid in the event and in the amount provided for by the employment contract.
If an employee quit during the vacation period, and as a result, vacation pay was recalculated, then according to Part 2 of Article 137 of the Labor Code of the Russian Federation, the employer can (at his own discretion) withhold vacation pay paid in excess of the new calculation from the employee. He has the right to withhold no more than 20% of the amount paid (taking into account the deduction of personal income tax). In situations where all payments have already been made, there is nothing to make a deduction from, then it is permissible to sue the former employee with a claim for collection. It is forbidden to make deductions if the employee was dismissed for the reason:
- the absence in the company of another vacancy required by the employee on a medical prescription, or the employee's refusal from the proposed transfer;
- liquidation of the company;
- staff reductions;
- conscription for military and alternative civilian service;
- reinstatement of a previous employee in his position (for example, such reinstatement is possible by a court decision);
- obstacles to labor relations, emergencies (natural disasters, epidemics and others).
Articles of the Labor Code of the Russian Federation on issues of dismissal during vacation
- Article 81 - it is possible to dismiss an employee on vacation only as a result of the liquidation of the company.
- Part 2 of Art. 125 - it is forbidden to call an employee from vacation in order to fire him.
- Part 1 of Art. 80 - the employee must report his intention to quit 14 days in advance.
- Part 3 of Art. 80 - an employee can quit while on vacation without further returning to work for a number of reasons (for example, retirement, starting school, etc.)
- Part 4 of article 80 - if the dismissed person who wrote the application and went on vacation intends to revoke his decision, but a new employee has already been invited to his workplace, it is no longer possible to stop the dismissal.
- Part 5 of Article 137 - when an employee who has worked for less than six months and went on vacation "in advance" leaves on vacation, "undeserved" vacation pay will be deducted from his calculation.
The Labor Code provides officially employed individuals with many ways to terminate contracts with an employer.
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Moreover, in most cases, it is the rights of employees that are protected, but not the employer. It is because of the poet that the employee can quit right during the vacation of his own free will.
Is it possible
If an officially employed employee decided for some reason to quit of his own free will right during the vacation, then the implementation of this action will not be considered illegal.
The Labor Code, as well as other regulatory documents, do not contain articles that make it impossible to terminate an employment contract during a vacation by a process illegal.
But it is worth remembering that this kind of procedure has a large number of different nuances. The most important of these are the following:
- to complete the application, interrupt the vacation, it is not required to make a call from it;
- it is imperative to comply with the application deadline.
A special situation is the provision of vacation in advance. Registration of this kind of leave in debt is possible on the basis of current legislation.
It is not required to observe any proportion between the length of vacation time and the amount of time worked. This moment is covered in the most detailed way in the letter of Rostrud dated 06.23.06.
If an employee is on vacation, there is simply no need to suspend it. It will be enough to draw up the application accordingly and transfer it to the personnel department.
In this case, again, it is not necessary to do it personally. It will be necessary to send the application itself by registered mail with a list of attachments to the employer's address.
The work book itself can also be obtained by mail - you just need to indicate this moment in the application for dismissal.
A very important nuance, which must always be remembered, is the obligation to comply with the deadlines for submitting the relevant application.
According to the current legislation, it is mandatory to notify your employer about dismissal 2 weeks in advance.
But if the employee who wrote the application for the next 14 days is on sick leave, on vacation, then this period cannot be increased.
If during the entire two-week period the employee is on vacation, then he may not return to his workplace.
If the vacation ends earlier than this period, then the obligation arises to work out this period. But this moment always remains at the discretion of the employer himself.
The timing
The terms during which the employee is obliged to warn his employer about dismissal are indicated in the Labor Code of the Russian Federation.
In fact, the duration of the dismissal process can be this entire period. Moreover, the countdown begins from the day when the employee submitted a properly executed application to the personnel department.
But at the same time, the term for dismissal of their own free will during vacation can be significantly reduced.
If the employer does not want to go to a meeting with his employee and carry out the dismissal process in one day, then you should refer to the Labor Code.
It provides for cases when the employer is obliged to carry out the dismissal procedure by the date of application (it is important that it be a working day).
The list of such situations includes the following:
- the employee was enrolled by a student in an educational institution;
- the employer has violated labor laws in any way;
- it is required to care for a disabled person of group I;
- retirement.
If there is a desire to quit at your own request, but the vacation ends before the expiration of the two-week period, then you can not work out the remaining period of time on the basis of the above reasons.
Especially often this method of dismissal is used by various elderly people - they specially take a vacation in such a way that they immediately retire after it.
Order
The procedure for dismissing an employee of his own free will is extremely simple.
It includes the following main stages:
- an employee writing an application in the appropriate form;
- the formation of a special order on - it is signed by the head or another official who has the right to do so;
- the accountant calculates the company's debt to the employee, or vice versa - after that the funds are transferred to the account;
- the employee takes the work book.
When writing a letter of resignation of your own free will, there is no need to follow any particular format.
The human resources employee should arrange the termination process accordingly. Its task is as follows:
- preparation of an order in the form of T-8, transferring it to the director, his deputy or other authorized person for signature;
- making an appropriate entry in the work book.
The second point is especially important. The employee should check as carefully as possible - what kind of wording was recorded in the work book.
Since sometimes, but still it happens that the leadership, out of a desire to harm, prescribes there some impartial article as a reason for dismissal - absenteeism or otherwise. With such a record, subsequently, it will be extremely problematic to find a job.
Of course, this is a very serious violation of the current legislation. But until now, some employers practice such "revenge".
The work book should contain the following entry in the case under consideration: "Fired at his own request on the basis of the Labor Code of the Russian Federation."
If, for some reason, the recording sounds different, then this should immediately go to court. Since the employer in this way seriously violates the legislation in force in the territory of the Russian Federation.
Also, a serious violation of the current legislation is the failure to return the work book on time.
How to write a statement
Writing a letter of resignation is the simplest step in this process. It is compiled in free form. Can be handwritten or printed on a PC.
But without fail must contain the following information:
- in the upper right corner:
- name of company;
- surname, name and patronymic of the director or acting director;
- the text of the statement itself:
- A briefly formulated request for dismissal with reasons (optional);
- desired date of dismissal;
- in the lower part:
- Date of preparation;
- applicant's signature;
- place for the signature of the head of the personnel department;
- place for the signature of the director / acting.
If the employee has any doubts about the honesty of the employer, then it is imperative to require a mark on the acceptance of this document by the HR department.
Or simply send this document by registered mail with a list of attachments. Since there are frequent precedents when an employee of the personnel department simply throws the submitted application into the trash bin.
In this case, it will be extremely problematic to prove the rightness in court, since there will simply be no confirmation of the submission of the application to the personnel department.
Dismissal of your own free will during vacation without work
There is a fairly long list of ways to avoid working on dismissal. But some of them are quite difficult to realize. The easiest way is to go on vacation and write a letter of resignation on time, when the vacation has not yet ended.
But sometimes, for some reason, it is simply impossible to implement such a scheme. In this case, the best solution is to compromise with the employer.
Since, by agreement, the management of the enterprise can dismiss an employee in one day, in compliance with all legislative norms.
Often, for various reasons (voluntarily or out of necessity), employees go on leave without pay - without pay.
In this case, the procedure for dismissal remains the same. It is enough for the employee himself to write a statement in the appropriate format.
The employer is obliged to make the payment of monetary compensation (if any) and give the employee his work book.
At the same time, it must be remembered that the employer does not have the right to fire an employee on his own initiative while he is on leave without pay.