Being fired while on vacation is a prospect that comes up quite often 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 not take place. In any case, if the procedure for terminating labor relations is violated, an employee who disagrees with this is able to complain to the labor protection inspectorate. And then you have to restore the subordinate among the workers. How to get fired while on vacation? What do employers and employees need to know about this process?
legality
The first point is that dismissal during vacation is not prohibited by law. Just not always. The thing 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 far from always dismissal is legal. It will be so if:
- the employee himself decided to quit during the 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 labor activity. Special attention are given maternity leave and parental leave. Why? The thing is that dismissal during the vacation period in these cases is impossible. 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 her employment obligations. Moreover, it is also forbidden to call her to work. You will only have to pay the required benefits. Often they bring losses to the enterprise. It is for this reason that employers are not too fond of messing with pregnant women.
Without working out
Dismissal by own will during the holidays - this, as already mentioned, is a fairly common prospect. It is used by citizens legal grounds. 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 of his intentions to terminate the employment relationship. Then you need to work 2 weeks. Only then is a dismissal order issued. At the same time, citizens use a rather interesting trick - breaking up labor relations during the period of legal rest. Then, as a rule, processing is not needed. The main thing is to write a letter of resignation during the holidays. Or rather, before the holidays. It doesn't matter what kind of break in question- on an annual basis or at your own expense. The main thing is that there is no need for processing.
Dismissal procedure
What is the procedure for terminating the employment relationship in this case? Everything is pretty easy and simple. None essential features no. Dismissal during vacation should proceed according to the following principles:
- Before rest, an employee writes a statement of the established form. The employer is aware of the requirement. The boss has no right to prohibit vacation. If you take a vacation at your own expense, then several statements are made.
- The employee goes on vacation. 14 days after receiving the application, the employer issues a dismissal order. It is required to familiarize the subordinate with it.
- After the vacation, the employee must come to the company and receive a work book, as well as a calculation. Payment for hours worked must be received in as soon as possible. 1 day is given for the calculation.
- As soon as the work book is taken away, and cash issued, the subordinate puts his signature in special registers. This is necessary to confirm the calculation and issuance of labor. On this, for the employee, the dismissal during the vacation will be over.
- The employer draws up an act of dismissal, completes the personal file of the subordinate and sends it to the archive.
The general rule is that the employer, on its own initiative, cannot dismiss an employee who is on vacation (Article 81 of the Labor Code of the Russian Federation). However, if the employee himself wrote a letter of resignation during the vacation period of his own free will, then there are no prohibitions on termination employment contract no.
At the same time, in general, 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 employer received the application (Article 80 of the Labor Code of the Russian Federation). Accordingly, if an employee sends an application by mail, then when determining his last working day, the days spent on forwarding will be added to the working period.
The procedure for dismissal on leave of one's 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 working off. At the same time, the working period for vacation days not extended (Letter of Rostrud dated 05.09.2006 N 1551-6). Accordingly, it may turn out that on the last day of working out the employee will still be on vacation. But for the employer, this does not change anything: it will be necessary to issue the dismissal of the employee on this last day of working, 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).
Being on vacation, the employee may not appear on the last day of work. And if payments can be simply transferred to his 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 with a notification of the need to come to the organization for a work book.
Leave followed by dismissal
If your employee wrote an application for - this is a different situation. The day of his dismissal will be the last day of vacation. However, it will be necessary to issue him a work book and pay him off on the last day of work before the vacation.
The prohibition for the employer to dismiss employees who are 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: during the liquidation of the organization, and also if the individual entrepreneur, for whom the citizen works, decided to stop his activities (clause 1, part 1, article 81).
Is it possible to voluntarily dismiss while on vacation?
This issue is discussed in detail in Art. 80 of the Labor Code of the Russian Federation. The employee has the right to submit to the employer an application for dismissal of his own free will during the vacation. This must be done two weeks before its expected date. If the head does not object, if necessary, this period can be reduced (for example, if a citizen has found new job and wants to get started as soon as possible. The countdown begins the next day after the head of the application is signed. Two weeks later, the citizen will already be considered dismissed from the organization. Read the article on how to follow the procedure. It must be entered in the employee's book indicating the reason.
The employee can also send the application to the manager by mail, by registered mail. Upon receipt, it is certified and filed with the employee's personal file. In this case, the notice period for terminating the employment contract will begin later. In some cases, this may be inconvenient for the person leaving (for example, if he wants to find a new job as soon as possible).
Is it necessary to warn management about dismissal after a 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. He must first 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 a vacation of one's own free will, which a person can take off completely. In this case, the last day of work will be considered the last day of the provided rest.
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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 we will analyze several situations: at your own request, at the initiative of the employer, and if you take the 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 under a fixed-term and open-ended contract. Decree and study leave are also zealously protected by law, and it is strictly forbidden to dismiss employees located in them. We have already written an article about
If the expiration of the contract of a temporary employee fell on vacation, then he can be dismissed in the usual way, and this will not come as a surprise to him, because the period was prescribed in the contract with the employer. In such a situation, he does not need to be called from rest, the date of dismissal will move to the last vacation day.
If the vacation is taken "at your own expense"
Leave without saving wages it can be both annual, due to beneficiaries (for example, pensioners), and extraordinary, at the request of an employee.
Administrative unpaid leave for five days is granted to citizens in cases of marriage, the birth of a child, the death of close relatives. Such leave is due to any employee on each occasion, the total annual number 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 file on his own initiative.
When an employee goes on unauthorized unpaid leave and does not warn the manager about it (which is equivalent to absenteeism), he can be dismissed 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 person 14 days in advance. If the employee does not return to workplace, and does not sign the dismissal order, all documents are sent to him by mail. It is always better to send such documents with acknowledgment of receipt, so that there is evidence not only of sending the letter, but also of receiving it.
Voluntary dismissal during vacation
The employee has the right, on his own initiative, to quit at any time he wants, including during the holidays. According to the law, no restrictions are imposed on it. As in the case of voluntary dismissal in work time, warn the employer and the employee must submit an application 14 days before the expected date of dismissal. This period may be reduced by agreement of all parties.
It is not necessary to transfer the application for dismissal during the vacation personally to the head. Even if the vacationer is far from the workplace, he can send his application by parcel post, the employer does not have the right to reject it. However, it is worth considering that the beginning of the two-week “working off” is considered the day following the date the employer received the application.
Without a two-week working period, an employee may be fired due to retirement, enrollment, moving abroad, or violation of the law by the company.
The procedure for filing a dismissal during a vacation - 5 steps
Step 1: An employee submits a voluntary resignation letter. 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: Based on the application, the head generates a dismissal order, which contains the full name. the employee, his position and the reason for dismissal. The order is issued in duplicate and signed by both parties. If the dismissed person cannot put his signature under 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 a year not yet worked out), and the employee leaves before it ends, then the duration of the vacation changes, and the amount of vacation pay changes accordingly, the excess of which the employer has the right to withhold. The original leave order is canceled by a note, and a new one is formed.
Step 4: On the day of dismissal former employee a work book is issued with the appropriate 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 carried out before the start of the vacation, on the last working day. The delay in settlement gives the employee the right to apply to the court in order to receive interest.
Step 5: At the request of the dismissed person, additional income certificates (2 personal income tax) may be issued to him.
Calculation and payments upon dismissal during vacation
An employee who is dismissed at his own request during a vacation is entitled to the following payments:
- Salary for all days worked before vacation.
- If there are unused vacation days, then compensation for them.
- Severance pay, which is paid in the case and in the amount as provided for by the employment contract.
If an employee quit during the vacation period, and as a result, vacation pay was recalculated, then in accordance with Part 2 of Article 137 of the Labor Code of the Russian Federation, the employer can (at its own discretion) withhold vacation pay from the employee paid in excess of the new calculation. He has the right to withhold no more than 20% of the amount paid (including the deduction of personal income tax). In situations where all payments have already been made, there is nothing to deduct from, then former employee may be sued for recovery. It is forbidden to make deductions if the employee was dismissed due to:
- 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;
- company liquidation;
- layoffs;
- 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 labor relations emergencies ( natural disasters, epidemic, etc.).
Articles of the Labor Code of the Russian Federation on dismissal during vacation
- Article 81 - it is possible to dismiss an employee who is on vacation only as a result of the liquidation of the company.
- Part 2 Art. 125 - it is forbidden to call an employee from vacation in order to dismiss him.
- Part 1 Art. 80 - the employee must report his intention to quit within 14 days.
- Part 3 Art. 80 - an employee may quit during vacation without further return to work for a number of reasons (for example, retirement, start of studies, etc.)
- Part 4, Article 80 - if the dismissed person, who wrote the application and went on vacation, intends to withdraw his decision, but a new employee has already been invited to his workplace in writing, 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" is dismissed on vacation, "undeserved" vacation pay will be deducted from his calculation.
The Labor Code provides officially employed individuals many ways to terminate the contracts concluded with the employer.
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Moreover, in most cases it protects the rights of employees, but not the employer. It is the poet that the employee can quit right during the vacation of his own free will.
Is it possible
If an officially employed employee decides for some reason to quit of his own free will right during his vacation, then the implementation of this action will not be considered illegal.
Labor Code, as well as other regulations do not contain articles that make it impossible to terminate an employment contract during a vacation by an illegal process.
But it is worth remembering that this kind of procedure has a large number of various nuances. The most important of them are the following:
- to complete the application, interrupt the vacation, make a call from it is not required;
- it is imperative to comply with the application deadlines.
A special situation is the provision of leave in advance. Making this kind of vacation on credit is possible on the basis of current legislation.
It is not required to observe any proportions 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 fill out an appropriate application and transfer it to the personnel department.
Again, you don't have to do it in person. It will be necessary to send the application itself by registered mail with a list of attachments to the address of the employer.
The work book itself can also be received by mail - you just need to indicate this moment in a letter of resignation.
Highly important nuance which must always be kept in mind is the obligatory observance of the deadlines for submitting the respective application.
Under current legislation, it is mandatory to notify your employer of dismissal 2 weeks in advance.
But if the employee who wrote the application is on sick leave or vacation for the next 14 days, then this period cannot be extended.
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.
Timing
The period during which the employee is obliged to notify his employer of dismissal is indicated in Labor Code Russian Federation.
In fact, the duration of the dismissal process can be the 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 period of dismissal of one's own free will during the 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).
To the list similar situations includes the following:
- the employee was enrolled as a student in any 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 of your own free will, but the vacation ends before the expiration of the two-week period, then you can not work out the remaining period of time based on the above reasons.
Especially often, various older people use this method of dismissal - they specially take a vacation in such a way that immediately after it they leave to retire.
Order
The procedure for dismissing an employee of one's own free will is extremely simple.
It includes the following main steps:
- writing an application in the appropriate form by the employee;
- the formation of a special order according to - it is signed by the head or another official who have 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 worker picks up the work book.
When writing a letter of resignation of one's own free will, there is no need to follow any specific format.
The employee of the personnel department must formalize the dismissal process accordingly. Its task is as follows:
- preparation of an order in the T-8 form, transferring it for signature to the director, his deputy or other authorized person;
- 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 it still happens that the management, out of a desire to harm, prescribes there some unflattering 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 in question: "Fired of his own free will 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 on the territory of the Russian Federation.
Also, a serious violation of the current legislation is the failure to return work book in time.
How to write an application
Writing a letter of resignation is the easiest step in this process. It is in free form. Can be written by hand or printed on a PC.
But it 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:
- Briefly worded request for dismissal, indicating the reason (optional);
- desired date of dismissal;
- in the lower part:
- Date of preparation;
- applicant's signature;
- a 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 should be mandatory to require a mark on the acceptance of this document by the personnel department.
Or simply send this document by registered mail with a description of the attachment. Since there are often precedents when an employee of the personnel department simply throws the submitted application into the trash can.
In this case, it will be extremely problematic to prove the correctness in court, since there will simply be no confirmation of the submission of the application to the personnel department.
Voluntary dismissal during unpaid leave
There is a fairly long list of ways to avoid working out upon dismissal. But some of them are quite difficult to implement. 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, to implement such a scheme simply does not work. In this case, the best solution is to compromise with the employer.
Since, by agreement, the management of the enterprise can dismiss the employee in one day, in compliance with all legislative norms.
Often, for various reasons (voluntarily or out of necessity), employees go on vacation without pay - without pay.
In this case, the procedure for dismissal remains the same. It is enough for the employee himself to simply write a statement in the appropriate format.
The employer is obliged to pay monetary compensation (if any) and transfer the work book to the employee.
At the same time, it must be remembered that the employer does not have the right to dismiss an employee on his own initiative while he is on leave without pay.