The dismissal procedure has always raised a lot of questions, despite the well-developed legal regulations labor law... The fact is that dismissal is always associated with specific situation, with emotional reactions(not always worthy), with a different interpretation of the law of two opposing sides: the employee and the employer.
Getting fired while on vacation is no exception. And although according to the law it does not matter at all whether 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 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, teaching staff it is not 28 days, but 42). If an employee went on vacation before the right to him appeared (he took it "in advance"), then he must work this time or return the money to the organization for the unworked hours (spent on vacation). The bosses may react inadequately to your dismissal during vacation: they simply will not accept and will not publish, they may demand to rewrite the application, setting different 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 settle with you, deduct the unworked hours from your vacation pay, if you have not received them yet. If received, you can return it against receipt. However, always remember that the employer does not have the 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, to the founder, if you employee of 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 note on receipt (it is 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 the receipt of your application.
Situation 3. While on vacation and having made an unexpected decision to quit, you can leave unfinished business related to your responsibilities. If you are an accountant and must submit reports, or you must take an inventory - such cases make it difficult to leave during vacation.
What to do? You will have to go to work during your vacation and finish the unfinished business, for this you need a written order from the director to call you from vacation due to "production" necessity. This option is better than postponing the dismissal.
Situation 4. You quit due to the 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 by 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 "working off" is not in labor code RF. No employee is obliged to work, he is only obliged to notify 2 weeks in advance. In this case, it does not matter at all whether the dismissal occurs during the vacation period, or during sick leave (on a business trip, at school - it does not matter). Your absence from work good reason does not oblige you to work out. You do not even have to transfer cases to a new employee (unless only if you are leadership position are 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 your employer. None of you need notoriety and litigation. If it doesn't work, follow the law - dismissal by on their own during vacation is provided for in the Labor Code, in Articles 77, 80.
The law prohibits dismissal during vacation on the initiative of the employer. It's another matter if the employee wants to quit of his own free will.
Is it possible to quit while on vacation if the employee wishes to do so? What actions should the employee and employer take to ensure that the dismissal takes place in accordance with the Labor Code of the Russian Federation?
According to Art. 80 of the Labor Code of the Russian Federation, dismissal of one's own free will during the next vacation is possible if the employee warns the employer 2 weeks in advance. That is, the employee must write a letter of resignation of his own free will 2 weeks before the expected date of dismissal. Whether he is on another vacation or not, does not matter.
If the employee cannot personally serve his application, he can send it by mail or send it through the principal. The employer has no right not to accept the application for consideration.
Dismissal during the vacation period is executed in the same way as voluntary dismissal in a normal situation. The employee writes a statement and after 2 weeks he is considered dismissed.
Based on the application for dismissal, the employer draws up an order in which the employee must sign. Since the employee is on vacation, he is not always able to personally sign. In this case, the employer must make a note on the order itself, and also draw up an act.
After filling out the order, the employer must issue a certificate - a calculation, which will indicate all payments due to the employee:
- wages for actually worked days in the month of dismissal;
- compensation for unused vacation. If an employee takes the whole vacation, and then leaves, then the employer does not owe him anything under this item, only if the employee has vacation days for the last year.
If the employee did not take all the vacation, and he still has days, then the employer must pay compensation for them. - severance pay. And although the Labor Code of the Russian Federation does not provide for the payment of benefits upon dismissal of their own free will, in labor or collective agreement it may be indicated that the employer undertakes to pay its employees a certain amount of money.
All payments are made on the day of dismissal. At the same time, the employer must issue the employee a work book, which will be filled in in accordance with personnel procedures, as well as labor legislation.
Also, the employer must give the employee, at his written request, copies of all documents related to the work of this employee. Help 2-NDFL and Help 4H are issued in the accounting department in mandatory.
If the employer still wants to dismiss the employee during the vacation, he can negotiate with him and conclude an agreement on dismissal "by agreement of the parties."
Upon dismissal on this basis, the employer may offer to pay the employee additional compensation.
Is it possible to quit while on vacation of my own free will? Yes, by fully complying with the termination procedure.
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 Russian legislation on this occasion it is clearly written that to stop labor Relations the employer cannot be with the employee during this period, so the employee has nothing to fear. This rule applies not only to the main leave, but also maternity and additional leave. It should be borne in mind that the employee himself can quit at any time, having prepared everything Required documents.
Dismissal of an employee
According to the Labor Code of the Russian Federation, an employer cannot fire a person while on vacation. This can be done only after he leaves this vacation. Even reasons such as incompetence 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 company where the person worked has completely ceased its activities or went bankrupt.
- The employee himself decided to apply for his resignation.
An employee has the right to resign 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 can be sent to court. Such cases happen very often if the employee did not fulfill his financial commitments 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 be notified of this at least one calendar month... The term can be reduced only if a compulsory bankruptcy procedure has been carried out, it must have already been carried out at the time of notification. All these nuances are included in the work book. However, this happens only if the company is completely liquidated, and not just transfer its assets to another firm. Sometimes it happens that unscrupulous employers simply deceive their employees.
Read also The procedure and features of the division of leave into parts
Dismissal of your own free will
As it was already found out, the dismissal of an employee on vacation is impossible, but the employee himself can leave at his own request at any time. Dismissal of an employee of his own free will is possible if:
- The man wrote a statement while 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 procedures for dismissal are slightly different in these two situations. If the application is signed already on vacation, then the employee in some cases 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 one more week, because according to the law, it is necessary to warn about your leaving 14 days in advance.
An employee can ask his employer for leave and fire him right there. In this situation, the day of termination of the contract will not be considered 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 given wages.
Maternity leave
Many women worry that they might 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, since the legislation protects women in this case... Dismissal of an employee is possible only at his own request, but not at the initiative of the employer. A woman can write a statement herself during her maternity leave and no longer go to work. In some cases, employers take advantage of this and try to force the 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 The procedure for the correct calculation of the 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 letter of resignation is sent to the physical address of the firm. Sometimes it happens that the actual address of the enterprise and the physical one do not match. To play it safe, you should send a letter in duplicate to each address, then it will definitely go where you need it. You should also make sure that the employee receives a report that the letter has been received. In this way, deception can be avoided, because the employer can say that he simply did not receive anything.
By the way, the employer does not have to sign the application. You just need to put a date stamp on the employee's copy. This is done without fail, because a 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 should be taken into account 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 it takes two weeks to notify about your leaving. Under no circumstances can an employer keep an employee in the workplace. He must give him everything labor documents, as well as the due salary without any delay.
Do not be afraid that you will be refused dismissal when you are on vacation. This is legal right any employee, and this is controlled by the labor code of the Russian Federation.
Dismissal without working off
In some cases, the employer can exempt the employee from working hours, 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. Two-week working off is canceled in the following cases:
- Retirement;
- Admission to study at a university, technical school or college;
- Violations of an employment contract by an 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 if the employee simply does not agree with the decision of his superiors. Some cases, by the way, are considered on an individual basis. Sometimes you can count on early dismissal due to illness of close relatives or an urgent move to another city.
Dismissal during vacation in Russia is prohibited, but there are times when an employee has to be counted from his position during the planned vacation period. How to properly formalize this procedure without violating the law?
Reasons for dismissing employees
Vacation at your own expense is allowed no more than a certain period for the year, which is specified in employment contract... If the employee takes a break more often, keeping him at the workplace is unprofitable.
Registration of leave
Dismissal procedure:
- Based on the employee's statement, you need to draw up a dismissal order. It indicates the full name of the employee, his position, reason for dismissal, date. Below the document must be signed by the employer and the dismissed. But if the employee, while on vacation, cannot put his signature, then a mark is made in the order and an act is drawn up in free form with the signature of several witnesses.
- After issuing the order, the former employee must receive a calculation.
- On the day of dismissal, the employee should be given a work book, in which a note is put with the reason. For example, he was dismissed of his own free will in accordance with Art. 70 of the Labor Code of the Russian Federation.
In addition to the above, a former employee may demand to issue him a certificate of income of 2 personal income tax and 4 N. You have no right to refuse to issue it.
What is included in the calculation
The calculation includes the following payments:
- Salary for the days that a person worked in a month before going on vacation. For example, if the vacation began on May 10, then for working days from 1 to 10 the employee is entitled to a salary.
- Compensation for the days left from the vacation. Of course, if the vacation ends on the day of dismissal, then the payment is not due. If over the past years there are no days off from vacations, then they must be paid (Article 127 of the Labor Code of the Russian Federation).
- Compensation if the employee took only part of the due leave. The remaining days are paid.
- Severance pay, if specified in an employment or collective agreement. Otherwise, according to the law, the employee is not entitled to severance pay upon voluntary dismissal.
The calculation is issued together with work book on the day of the date specified in the order of dismissal (paragraph 5 of article 80 of the Labor Code of the Russian Federation).
During vacation, an employee cannot be fired without good reason. You should not fire a person from work during maternity or administrative leave. This could end in litigation. If an employee has gone to study, and you, as an employer, do not like it, you can try to conclude a verbal agreement with him and dismiss with the consent of the parties. In this case, the employee will require financial compensation for his time. But when the work is idle, and it is impossible to dismiss the occupant according to the law, this is a way out of the situation.
Dismissal during vacation is issued in the same way as in all other cases. The difference in the calculation is only in the payment of compensation for the vacation.
