Resign during vacation without working. Dismissal during a planned vacation: calculation of vacation pay. An employee on vacation can be dismissed at his own request.

Dismissal during vacation is prohibited in Russia, but there are cases when an employee has to be dismissed from his position during the planned vacation period. How to properly complete this procedure without violating the law?

Reasons for employee dismissal

Vacation at your own expense is permissible no more than a certain period per year, which is specified in the employment contract. If an employee takes rest more often, it is not profitable to keep him at work.

Registration of dismissal

Dismissal procedure:

Based on the employee’s statement, you need to draw up a dismissal order. It indicates the employee’s full name, position, reason for dismissal, and date. The document below must be signed by the employer and the dismissed person. But if the employee, while on vacation, cannot put his signature, then a note is made in the order and a free form act is drawn up with the signature of several witnesses.

After placing an order former employee must receive payment.

On the day of dismissal, the employee must be given a work book with a note indicating the reason. For example, fired due to at will according to Art. 70 Labor Code of the Russian Federation.

In addition to the above, a former employee may require a certificate of income 2 personal income tax and 4 N. You have no right to refuse its issuance.

What is included in the calculation

The calculation includes the following payments:

Salary for the days a person worked in a month before going on vacation. For example, if the vacation began on May 10, then the employee is entitled to wages for working days from 1 to 10.
Compensation for days remaining from vacation. Of course, if the vacation ends on the day of dismissal, then payment is not due. If over the past years there are days left from vacations that have not been taken off, then they must be paid for (Article 127 of the Labor Code of the Russian Federation).
Compensation if the employee took only part of the allotted vacation. The remaining days are paid.
Severance pay, if specified in the employment or collective agreement. Otherwise, according to the law, upon dismissal of one’s own free will, the employee is not entitled to severance pay.

The calculation is issued along with the work book on the day of the date specified in the dismissal order (paragraph 5 of Article 80 of the Labor Code of the Russian Federation).

During vacation, an employee cannot be dismissed without good reason. You should not fire a person from work during maternity or administrative leave. This might end legal proceedings. If an employee leaves for study, and you, as an employer, don’t like it, you can try to conclude an oral agreement with him and terminate his employment with the consent of the parties. In this case, the employee will require financial compensation for his time. But when work is idle, and it is legally impossible to fire the incumbent, this is a way out of the situation.

Dismissal during vacation is processed in the same way as in all other cases. The only difference in calculation is the payment of compensation for vacation.

There are several scenarios under which termination of an employment contract may occur. One of the most common wordings of dismissal is: “At one’s own request.” Let's consider a special case of dismissal, namely, whether it is possible to quit while on vacation, and how to do it correctly.

Dismissal during vacation

Please note - according to the Labor Code (LC) of the Russian Federation, an employee can resign while on vacation, only on your own initiative.

Termination of an employment contract initiated by the employer is possible only to a limited extent cases(Article 81 of the Labor Code of the Russian Federation):

by mutual agreement between employer and employee;
upon complete liquidation of the company.

Rules for filing a resignation letter

Filing an application for resignation of one's own free will, regardless of whether the employee is on vacation or not, is the first step that a citizen who wants to terminate an employment contract must take.
For clarity, we present the methods of submitting a notice of intent to resign in the form of a table.

Dismissal during vacation and working off

According to labor legislation (Article 80 of the Labor Code of the Russian Federation), an employee must notify his employer of his intention to resign no later than 14 days before the planned dismissal. This period is necessary so that the employer can find a candidate for the vacated position. The Labor Code of the Russian Federation does not use such a term as “working off”, but, in fact, the period of 14 days between filing an application and dismissal is exactly that. Conclusion: the fourteenth day from the date of filing the application is the day of dismissal.

A citizen’s desire not to work for 2 weeks upon dismissal is understandable and feasible. This can be done if the employment relationship is terminated during the vacation period. Let's analyze how to quit without working while on vacation.

Option one: submission of notice of dismissal simultaneously with the application for leave or on the last day before leave. An important condition is that the vacation period must be 14 days or more. This case implies that the last working day for this employer coincides with the last day of vacation. Therefore, all payments to the employee must be made on the last working day before the vacation.
Option two: dismissal during vacation. Vacation, according to the Labor Code of the Russian Federation, is 28 days. Therefore, in order not to work the agreed 14 days, it is necessary to calculate the end date of the vacation and submit a letter of resignation no later than 14 days before it. It is better to do this a little earlier so that the HR department has time to register the application.

It will not be possible to resign during vacation without working off if the employee submits an application later than 2 weeks before the end of the vacation. IN in this case he will have to go out on his own after the end of his vacation workplace and complete a period equal to the difference between 14 days and the remaining days of leave when he submitted the application.

Nuances of the dismissal procedure

The dismissal procedure must comply with labor legislation and a certain procedure for implementation.
A brief algorithm for the dismissal procedure:

note

According to the Labor Code of the Russian Federation, vacation payments must be issued to an employee 3 days before the vacation. The employee will receive compensation payments due upon dismissal on the last day of work. Read more about dismissal after leaving vacation on our website in this

the employee submits a resignation letter;
issuing an order for the organization to terminate the employment contract with the resigning employee;
familiarization of the employee with the order against signature. If the employee cannot sign the order due to territorial remoteness, then the HR department employee must make a note about this on the order and draw up a special act;
compiling a calculation of payments due to a resigning employee;
making a record of dismissal in the work book indicating the article of the Labor Code of the Russian Federation and the number of the order on the termination of the employment contract;
issuing a work book, 2-NDFL and 4H certificates to a resigning citizen;
issuing to the employee all amounts of money due to him.

It is worth noting that the dismissal procedure is standard and valid both for a citizen performing official duties and for an employee who is in regular, maternity or educational leave(about the features of providing the latter, read the article)

A specialist will advise you in the comments below

Dismissal during vacationis one of the ways to terminate an employment contract without working off. However, the right to terminate labor relations During the vacation period, any employee has on his own initiative. We will talk about the intricacies of this procedure and the rights of the parties below.

Is it possible to quit while on vacation?

If you don’t know whether you can quit while on vacation, then we answer: of course, you can. At the same time, no employer has the right to restrict an employee from his desire to submit an appropriate application and terminate his employment relationship with him. But an employer can fire an employee who is on vacation only in a limited number of cases:

In all other situations, dismissal during an employee’s vacation against his wishes is impossible.

When is a resignation letter written during voluntary leave?

When resigning during voluntary leave, there are several options for notifying the employer of the upcoming termination of the employment contract. An employee can submit a letter of resignation at the same time as submitting an application for leave, or he can submit it while he is on leave.

Let us clarify that the employer has the right to refuse to grant an employee leave with subsequent dismissal, since such an obligation is not assigned to him at the legislative level. Leave under such conditions is solely the right of the manager.

If you are planning to quit without leaving your vacation, the last day you will fulfill your labor responsibilities in the organization (of course, if the appropriate application is submitted in a timely manner), the last day of vacation will be considered. Remember also that after your vacation you should not go back to your previous place of work to receive documents, since making payments to the employee and issuing documents to him is provided for on the last day worked before going on vacation.

On this date, authorized specialists must take the following actions:

An order to terminate the contract has been prepared.
The corresponding entries are made in the work book (after which it must be handed over to the resigning person).
Full payment has been made.

It should also be noted that in addition to the calculation for the period actually worked, you will receive general principles Vacation pay is also paid. If vacation is partially used, 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 statement, 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 delivery and a list of the attachments, since in this case you will have proper evidence not only of the fact that the letter was sent, but also what kind of letter you sent, who received it and when.

It is also important to understand that if there are less than 14 days left from the moment the employer receives the application until the end of your vacation, the remaining days will need to be worked after the vacation (unless, of course, the employer meets you halfway and does not let you go without working). The 2-week period begins to count from the date following the date on which the employer received the resignation letter.

That is, in general, the date of dismissal of an employee will be considered the day of the end of the 2-week period established for notice of dismissal, even if this day falls during the vacation period. On the day that is the last officially working day, the employer must give the employee his work record and make a full settlement with him.

Is it always possible to quit during the vacation period?

An employee planning to terminate his employment relationship has the right to declare dismissal during 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, calculation of terms and calculations 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 mentioning that termination of employment relations on such grounds 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 matter. 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 second party or express it orally.

The Labor Code also does not provide any explanations regarding the form of the dismissal agreement itself, from which we can conclude that an oral agreement on the date and conditions of dismissal is as valid as a written one. However, it is still recommended to formalize the 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 an appropriate order from the employer. The basis for issuing an order usually specifies the details of the agreement reached between the parties. This is another argument in favor of the fact that it is better to formalize such an agreement in writing.

As for the need to receive a resignation letter from the employee, since neither the Labor Code nor any other normative act do not indicate the statement as mandatory document required to terminate an employment contract, we can conclude that its absence will not in any way 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 no such thing in writing, the employee’s statement and the dismissal order issued on its basis will serve as evidence that the parties have reached an appropriate agreement.

This position is 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. 2-4314/2015. In both cases, the courts considered agreement on the date, grounds and conditions of dismissal to be reached, despite the absence of a written agreement. Statements from employees and dismissal orders issued on their basis were accepted as evidence of reaching an agreement.

Thus, only the corresponding order is a mandatory written document for formalizing dismissal by agreement of the parties. But in order to avoid disputes about the legality of termination of the employment contract, it is recommended to conclude a written agreement between the parties or submit a written statement from the employee.

Let's summarize. The procedure for dismissing an employee on vacation is no different from the procedure for terminating an employment relationship 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 in case of complete liquidation of the enterprise.

E.A. answered questions. Shapoval, lawyer, Ph.D. n.

Vacation + dismissal? Combining correctly

Some employees want to take their allotted vacation before leaving. And here two situations are possible:

<или>the employee, while on vacation, decides to resign of his own free will;
<или>the employee is about to quit, he has unpaid leave, and he asks to be granted leave with subsequent dismissal.

Registration of dismissal and settlements with employees in these situations are carried out differently.

An employee on vacation can be dismissed at his own request.

The employee went on scheduled leave in July. While he was on vacation, we received a letter from him by mail asking us to fire him. Are vacation days included in the employer's two-week notice period for dismissal? Besides, we can’t fire an employee while he’s on vacation, right?

: You cannot dismiss an employee who is on vacation only at the initiative of the employer (for example, due to layoffs) Art. 81 Labor Code of the Russian Federation. Your employee quits of his own free will.

WE TELL THE EMPLOYEE

Notice period for employer about dismissal at your own request, if the application is sent by mail, is counted upon receipt by the employer. Therefore, you need to add more days to the two weeks to send the letter by mail.

The Labor Code of the Russian Federation does not provide for the possibility of extending the period of notice of dismissal due to the employee’s absence from work. Art. 80 Labor Code of the Russian Federation. This means that vacation days are included in the employer’s two-week warning period about dismissal. In this case, the two-week notice period for dismissal is counted from the day following the day the employer receives the employee’s application Art. 80 Labor Code of the Russian Federation. Therefore, you need to fire an employee on the last day of the two-week notice period, without waiting for the end of the vacation. On this day, you must make a final settlement with him if he is due any payments (for example, wages for days worked before vacation, compensation for unused vacation if he still has unused vacation days), and also issue a work book and other work-related documents. If you pay your salary through a cash register, then you can keep it in the cash register for no more than 5 working days, including the day you receive the money in the bank. clause 4.6 of the Central Bank Regulations dated October 12, 2011 No. 373-P. Since the employee is on vacation, most likely, at this time he will not come for payments and a work book. Then return the unclaimed amount back to the bank (i.e. deposit it).

More information about the procedure for registering and recording the deposit of unclaimed wages is written:

And to prevent an employee from collecting average earnings from your organization for late issuance of a work book, send him by registered mail a notification of the need to appear for a work book (or agree to have a work book sent by mail) and receive a payment. Art. 84.1 Labor Code of the Russian Federation.

Leave with dismissal - the work book is issued on the last day of work

M.A. Sizova, Orenburg

The employee was granted leave from July 2 to July 29, 2012, followed by dismissal. We have a regular five-day work week. On what day are we obliged to fire him, when should we give him a work book and make a payment?

: The day of dismissal will be the last day of vacation - July 29, 2012. This is the date you will indicate in work book employee. But you need to pay the employee (that is, pay wages for work in the second half of June), and also issue him a work book on the last day of work before the vacation, that is, June 29 (June 30 and July 1 are days off) Articles 80, 127 of the Labor Code of the Russian Federation; Determination of the Constitutional Court dated January 25, 2007 No. 131-О -О; Letter of Rostrud dated December 24, 2007 No. 5277-6-1. Do not forget that you still must pay him vacation pay 3 calendar days before the start of the vacation, that is, no later than June 28 Art. 136 Labor Code of the Russian Federation.

The day of dismissal may be a day off

T.A. Kraskovskaya, Yaroslavl

The employee was granted leave with subsequent dismissal. On what day should we dismiss an employee if the last day of vacation falls on Sunday, July 15?

: When granting leave followed by dismissal, the day of dismissal is considered the last day of leave Art. 127 Labor Code of the Russian Federation. And, despite the fact that it is a holiday, you must fire the employee on July 15th. However, you need to pay him and give him a work book on the last day of work before the vacation.

Two-week work can be replaced by vacation followed by dismissal

O.I. Titova, Smolensk

The employee wrote a letter of resignation of his own free will. Is it possible to fire him without working, taking into account the fact that at the time of filing the application he did not take two weeks of vacation?

: It all depends on the agreement between the employee and the employer. If at least one of them objects, then the employee can be fired only after two weeks of work and Art. 80 Labor Code of the Russian Federation. After all, as a rule, the employer needs time to find another employee to fill the vacant position; he wants the resigning employee to finish something, transfer things, and the employee expects to work for some more time and receive a salary. And then also receive compensation for unused vacation.

If neither the head of the organization nor the employee himself objects to dismissal without working for 2 weeks, then you can:

<или>dismiss the employee from the date specified in the application, with payment of compensation for two weeks unused vacation. In this case, the date of dismissal will be the date indicated in the resignation letter and Art. 84.1 Labor Code of the Russian Federation;
<или>provide vacation followed by dismissal with payment of vacation pay. Then the date of dismissal will be the date on which the last day of vacation falls Art. 127 Labor Code of the Russian Federation. And this will allow the employee to increase the length of service for benefits and pensions and Part 1 Art. 16 of the Law of December 29, 2006 No. 255-FZ; Art. 10 of the Law of December 17, 2001 No. 173-FZ.

The amount of payments to the employee in both cases will be the same, since compensation for unused vacation and vacation pay are calculated in the same way. Art. 139 Labor Code of the Russian Federation; Regulations, approved Government Decree No. 922 dated December 24, 2007 (hereinafter referred to as the Regulations).

In case of layoffs, you can be granted leave followed by dismissal

V.T. Markina, Ulyanovsk

Our organization has been reducing its workforce since August 1, 2012. The employees were given written notices of the reduction on May 28, 2012. One of the employees wrote a statement in which he asked to reschedule annual leave, scheduled for September 2012, for July 2012. Management does not object. Is it possible to reschedule an employee’s vacation in this way if they are made redundant? Should we provide the employee with full vacation or only for the time worked?

: Postponement of vacation is possible by agreement of the parties. If your management does not object, you can grant the employee leave with subsequent dismissal instead of September in July 2012. After all, such leave is prohibited from being granted only in case of dismissal due to the employee’s guilty actions (for example, when dismissal for absenteeism) Art. 127 Labor Code of the Russian Federation.

FROM AUTHENTIC SOURCES

Deputy Director of the Department of Education and Human Resources of the Russian Ministry of Health

“The Labor Code does not limit the possibility of providing leave with subsequent dismissal in the event of dismissal due to a reduction in the number or staff of employees in clause 2, part 1, art. 81 Labor Code of the Russian Federation.

It is not legally determined how long the employee should be given leave in such a situation: full or only for the time worked. In our opinion, the employee can claim the number of vacation days that he has earned.”

If you provide full vacation, then you will pay the employee for part of the unworked vacation. And you won’t be able to keep overpaid vacation pay. clause 2, part 1, art. 81, art. 137 Labor Code of the Russian Federation, but you will be able to expense the amount of vacation pay for the part of the vacation provided in advance clause 7 art. 255 Tax Code of the Russian Federation; Art. 137 Labor Code of the Russian Federation.

The length of service for leave followed by dismissal is calculated before the start of the leave

S.Yu. Krasikova, Omsk

The employee goes on vacation with subsequent dismissal from July 16 to July 29, 2012. How to correctly calculate the length of service for vacation: on the day of dismissal (July 29) or on the day preceding the first day of vacation (July 15)?

: Although the day of dismissal when granting leave with subsequent dismissal is the last day of leave, the employee does not retain his place of work during the leave Art. 127 Labor Code of the Russian Federation. Consequently, the vacation period is not included in the vacation period, that is, Art. 121 of the Labor Code of the Russian Federation does not apply in this case.

FROM AUTHENTIC SOURCES

“Vacation followed by dismissal is a special case. The employee receives a paycheck and work book in hand before the vacation. The employer no longer owes him anything. Therefore, the period of an employee being on leave followed by dismissal is not included in the length of service for paid leave.”

Ministry of Health of Russia

Thus, the vacation period when granting vacation followed by dismissal must be counted on the day preceding the day the vacation began. Art. 127 Labor Code of the Russian Federation. That is, in your case, until July 15, 2012.

It is not possible to grant leave for part of the day

A.N. Zherdeva, Tula

The employee applied for leave with subsequent dismissal. The management is not against granting him such leave. At the time of the start of his vacation, his vacation period was 7 months 22 days. How many days of vacation should he be provided and paid for?

: Regarding your question, the Ministry of Health explained the following to us.

From authoritative sources

“ If an employee is granted leave with subsequent dismissal and the number of days of leave, determined depending on length of service, is not a whole, but a fractional number, then vacation is granted for an integer number of days for which vacation pay is paid. And for the rest, compensation is paid.”

Ministry of Health of Russia

In your situation, the employee’s length of service is 7 months 22 days, you need to round it up to 8 months in Letter of Rostrud dated June 23, 2006 No. 944-6. Therefore, the employee is entitled to 18.64 days of vacation (8 months x 2.33 days). Since it is not possible to provide vacation for part of a day, you need to provide the employee with 18 days of vacation and pay vacation pay for them, and pay vacation compensation for another 0.64 days.

The next vacation cannot be converted to vacation with dismissal

E.K. Selezneva, Ryazan

The employee was on vacation as scheduled from June 25 to July 15, 2012. And he still had 28 days of unused vacation left. On June 29, 2012, we received an application from the employee to grant him non-commuter leave with subsequent dismissal. Are we obligated to extend his vacation? And how to determine billing period in this case?

: Providing leave with subsequent dismissal is a right, not an obligation of the employer Art. 127 Labor Code of the Russian Federation. Therefore, everything depends on the decision of your management.

If the manager does not object to granting the employee leave with subsequent dismissal, you need to issue the employee leave with subsequent dismissal from July 16 to August 12, 2012. The billing period for his payment will be July 2011 - June 2012. And the day of dismissal of the employee is 12 August 2012 Art. 139 Labor Code of the Russian Federation; clause 4 of the Regulations

If the manager refuses the employee, then you will have to dismiss the employee on July 13, 2012 (when 2 weeks have passed from the date of receipt of the employee’s resignation) at his own request and pay him compensation for the unused 28 days of vacation. The period for its calculation will also be July 2011 - June 2012. Art. 139 Labor Code of the Russian Federation; clause 4 of the Regulations

When leaving while on vacation, this vacation is included in the vacation period.

M.I. Bulkina, Rostov

The employee went on annual paid leave for 28 calendar days from June 4, 2012 to July 2, 2012 for the period from August 1, 2011 to July 31, 2012. We paid him wages for May 2012 and vacation pay. While on vacation, the employee submitted a letter of resignation of his own free will. The two-week notice period for dismissal expires on June 27, 2012. How can you recover from an employee overpaid vacation pay for June and July 2012 that he did not work?

: In your situation, the employee received leave in advance for only one month - July 2012. After all, the employee quits of his own free will, while in next vacation. Therefore, the vacation itself is included in the length of service that gives the right to vacation Art. 121 Labor Code of the Russian Federation.

More information about judicial practice in cases of recovery of unearned vacation pay from quitters can be found: 2012, No. 5, p. 56

As for vacation pay for 1 unworked month, that is, for 2.33 days (28 days / 12 months x 1 month), then, if all settlements with the employee have already been completed, you can:

<или>invite the employee to voluntarily return overpaid vacation pay;
<или>try to collect them in court Articles 1102, 1109 of the Civil Code of the Russian Federation. However, the chances of getting a debt for unearned vacation pay from a quitter in court are slim, since most disputes regarding the collection of unearned vacation pay ended not in favor of the employer Determinations of the Moscow City Court dated 08.08.2011 No. 33-23166; St. Petersburg City Court dated November 3, 2011 No. 33-16437/2011. Therefore, when deciding whether to go to court or not, focus on judicial practice in your region.

Between an employee and an employer it can be carried out on the initiative of one of the parties or in the form of an agreement, which in practice is also often initiated by one of them. At the same time, familiarization with the contents of Art. 81, which regulates the procedure for terminating an employment contract at the initiative of the employer, clearly demonstrates that termination of employment relations on this basis while the employee is on vacation is not permitted. Thus, dismissal during vacation is always carried out:

The general procedure for dismissal at the initiative of the employee, described in Art. 80 of the Labor Code of the Russian Federation, in turn, does not contain any restrictions regarding the period for filing an application for dismissal. Thus, this situation should be interpreted as the employee having the right to dismiss at his own request, including during absence from the workplace, for example, in period of temporary incapacity for work or while on vacation.

Moreover, the date of dismissal does not have to occur after his recovery or return from vacation: it is quite possible to terminate the employment relationship with the employer before the expiration of the specified periods.

The legitimacy of this position is confirmed by Rostrud specialists in letter dated September 5, 2006 No. 1551-6. In addition, the courts take a similar position: in our we provide a detailed list court decisions, confirming this point of view.

Download documents on the topic:

Vacation followed by dismissal

One of the options for dismissal on vacation is vacation followed by dismissal. This personnel procedure is a situation where an employee announces his intention to terminate his employment relationship even before going on vacation, knowing that after the end of his legal paid vacation he will never return to his previous job.

Providing an employee with leave followed by dismissal is a right, not an obligation of the employer.

Among employees, this method of terminating an employment contract is quite popular, since it relieves the employee of the need to “work out” a two-week period from the moment of filing a letter of resignation until the actual dismissal, provided for in Art. 80 Labor Code of the Russian Federation. This opportunity for employees is provided for by the provisions of Part 2 of Art. 127 Labor Code of the Russian Federation.

Note! In order to go on vacation with subsequent dismissal, the employee must have the right to paid leave in accordance with Art. 122 Labor Code of the Russian Federation.

However, it is worth keeping in mind that vacation with subsequent dismissal is not a right for all employees: for example, this opportunity cannot be used by employees dismissed for guilty actions, such as failure to perform job responsibilities or other.

In this case, dismissal does not constitute own initiative employee, and disciplinary action. Therefore, he is not given the right to formalize his dismissal during or immediately after vacation. Check out our article in order to understand which provisions of the Labor Code serve as the legal basis for such an interpretation.

If an employee goes on vacation with the intention of subsequent dismissal, having a legal right to do so, all necessary operations related to his dismissal should be completed before the start of his vacation. In our material We remind you what you should not forget when parting with an employee.

Rights and obligations of an employer upon dismissal during vacation

When considering the possibility of terminating the employment relationship at the initiative of the employee, it should be taken into account that the submitted application for leave with subsequent dismissal is not binding on the employer. However, if the parties have entered into an agreement on termination of the current employment contract, which states that an employee can part with the organization in this way, the employer no longer has the right to refuse such a procedure.

Registration of dismissal during vacation

The procedure for registering dismissal during a period of voluntary leave includes several mandatory steps. Please note that they are, in principle, not subject to the dismissal procedure under normal conditions.

Thus, in order to be dismissed, the following personnel procedures must be followed:

receiving an employee's resignation letter;

preparation of an order on the basis of which an employee is dismissed while he is on vacation.

Registration of leave with subsequent dismissal

Note that if we're talking about on granting leave with subsequent dismissal, the employer has the right, at his discretion, to choose one of the design options. One of them is the issuance of two separate orders, one of which records the fact of his being sent on leave, and the other - the termination of employment relations with him. For companies that use in their personnel document flow the forms established by Resolution of the State Statistics Committee of the Russian Federation dated 01/05/2004 N 1, a vacation order can be drawn up according to form No. T-6 or T-6a, and an order about - according to form No. T-8 or T-8a.

Another design option involves issuing a general order that reflects both facts simultaneously; it is published in free form. However, a independently developed form can be used for two separate orders. In ours we provide examples of such documents that you can use in your work.

preparation of relevant notes and calculations that establish the procedure for implementation necessary payments in connection with sending an employee on vacation and his dismissal. So, if the company uses unified document forms, it should be used to record vacation calculations - form No. T-604, for termination of employment - No. T-614;

making an entry in the employee’s work book about the termination of the employment relationship and closing the employee’s personal card. For companies using unified forms, in this case, form No. T-24 is recommended.

By the way, it is worth paying attention to the wording that must be used when making the appropriate entry in the employee’s work book. The entry that he was fired while on vacation is incorrect. To understand how to correctly formulate such an entry, read our material.

Resignation letter during vacation

The procedure for dismissal while on voluntary leave based on an employee’s application does not differ significantly from dismissal during the period when he is present at the workplace. As in other cases, for this he needs to submit an application for termination of the employment contract. At the same time, current labor legislation allows the date of dismissal to fall within the period employee leave.

Thus, if an employee on vacation wrote a letter of resignation, employment contract may be terminated despite the fact that he is absent from his workplace.

Please pay attention! An employer cannot accept as an application an employee's email requesting dismissal. It is imperative to obtain a written statement from the employee.

In this case, the employment relationship between the employee and the employer is subject to termination on the day specified in the application - of course, if such an application is submitted in compliance with all the requirements of labor legislation.

In this situation, the employer does not need to personally contact the employee to dismiss him: it will be enough to send him a notice of dismissal and a request to appear to pick up his work book and receive the money due to him. By the way, the judicial authorities adhere to a similar position: check out our material to make sure of this.

Note! A similar procedure applies if the employee is on sick leave at the time of filing the application.

Features of registration of dismissal during vacation with subsequent dismissal

When registering a dismissal during vacation with subsequent dismissal, it is especially important to comply with all the requirements for this procedure in order to subsequently avoid claims from regulatory authorities or challenging it by the employee himself.

In particular, special attention should be paid to the compliance of all key dates for this process:

The last working day in this situation is considered to be the day before the vacation, when it is last time must appear at his/her workplace;
in this case, the day of dismissal of the employee will be the last day of his vacation, that is, in the order, work book and other documents, this very day should appear as the date of dismissal.

It is worth keeping in mind that employees who are dismissed in such a situation are not subject to the right established by labor legislation to withdraw their application and return to their work duties as before. Check out our material to find out whether he has the opportunity to contact the employer with a request to change the text of the agreement between the parties reached on this issue.

The need to extend vacation with subsequent dismissal in case of employee illness

Sometimes it may happen that an employee who has already applied for leave with subsequent dismissal and then went on leave becomes ill while on leave. This situation may seem ambiguous, but the position Constitutional Court indicates that there is no need to extend the vacation in this case. In particular, this follows from the definition of January 25, 2007 No. 131-О-О, which states that the last working day in this case is the day preceding the vacation.

In turn, this means that from the moment the vacation begins, the employer does not bear any obligations to the employee who received vacation with subsequent dismissal. Therefore, the rules on the extension of annual paid leave, provided for in Part 1 of Article 124 of the Labor Code of the Russian Federation, do not apply to this employee. The same position is taken by Rostrud in paragraph 1 of letter dated December 24, 2007 No. 5277-6-1.

Recalculation of vacation pay in this case is also not carried out. However, the employer must take into account the need to pay the employee temporary disability benefits, since the employee still has such a right.

So, if he gets sick or injured before the end of his vacation, that is, the calendar date of his dismissal, such benefits are paid in the usual manner, as if he continued to officially work in this organization. This rule also applies to situations where the end date of sick leave is later than the date of dismissal.

It should be remembered that the employer will have to pay such benefits even if the employee fell ill after the date of dismissal. In particular, the right to receive it remains with him for 30 days from the date of termination of the employment relationship. However, the amount of such benefit will be determined not in the usual, but in a special manner. Read more about this in our material, where given specific example calculating benefits for such a situation.

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