Filing a resignation letter while an employee is on vacation is permitted by law.
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Termination of the contract is subject to compliance with the requirements for document flow. The search period for a new employee, which falls on vacation, prevents two weeks of work.
Is it possible
Termination of an employment contract during an employee's vacation period is permitted only at the initiative of the employee.
When submitting an application, the procedure established in the Labor Code of the Russian Federation is maintained:
- Notification shall be made in writing.
- The document indicates the basis - one’s own desire.
- The application must be submitted 2 weeks before the day of dismissal. The period cannot be extended due to the employee being on vacation. The legislation defines the period not for working off, but for finding a new employee.
The situation of dismissal of an employee while on vacation is not always perceived optimistically by the employer. The employee must have confidence that his application has been accepted by the manager or clerk.
The application is drawn up in 2 copies, one of which is marked as accepted and one form is returned to the employee.
The period is calculated from the date following the day the application is submitted. The period is calculated in calendar days.
When sending a notice by mail, the following rules are followed:
- an inventory of the contents must be included in the shipment with the specified value to confirm that the application has been sent;
- The document must be sent by letter with acknowledgment of receipt.
From the date of delivery of the letter, a two-week period is calculated. A document sent by fax in the form of an uncertified telegram cannot serve as a basis for subsequent dismissal. It is allowed to accept a telegram with the signature of the sender of the telegram certified by a postal worker.
Documents submitted to in electronic format, except for files certified by an electronic signature.
The notice of dismissal must be signed in person, with an electronic signature or certified by an authorized person, which indicates the legal force of the document.
The notification is sent to the legal address of the enterprise. If there is a discrepancy between the registration and actual addresses, correspondence is sent to both locations.
How to write
The resignation notice form must be concise and contain sufficient information.
The application does not indicate unnecessary data of an ambiguous nature. Indicated:
- position and full name of the person to whom the notification is addressed;
- name and form of ownership of the company;
- position and full name of the resigning person;
- document's name;
- text containing the employee’s intention: “Please dismiss me, A.A. Petrova, for at will May 15, 2019 (date of dismissal).” The preposition “with” before the date is not indicated.
When sending a letter by mail, the wording of the letter changes. The notice record contains the text: “I ask you to dismiss me, A.A. Petrova, at your own request after 2 weeks from the date of receipt of this document.”
If there is no expected date of dismissal in the application, the employer is based on the provisions of the law, but must agree on the date of dismissal with the employee.
The form is signed by the employee with the signature deciphered by the surname with initials and the date of preparation of the document.
Features of an application for dismissal during leave without work
An employee, having declared his intention to resign while on vacation, may not work for 2 weeks, provided:
- The vacation period lasts more than 2 weeks for permanent employees and 3 days for persons on probation.
- Dismissal is made earlier than the legally permissible period by agreement of the parties.
- Being on maternity leave.
There will be no recall from leave after notice has been given. An employee has the right to be on vacation and not go to the place of employment to transfer cases or resolve other work issues. The exception is if the day of dismissal falls on a date before the end of the vacation.
On the day of termination of the contract, which also serves as the last working day, the employer:
- Introduces the dismissal order against signature. If desired, the employee can order a certified copy of the order.
- Makes a full settlement with payment of the balance of wages, compensation for unused vacation and other amounts due to the employee.
- Issues work book with a record of dismissal and certificates for submission to other places of employment.
If the employee's dismissal day falls on a weekend or holiday, the date of termination of the employment relationship does not change. Calculation and receipt of documents is carried out on the day preceding the non-working day.
Late receipt of payment and documents upon dismissal of one's own free will may be due to the fault of:
To prevent labor disputes, a notice is sent to the employee with an invitation to appear to receive the required amounts and output documents. The shipment is issued by a valuable letter with notification and inventory.
Stop permanently labor Relations with the employer during vacation is possible only at the request of the employee. The law allows an arbitration or bankruptcy trustee to terminate a contract with an employee upon the final liquidation of the organization and declaring it bankrupt in court.
Reasons
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It is possible to terminate an employment contract due to circumstances beyond the control of the employer and employee. Their list includes:
- if an employee joins the army or joins an organization for alternative service;
- if an employee is reinstated at work by decision labor inspection or court;
- if it is impossible to be re-elected to a position;
- conviction of an employee to administrative or criminal punishment, providing for the inability to work in the organization;
- death of citizens - employer and employee, recognition by the court as missing or dead;
- the occurrence of emergencies, disasters, major accidents that are recognized as such by federal or local acts;
- other cases provided for in paragraphs. 8-13 art. 83 Labor Code of the Russian Federation;
Dismissal during vacation requires full payment on the last working day. The employee must receive a work book, document 2-NDFL, etc.
Legislation
The grounds for deduction from an employee’s salary are specified in the Labor Code of the Russian Federation - Art. 137. Unified order forms (on granting leave to an employee) are established by the Resolution of the State Statistics Committee of January 5, 2004.
Notification
In the application, the employee can indicate the desired date of dismissal.
An employer can dismiss an employee before the minimum two-week period during which the employer can hire a new employee has expired.
An application for dismissal may be submitted earlier than 14 days before the actual termination of work.
During vacation, an employee can send an application by registered mail. When contacting the director in person, you must make sure that the application has been accepted by an employee of the human resources department and the corresponding note has been made in the registration log (registration number of the application and the date of its submission).
The employer cannot prohibit resigning, but has the right to refuse to provide leave with subsequent termination of the employment contract. The parties have the right to agree on a dismissal date earlier than 14 days.
Dismissal during vacation
Termination of an employment contract during the vacation period is possible. Its duration does not matter, but it is advisable to submit an application 14 days before the end of the vacation.
Otherwise, the employee will have to work the remaining days. If all 14 days fell on all vacation days, then the employer does not have the right to force the employee to work after the vacation.
At your own request
An employee has the right to resign at any time. His only obligation is to notify the employer in advance of his departure.
It is prohibited to forcefully dismiss an employee while he is on vacation.
By agreement
Dismissal is carried out by agreement. Mutual consent of the employee and director is required.
The difference lies in the need to agree on the terms of termination of the employment relationship, the initiative of the parties.
The calculation note for dismissal, form No. T-61, contains information about the basis for dismissal, information about vacations used, including those provided in advance.
Educational
Employee studying by correspondence training, has the right to apply for termination of the employment contract at any time, having previously notified the director of the enterprise or other authorized person about his dismissal.
Maternity leave
Dismissal is carried out on general principles. The mother must be paid all entitlement leave pay. Subsequent child benefits are assigned by social protection authorities.
The application can be sent by letter or by submitting it in person to the HR department.
Registration procedure
Dismissal at one's own request during vacation is formalized. After considering it, the employer issues and draws up a settlement note.
If the application was received from an employee during vacation, the employer may subsequently cancel the order to grant leave and accept a new order for leave of shorter duration.
A memo may be attached to the order. You need to cancel the initial order in order to recalculate vacation pay, and for this you need documentary justification.
Preparation of documents
The HR department is in charge of the preparation. He fills out an application and presents it to the employee for signature. A draft order is also prepared by an employee of the HR department. The calculation note indicates the exact amount of vacation pay, calculation based on days actually worked.
Documents must be prepared in a timely manner - by the day the work is actually completed.
Submitting an application
In 2019, there is no single form for applying for resignation during vacation. It is developed by the employer himself. The application must be submitted in person to the HR department or by registered mail.
The employee must be sure that the employer is notified that the employee is about to resign.
The employer can set the notification date in his own way. For example, an employee will indicate one number in a letter, and the entry can be made several days later. Such disagreements are resolved privately.
Sample
The application indicates the name of the employer's organization, the full name of the official, the request for dismissal and the preferred date. The application indicates the date and signature of the employee.
If the leave is granted in advance?
The Labor Code of the Russian Federation does not indicate that vacation should be proportional to length of service. This is stated in Letter of Rostrud No. 947-6 dated June 23, 2006. An employee can fully use the main leave after six months of work.
If the leave is provided in advance and the employee does not work it, the employer has the right to withhold overpaid days from the employee’s calculation.
Is it possible without working out?
There is no concept in labor legislation. The employee must give notice of his resignation 2 weeks before the actual end of work. But in practice, it continues to work for the specified period.
2 weeks are not worked out if the application is submitted during the vacation period and the two-week period falls entirely on vacation days.
An employee may not comply with the notice period if he is actually unable to continue working in the employer’s organization (due to leaving, joining the army and for other valid reasons).
Calculation terms
Must be completed on the employee's last day of work. If he cannot appear for payment, then the amount is transferred by agreement with the employer at a different time.
At any time before the expiration of the two-week period, the employee may withdraw his resignation letter if another employee who, by law, cannot be refused employment, has not been invited to take his place by way of transfer.
In the event of a vacation followed by dismissal, it will not be possible to withdraw the application, since the settlement with the employee is carried out on the last working day.
Debt collection from an employee
It is possible before the actual payment for unused vacations and overcharged salaries.
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 a dismissal letter
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 completing the order, the former employee must receive a settlement.
- On the day of dismissal, the employee must be given a work book with a note indicating the reason. For example, dismissed at his own request in accordance with 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 severance pay the employee is not entitled to.
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.
Is it possible to fire a person on vacation at the initiative of the employer or the employee himself? What nuances are there? Russian legislation on this matter clearly states that the employer cannot terminate the employment relationship with the employee during this period, so the employee has nothing to fear. This rule applies not only to main leave, but also maternity and additional leave. It should be borne in mind that the employee himself can resign 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 during vacation. This can only be done after he returns from this vacation. Here you cannot even use reasons such as professional incompetence or violation of discipline. However, there are grounds on which you can still fire an employee:
- Between two sides ( employee and the employer) a written agreement has been reached. By agreement, the company and the employee are ready to terminate without any claims against each other employment contract;
- The company where the person worked completely ceased its activities or went bankrupt.
- The employee himself decided to submit his resignation.
An employee has the right to quit at any time, regardless of when the vacation began and when it ends. It also does not take into account what stage his work is at and whether it is completed. The employer does not have the right to refuse dismissal under any circumstances if the procedure is carried out correctly and all necessary documents are prepared. If there are any unresolved issues between the parties, the case may be sent to court. Such cases happen very often if an employee has not fulfilled his financial obligations and after his departure, for example, a shortage was discovered.
If an enterprise closes for any reason, dismissal can only be made with prior warning. Employees must be notified in this regard at least one day in advance. calendar month. The period can be reduced only if a forced bankruptcy procedure is carried out; it must already have been carried out at the time of notification. All these nuances are entered into the work book. However, this only happens if the company is completely liquidated and not simply transferred its assets to another company. Sometimes it happens that unscrupulous employers simply deceive their employees.
Read also Order correct calculation maternity leave start dates
Dismissal at your own request
As it has already turned out, it is impossible to fire an employee who is on vacation, but the employee himself can resign of his own free will at any time. Dismissal of an employee at his own request is possible if:
- The man wrote a statement while he was already on vacation. You can do this both on the first day of your vacation and on the last. There are no restrictions in the Labor Code of the Russian Federation;
- The employee asked for leave and immediately submitted his letter of resignation, that is, he did it at the same time.
It is worth considering that the dismissal procedures are slightly different in these two situations. If the application is signed while on vacation, the employee in some cases may no longer go to work. After the vacation ends, you must receive a signed order and wages.
Important! If the vacation lasts more than a month, then you will no longer have to return to work. If the vacation, for example, lasts a week, then you will need to work another week, because according to the law, you must give notice of your departure 14 days in advance.
An employee can ask his employer to grant him leave and fire him on the spot. In this situation, the day of termination of the contract will be considered not when the vacation ended, but when it began. That is, it is this date that is recorded in the work book and it is on this day that the employee is paid a salary.
Maternity leave
Many women worry that they may lose their jobs during maternity leave, because no one wants to look for new job with a small child. There is no need to panic here, since the law protects women in 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 resign during maternity leave, you must obtain a written agreement with the company where the employee works, or send your resignation letter to the employer by mail. It is worth noting here that being in maternity leave completely relieves the employee of the need to work the required two-week period.
Read also How to correctly calculate vacation if it falls on a holiday
Submission of documents
If a person decides to quit his job during his vacation, he needs to know some nuances. The resignation letter is sent to the physical address of the company. Sometimes it happens that the actual address of the enterprise and the physical one do not match. To be on the safe side, you should send the letter in duplicate to each address, then it will definitely reach where it is needed. You should also ensure that the employee receives a report indicating that the letter was received. In this way, you can avoid deception, because the employer can say that he simply did not receive anything.
By the way, the employer does not have to sign the application. You just need to put a date stamp on the employee’s copy. This is done without fail, because the period of 14 days is counted from that very date. If it is not marked, then this action may be considered a violation of the Labor Code of the Russian Federation. This nuance must be taken especially carefully.
IN labor code it is clearly stated that the employee can terminate the contract with the company in which he works at any time, and the employer cannot refuse him. The only condition is that you must give notice of your departure two weeks in advance. Under no circumstances may an employer retain an employee in the workplace. He must give him everything labor documents, as well as the required wages without any delays.
There is no need to be afraid that you will be refused a job while you are on vacation. This legal right any employee, and this is controlled by the Labor Code of the Russian Federation.
Dismissal without work
In some cases, the employer may 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. The two-week work period 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 a court or after an examination by a special inspection. The fact that an employee simply does not agree with the decision of his superiors is not considered a violation. Some cases, by the way, are considered on an individual basis. Sometimes you can count on early dismissal due to the illness of close relatives or an urgent move to another city.
The legislation does not provide for the option of dismissing an employee on vacation at the initiative of the employer (Article 81 of the Labor Code, Part 6), with the exception of the liquidation of an operating organization or termination of the activities of an individual entrepreneur.
While on vacation, the initiative to quit can come from the employee and he has all the rights to do so. It turns out that if an employer wants to fire an employee who is on vacation, he is obliged to wait for him to return from vacation. The worker himself has the right to resign while on vacation, but the deadline for filing an application must be met.
Notice period
The Labor Code states that when resigning at his own request on a general basis, the employee must notify management about this fact in writing in advance, in this case two weeks before the desired date of departure (Article 80 of the Labor Code, Part 1).
Vacationers need to submit an application 14 days before the end of the vacation (the main thing is that the vacation is more than two weeks, otherwise after it you will have to stay at work until the end of the two-week notice period), during which time the employer must find a replacement for the vacant position.
According to the third part of Article 80 of the Labor Code, employment relationships can be terminated earlier than two weeks, i.e. the date indicated in the application by the employee, if he:
- retires (for the first time);
- enrolls in studies;
- agreed on the date of departure with management;
- when transferring the employee's spouse to work abroad, to another location;
- in case of violation of labor legislation by the employer.
Important! To ensure continuity of work, the employer may require the employee to “work” two weeks after the end of the vacation. Such actions on the part of management are unlawful.
We quit while already on vacation
Most likely, vacationers will not have the opportunity to personally submit a letter of resignation to the HR department of their own free will. They can send it by registered mail. Then the starting date of the working period (14 days) is considered to be the next day after the employer receives this letter (Article 80 of the Labor Code, Part 1).
The latter is obliged to register the application in the journal of incoming documents and give it an incoming number. The official date of departure is the final day of the 2-week period of service, even if it falls during the vacation period. On this day, the employee is given a work book and full payment is made to him.
Note: The employer does not have the right to recall an employee from vacation on the day of receiving his resignation letter, because at this moment the employee does not fulfill his job duties. Revocation occurs only with the consent of the worker (Article 125 of the Labor Code, Part 2).
Before the end of the work period, an employee on leave can withdraw his application at any time and return to his job. Dismissal in this case will not occur if another employee has not been invited in writing to fill the vacant position and who cannot be refused to conclude an employment contract (Article 80 of the Labor Code, Part 4). During the period of vacation followed by dismissal, you can pick up a resignation letter only before the day of the vacation.
Vacation followed by dismissal
An employee, at his own request, on a general basis, can simultaneously write two applications - one for dismissal, the other for vacation, i.e. You'll get rest followed by care. The employer has the right to refuse to provide an employee with leave with further dismissal; such an obligation is not assigned to him by law.
Rest followed by dismissal can only be obtained as a result of agreements with the manager; the employee’s initiative does not solve anything here.
If the boss has given his permission, then the date of dismissal will be the last day of vacation. Documents are issued and payments are made on the last day worked before going on vacation.
Vacation as an advance
Following the law, employers do not have the right to provide leave of a certain duration in proportion to the time worked. Only after 6 months a worker can use all 28 days of annual paid leave (Article 115 of the Labor Code, Article 122 of the Labor Code).
By agreement with management, the employee has the right to go on vacation before six months have passed since the conclusion of the employment contract (Article 122 of the Labor Code). The following categories of persons can do so upon request:
- those who adopted a child under 3 months of age;
- employees who are under 18 years of age;
- pregnant women before maternity leave, women after it.
Both newly arrived and existing employees fall under these categories, i.e. the employer is not insured against an employee going on vacation who has not yet received the necessary length of service for this (has not worked for half a year). Part-time employees are provided with annual paid vacation in parallel with vacation from their main job. If a worker in a secondary job has not earned 6 months or more of work experience, then he may be given leave in advance.
Annual paid vacations for the 2nd and subsequent years of service are provided according to the vacation schedule at any time of the year (Article 122 of the Labor Code).
Dismissal at your own request during the vacation period, which was provided in advance, is possible. Just from the amount due payments upon dismissal, excessively used vacation pay will be deducted (Article 137 of the Labor Code). Arrears of advance leave are withdrawn from the employee’s salary in the cases described in Article 137 of the Labor Code.
Important! On his own initiative, an employee has the right to terminate an employment contract while on vacation, regardless of what kind of vacation he is on, be it maternity leave or maternity leave.
Paperwork
The basis for going on vacation is a generally accepted order or a sample document independently developed by the company is used. Then they draw up a note-calculation (or arbitrary). An employee, on his own initiative, may submit a letter of resignation before the end of his vacation. If management is okay with this, then:
- the originally created vacation order and settlement note are cancelled;
- a new calculation note and an order for a new vacation are issued;
- An accompanying memo is drawn up.
Despite this, the law does not provide for the need to cancel the original order and create a new one in accordance with the new conditions.
In order for the accountant to have written reasons for recalculating vacation pay, it is better to draw up a new vacation order and, based on it, fill out the calculation note again. Will not superfluous creation accompanying memo.
The employee is required to submit a letter of resignation in writing, drawn up in accordance with the internal labor regulations forms. If there is no established template, then the application is written in any form, taking into account the basic rules of office work.
Based on the application, a dismissal order is drawn up, which is handed over to the employee for review and signature.
Cash settlements
Difficulties for the employer arise when excess vacation pay is paid to the employee. The Labor Code limits the situations in which a debt can be collected from an employee. Debt retention is an employer's right, but not an obligation.
In cases where there is nothing to withhold the debt from, they forget about it or sue the debtor employee. Before taking measures to collect overpaid funds from your salary, it is worth familiarizing yourself with the grounds for dismissal, because some of them, at the legal level, do not give the employer the right to make deductions, namely:
- disappeared unknown, death of an employee or individual employer (Article 83 of the Labor Code);
- an emergency has occurred (war, catastrophe, calamity, etc.) (Article 83 of the Labor Code);
- the employee became professionally unsuitable according to medical conclusion (Article 83 of the Labor Code);
- the court or labor inspectorate reinstated the employee to his previous place or area of work (Article 83 of the Labor Code);
- dismissal due to military or alternative civil service (Article 83 of the Labor Code);
- the owner of the company’s property has changed, this applies to the chief accountant, manager and his deputies (Article 81 of the Labor Code);
- liquidation of an organization’s activities or closure of an individual entrepreneur (Article 81 of the Labor Code);
- companies, individual entrepreneurs (Article 81 of the Labor Code);
- the employee refuses to transfer to a job that suits him according to a medical report, and the employer does not have such a job (Article 77 of the Labor Code).
For other reasons for dismissal not described above, a maximum of 20% of the salary is withdrawn from the debtor for each payment. The object of recovery of salary is taken minus personal income tax.
Compensation payments for unused vacation are calculated similarly to vacation pay. Together with them, the employee is paid a salary for the days worked in the month of dismissal and, if in a particular case it is provided for by labor legislation. Vacation is paid no later than three days before it begins, the basis is a vacation order.
