Question to a psychologist 

The employee is on leave. Dismissal during vacation at will without working off

If the employee has decided to dismiss during the vacation, it is important to correctly draw up the calculation and all the necessary documents. Let's consider in the article how to quit during vacation, the terms and procedure for dismissal, as well as the amount of deductions in cases where vacation is provided in advance.

According to (Article 81), the employer does not have the right to dismiss an employee who is on vacation on his own initiative, except in cases related to the liquidation of the enterprise or the termination of the employer's activities as an individual entrepreneur.

If the initiative to terminate the employment contract comes from the employee and he informed the employer about this during his vacation, there are no legal grounds to prevent this decision. On the part of the employee, only the deadlines associated with the submission of such an application should be taken into account, and the employer must correctly carry out the dismissal procedure.

On the termination of the employment contract at the initiative of the employee on vacation, this employee must notify the employer in writing at least two weeks before the desired dismissal (part 1 of article 80 of the Labor Code). This time is provided to the employer to fill the resulting vacancy.

An exception is the situation when, for certain reasons, the employee is unable to continue working from a specific date. This, as defined in Part 3 of Art. 80 of the Labor Code, may be associated, for example, with admission to study, retirement, etc., and the employee must indicate this circumstance in his application. In the absence of such reasons, dismissal of one's own free will at an earlier date is possible only upon reaching an agreement with the employer.

Recall from vacation and refusal of a letter of resignation

When an employer receives a voluntary resignation letter from an employee who is on vacation, there is no need to withdraw it from. Not only because he currently does not have work obligations, but also in accordance with Part 2 of Art. 125 of the Labor Code, which states that recall from vacation is possible only with the consent of the employee. If there is no such consent, since the initiative to dismiss came from the employee, forced recall from vacation is impossible.

The employee has the right to withdraw his application at any time before the expiration of the period established by law - then the dismissal does not occur, unless an invitation has already been issued in writing for another specific potential employee, who, as established in Part 4 of Art. 80 of the Labor Code, as well as in a number of other laws, it is impossible to refuse in this case.

What day does the two-week warning period start from?

The letter of resignation can be handed over by the employee to the employer in person or sent by mail. The two-week notice period for dismissal is counted from the day after the employer is notified of this (part 1 of article 80 of the Labor Code).

Accordingly, if the application in question was sent by mail, the moment of its receipt is considered the day when it is properly registered with the addressee organization.

Dismissal during leave granted in advance

The employee may decide to dismiss of his own free will and during the leave, which the employer provided him in advance, i.e. before he earned the right to it. In this case, the problem arises of recalculating already paid vacation pay (part 4 of article 137 of the Labor Code).

It is important to note that a similar situation can occur not only with new employees, but also with those who, for example, have already taken their next vacation and received permission for the next one ahead of schedule, or if the vacation lasted longer than expected.

final settlement

The employer has the right (but not the obligation) to collect debts from the employee in a number of cases stipulated by law, among which is the situation of dismissal during leave provided in advance (Article 137 of the Labor Code). If there is nothing to collect the debt from, you should either sue or abandon this idea.

Collecting debts from an employee is not legal if the employee was fired for one of the following reasons:

  • due to his refusal to transfer to another job, which is required for medical reasons, or if the employee does not have such a job (clause 8, article 77 of the Labor Code);
  • in case of liquidation of the enterprise or termination of the employer's activities as an individual entrepreneur (clause 1 of article 81 of the Labor Code);
  • in cases (clause 2 of article 81 of the Labor Code);
  • when changing the owner of the organization (clause 4 of article 81 of the Labor Code);
  • in the case of military or equivalent conscription (clause 1 of article 83 of the Labor Code);
  • when restoring a former employee at a given place of work, if this restoration was made in execution of a court decision or the Labor Inspectorate (clause 2, article 83 of the Labor Code);
  • in the case when, according to the medical report, the employee is recognized as completely disabled (clause 5 of article 83 of the Labor Code);
  • in the event that an employee or employer - an individual has died or is recognized by the court as dead or missing (clause 6 of article 83 of the Labor Code);
  • in the event of the occurrence of circumstances that are recognized by the government of the Russian Federation or the authorities of the constituent entity of the Russian Federation as extraordinary, making it impossible to continue labor relations (military operations, catastrophes, natural disasters, major accidents, epidemics, etc. (clause 7 of article 83 of the Labor Code).

If the dismissal of an employee is made on other grounds, no more than 20% of each payment is subject to deduction from his salary, and the percentage is calculated from the amount from which the deducted

The dismissal of an employee when he is on vacation on vacation is possible only when the employee himself wants it. Termination of an employment contract with an employee against his will is possible only if the company is completely liquidated. Is it possible to quit during a vacation of your own free will, what does the law say about this?

The best option in the case when an employee wishes to quit during a vacation is the bilateral consent of the employer and employee. Then you can discuss the date of dismissal, suitable for both parties. An employee who is on vacation can leave at any time, as long as it does not contradict the law.

The procedure for dismissal during vacation

Once again, it is worth noting that the employer does not have the right to dismiss an employee who is on vacation, whether it is maternity leave, parental leave or main leave. In this case, dismissal due to redundancy or professional unsuitability, or for any other reason, will be illegal.

But, at the request of the employee, the organization can terminate the employment contract with him, regardless of how many days he is on vacation, and whether the employee has completed his work, project, etc.

There are two ways to combine vacation and dismissal:

  • Quit while on vacation. In this case, you will not have to return to work and work for 14 days if the number of vacation days is more than this period or coincides with it. Then you will need to come, pick up the work book and pay. If the prescribed days for rest are less than two weeks, then the employee will still have to work out the number of days that remain.
  • By applying for leave with subsequent dismissal. In the event that the employee agreed with the boss that after taking a vacation, he would no longer come, then he should be given a work day and calculated on the last working day. After the rest, he is no longer obliged to appear at his workplace. At the same time, vacation pay is paid in the usual manner, and there is no compensation for vacation days that he did not use. Thus, dismissal occurs without working off.

How to apply for dismissal if the employee is outside the city or country, has more than 2 weeks of vacation ahead, and is determined not to go to his position? In this case, there is an option to apply by letter. It is advisable to send such a document by a valuable letter, both physical and legal address of the organization. At the same time, the employer will not be able to look surprised and say that he did not receive anything.

All the same principles of dismissal apply if the employee took the leave at his own expense, or the employee took maternity leave. Dismissal can only occur at the initiative of the employee. Details and date are negotiated with the employer until a suitable option for both is reached.

Leave without pay

If desired, in order not to work out the two weeks required by law, the employee can take leave without pay. Again, this can only be done with the consent of the superior. Such an action is permitted by law, if there are good reasons for it. Which categories of employees are entitled to such leave:

- working pensioners;

— Participants of the Great Patriotic War;

Relatives of the military who were wounded or died from a wound;

- when registering a marriage, the birth of a child. If a close relative has died.

- veterans and invalids of the war;

People who combine study and work.

If there are no such grounds, and the employee does not have the opportunity to work, it remains only to try to negotiate with the employer so that the employment contract is terminated earlier, without working off. This is the most painless option for both sides.

Dismissal in Kazakhstan, Belarus and Ukraine

Such principles of dismissal are valid not only in Russia, but also in Ukraine. In a neighboring state, the employer also does not have the right to dismiss a person who is on legal leave without his consent. And, the employee can apply on his own, at any time, on vacation, on maternity leave or on sick leave.

Legislation in Kazakhstan on this issue is slightly different from Russian. There, an employee who wants to quit while on vacation must notify his superiors of his intention a month in advance. If the parties agree, then the process can be accelerated, and the dismissal will occur earlier, on the day agreed by both parties.

In Belarus, the labor law states that “by agreement of the parties” termination of employment agreements can be carried out at any time, that is, including when the employee is on vacation.

Video on the topic of the article:

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 this regard, the Russian legislation 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 the main vacation, but also maternity and additional. It should be borne in mind that the employee himself can quit at any time, having prepared all the necessary documents.

Dismissing an employee

According to the Labor Code of the Russian Federation, an employer cannot fire a person during a vacation. This can be done only after he comes out of this vacation. Even such reasons as unsuitability 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 enterprise where the person worked completely stopped its activities or went bankrupt.
  • The employee himself decided to apply for his resignation.

An employee has the right to quit 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 may be referred to the 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 the enterprise is closed for any reason, then dismissal can be made only upon prior warning. Employees must receive at least one calendar month's notice to this effect. The term can be reduced only if a compulsory bankruptcy procedure has been carried out, it must already be 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 just transferred to another company. Sometimes it happens that unscrupulous employers simply deceive their employees.

Read also The procedure and features of the division of vacation into parts

Voluntary dismissal

As it has already become clear, it is impossible to dismiss an employee who is on vacation, but the employee himself can quit at his own request at any time. Dismissal of an employee at his own request is possible if:

  • The person wrote the statement while 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 brought his letter of resignation, that is, he did it at the same time.

It should be borne in mind that the dismissal procedures are slightly different in these two situations. If the application is signed already on vacation, then in some cases the employee may no longer go to work. After the vacation 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 another week, because according to the law, you must notify about your departure 14 days in advance.

An employee can ask his employer for leave and fire him immediately. 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 wages.

Maternity leave

Many women worry that they may lose their jobs during maternity leave, because no one wants to look for a new job with a small child afterward. There is no need to panic here, as the law protects the woman in this case. The dismissal of an employee is possible only at his own request, but not at the initiative of the employer. A woman can write an application herself during her maternity leave and no longer go to work. In some cases, employers take advantage of this and try to force an 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 correctly calculating 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 resignation letter is sent to the physical address of the firm. Sometimes it happens that the actual address of the enterprise and the physical do not match. To be safe, you should send a letter in duplicate to each address, then it will definitely reach where you need it. You should also make sure that the employee receives a report 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 at all. You only need to stamp the date on the employee instance. This is done without fail, because the 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 must be taken 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 you need to give two weeks notice of your departure. Under no circumstances may an employer keep an employee at work. He must give him all the labor documents, as well as the wages due without any delay.

Do not be afraid that you will be denied dismissal when you are on vacation. This is the legal right of any employee, and is controlled by the labor code of the Russian Federation.

Dismissal without work

In some cases, the employer may release the employee from working off, 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 working off is canceled in the following cases:

  • Retirement;
  • Admissions to study at a university, technical school or college;
  • Violations of the employment contract by the 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 that 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 the illness of close relatives or an urgent move to another city.

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 the application for dismissal during the vacation period of his own free will, then there are no prohibitions on terminating the employment contract.

At the same time, in 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 period of working off for vacation days is 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.

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 worth paying attention to the fact that there are several types of legal rest from work. Particular attention is paid to the decree 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 off

Voluntary dismissal during vacation is, as already mentioned, a fairly common prospect. It is used by citizens legally. But why exactly during the period of legal rest? According to the rules established in Russia, each subordinate is obliged to notify the employer in advance 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 does not matter what kind of break we are talking about - annual 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. There are no significant features. Dismissal during vacation should proceed according to the following principles:

  1. 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.
  2. 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.
  3. 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 as soon as possible. 1 day is given for the calculation.
  4. As soon as the work book is taken away and the funds are 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.
  5. The employer draws up an act of dismissal, completes the personal file of the subordinate and sends it to the archive.