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 upon dismissal due to at will on a general basis, the employee must warn management about this fact in 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 work, even if it falls during the vacation period. On this day the employee is given work book and make a full settlement with 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 labor responsibilities. 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 unless another employee has been invited to fill the vacant position in writing and who cannot be refused employment. 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 (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.
So that the accountant has written reasons for recalculating vacation pay, it is better to draw up new order for vacation and, based on it, fill out the calculation note again. It would not be superfluous to create an accompanying memo.
The employee is required to submit a resignation letter in writing, drawn up according to internal forms labor regulations. If there is no established template, then the application is written in free form, taking into account elementary rules 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, the 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 accrued salary for days worked in the month of dismissal and, if it is provided for in a particular case labor legislation. Vacation is paid no later than three days before it begins, the basis is a vacation order.
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 applying for leave, or he can send 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 resign without leaving your vacation, the last day of your performance of your work duties in the organization (of course, if you submit the appropriate application in a timely manner) will be considered the last day of your vacation. 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 are also paid vacation pay on a general basis. 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 lets 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 deadlines 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 application as a mandatory document required for termination of the 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.
The Labor Code provides officially employed individuals There are many ways to terminate a contract concluded with an employer.
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Moreover, in most cases it protects the rights of employees, but not the employer. This is why an employee can resign directly during vacation at his own request.
Is it possible
If an officially employed employee decided for some reason to resign of his own free will while on vacation, then the implementation of this action will not be considered illegal.
The Labor Code, as well as other regulatory documents, do not contain articles that make it impossible to terminate an employment contract during vacation by an illegal process.
But it is worth remembering that this kind of procedure has a large number of different nuances. The most important of them are the following:
- To fill out an application, you do not need to interrupt your vacation or make a call from it;
- It is necessary to comply with the deadlines for submitting the application.
The situation of providing leave in advance is special. Registration of this kind of vacation on credit is possible on the basis current legislation.
There is no requirement to maintain any proportions between the length of vacation time and the amount of time worked. This point is covered in as much detail as possible in the letter from Rostrud dated June 23, 2006.
If an employee is on vacation, there is simply no need to suspend it. It will be enough to fill out the application accordingly and submit it to the HR department.
However, again, it is not necessary to do this in person. It will be necessary to send the application itself by registered mail with a list of attachments to the employer’s address.
The work book itself can also be received by mail - you just need to indicate this point in the application for dismissal.
Very important nuance, which must always be remembered is the obligation to comply with the deadlines for filing the relevant application.
According to current legislation, it is mandatory to notify your employer of dismissal 2 weeks in advance.
But if the employee who wrote the application is on sick leave or on vacation over the next 14 days, then given period cannot be increased.
If during the entire two-week period the employee is on vacation, then at his own workplace he may not return.
If the vacation ends before this period, then the obligation to work for this period arises. But this moment always remains at the discretion of the employer himself.
Deadlines
The time period within which an employee is obliged to notify his employer of dismissal is indicated in Labor Code Russian Federation.
In fact, the duration of the dismissal process can be this entire period. Moreover, the countdown begins from the day when the employee submitted a properly completed application to the personnel department.
But at the same time, the period for voluntary dismissal during vacation can be significantly reduced.
If the employer does not want to meet his employee and carry out the dismissal process in one day, then he should turn to the Labor Code.
It provides for cases when the employer is obliged to carry out the dismissal procedure on the date of filing the application (it is important that it be a working day).
The list of such situations includes the following:
- the employee was enrolled as a student in any educational institution;
- the employer has violated labor laws in some way;
- it is required to provide care for a disabled person of group I;
- retirement.
If you want to resign of your own free will, but the vacation ends before the two-week period expires, then you don’t have to work the remaining period of time based on the reasons stated above.
Especially often, various older people use this method of dismissal - they deliberately take vacation in such a way that they can retire immediately after it.
Order
The procedure for dismissing an employee at his own request is extremely simple.
It includes the following main steps:
- the employee writing an application in the appropriate form;
- formation of a special order - it is signed by the head or other official who has the right to do so;
- the accountant calculates the company's debt to the employee or vice versa - after which the funds are transferred to the account;
- the employee picks up the work book.
When writing a resignation letter of your own free will, there is no need to follow any specific format.
The HR employee must formalize the dismissal process accordingly. Its task is as follows:
- preparing an order in form T-8, submitting it for signature to the director, his deputy or other authorized person;
- making an appropriate entry in the work book.
The second point is especially important. The employee should check as carefully as possible what exact wording was written down in the work book.
Because sometimes, it still happens that management, out of a desire to do harm, prescribes some unflattering article as the reason for dismissal - absenteeism or something else. With such a record, it will be extremely difficult to find a job later.
Of course, this is a very serious violation of current legislation. But some employers still practice such “revenge”.
The work book must contain the following entry in the case under consideration: “Dismissed at his own request on the basis of the Labor Code of the Russian Federation.”
If for some reason the recording sounds different, then you should immediately go to court. Since the employer in this way seriously violates the legislation in force in the Russian Federation.
Also, a serious violation of current legislation is failure to return the work book on time.
How to write an application
Writing a resignation letter is the easiest step this process. It is compiled in free form. Can be handwritten or printed on a PC.
But it must contain the following information:
- in the upper right corner:
- name of the organization;
- surname, name and patronymic of the director or acting director;
- text of the statement itself:
- a briefly formulated request for dismissal indicating the reason (optional);
- desired date of dismissal;
- at the bottom:
- date of compilation;
- applicant's signature;
- space for the signature of the head of the HR department;
- space for the signature of the director/acting officer.
If an employee has any doubts about the employer’s honesty, he or she should be required to put a mark on the acceptance of this document by the HR department.
Or simply send this document by registered mail with a list of attachments. Since there are often precedents when an employee of the HR department simply throws the submitted application into the trash bin.
In this case, proving the case in court will be extremely problematic, since there will simply be no confirmation of submission of the application to the personnel department.
Dismissal of one's own free will during vacation without work
There is a fairly long list of ways to avoid working out upon dismissal. But some of them are quite difficult to implement. The easiest way is to go on vacation and write a letter of resignation on time, when the vacation has not yet ended.
But sometimes, for some reason, such a scheme simply cannot be implemented. In that case the best way out is a compromise with the employer.
Since, by agreement, the management of the enterprise can dismiss an employee in one day, in compliance with all legal norms.
Often by various reasons(voluntarily or out of necessity) employees go on leave without pay - without pay wages.
In this case, the dismissal procedure remains the same. The employee simply needs to write a statement in the appropriate format.
The employer is obliged to pay monetary compensation(if they are required) and give the employee his work book.
At the same time, it is necessary to remember that the employer does not have the right to dismiss an employee on his own initiative while he is on leave without pay.
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 electronic form, 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 legal address enterprises. 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;
- title of the document;
- text containing the employee’s intention: “I ask you to dismiss me, A.A. Petrova, at your own request on May 15, 2019 (dismissal date).” 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 remaining wages, compensation for unused vacation and other amounts due to the employee.
- Issues a 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.
