There are several scenarios under which termination can occur employment contract. One of the most common wording of dismissal is: own will". Consider a special case of dismissal, namely, is it possible to quit during a 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 quit while on vacation, only by own initiative .
Termination of the employment contract initiated by the employer is possible only in a limited amount cases(Article 81 of the Labor Code of the Russian Federation):
- by mutual agreement between the employer and the employee;
- at complete elimination companies.
Rules for applying for resignation
Submitting an application for dismissal 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 the employment contract must take.
For clarity, we will present ways to submit a notice of intention to quit 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 quit 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 operate with such a term as “development”, 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.
The desire of a citizen not to work for 2 weeks upon dismissal is understandable and feasible. This can be done if you terminate the employment relationship during the vacation period. Let's analyze how to quit without working off during the holidays.
- Option one: filing a notice of dismissal at the same time as applying for a vacation or on the last day before the vacation. An important condition is that the holiday 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 settlements with 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 out 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 personnel department has time to register the application.
It will not work to quit during vacation without working off if the employee submits an application later than 2 weeks before the end of the vacation. AT this case he will have to go on his own after the vacation is over. workplace and finalize a period equal to the difference between 14 days and the remaining vacation days when he applied.
The nuances of the dismissal procedure
The dismissal procedure must comply with the norms of labor legislation and a certain procedure for implementation.
Brief algorithm of the dismissal procedure:
note
According to the Labor Code of the Russian Federation, vacation payments to an employee must be issued 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
- filing by the employee of a letter of resignation;
- issuance of an order for the organization to terminate the employment contract with the resigning employee;
- familiarization of the employee with the order under the signature. If the employee cannot sign the order due to territorial remoteness, then the personnel officer must make a note about this on the order and draw up a special act;
- compiling a calculation of payments due to a departing 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;
- issuance of a work book, certificates 2-NDFL and 4N to a leaving citizen;
- issuance to the employee of all amounts 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 next, or maternity or study leave(read about the features of providing the latter in the article)
An expert will advise you in the comments below.
The Labor Code provides officially employed individuals many ways to terminate the contracts concluded with the employer.
Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
It's fast and IS FREE!
Moreover, in most cases it protects the rights of employees, but not the employer. It is the poet that the employee can quit right during the vacation of his own free will.
Is it possible
If an officially employed employee decides for some reason to quit of his own free will right during his vacation, then the implementation of this action will not be considered illegal.
Labor Code, as well as other regulations do not contain articles that make it impossible to terminate an employment contract during a vacation by an illegal process.
But it is worth remembering that this kind of procedure has a large number of various nuances. The most important of them are the following:
- to complete the application, interrupt the vacation, make a call from it is not required;
- it is imperative to comply with the application deadlines.
A special situation is the provision of leave in advance. Making this kind of vacation on credit is possible on the basis of current legislation.
It is not required to observe any proportions between the length of vacation time and the amount of time worked. This moment is covered in the most detailed way in the letter of Rostrud dated 06/23/06.
If an employee is on vacation, there is simply no need to suspend it. It will be enough to fill out an appropriate application and transfer it to the personnel department.
Again, you don't have to do it in person. It will be necessary to send the application itself by registered mail with a list of attachments to the address of the employer.
The work book itself can also be received by mail - you just need to indicate this moment in a letter of resignation.
Highly important nuance which must always be kept in mind is the obligatory observance of the deadlines for submitting the respective application.
Under 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 vacation for the next 14 days, then this period cannot be extended.
If during the entire two-week period the employee is on vacation, then he may not return to his workplace.
If the vacation ends earlier than this period, then the obligation arises to work out this period. But this moment always remains at the discretion of the employer.
Timing
The period during which the 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 the entire period. Moreover, the countdown begins from the day when the employee submitted a properly executed application to the personnel department.
But at the same time, the period of dismissal of one's own free will during the vacation can be significantly reduced.
If the employer does not want to go to a meeting with his employee and carry out the dismissal process in one day, then you should refer to the Labor Code.
It provides for cases when the employer is obliged to carry out the dismissal procedure by the date of 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 any way;
- it is required to care for a disabled person of group I;
- retirement.
If there is a desire to quit of your own free will, but the vacation ends before the expiration of the two-week period, then you can not work out the remaining period of time based on the above reasons.
Especially often, various older people use this method of dismissal - they specially take a vacation in such a way that immediately after it they leave to retire.
Order
The procedure for dismissing an employee of one's own free will is extremely simple.
It includes the following main steps:
- writing an application in the appropriate form by the employee;
- the formation of a special order by - 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 that the funds are transferred to the account;
- the worker picks up the work book.
When writing a letter of resignation of one's own free will, there is no need to follow any specific format.
The employee of the personnel department must formalize the dismissal process accordingly. Its task is as follows:
- preparation of an order in the T-8 form, transferring 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 kind of wording was recorded in the work book.
Since sometimes, but it still happens that the management, out of a desire to harm, prescribes there some unflattering article as a reason for dismissal - absenteeism or otherwise. With such a record, subsequently, it will be extremely problematic to find a job.
Of course, this is a very serious violation of the current legislation. But until now, some employers practice such "revenge".
The work book should contain the following entry in the case under consideration: "Fired of his own free will on the basis of the Labor Code of the Russian Federation."
If, for some reason, the recording sounds different, then this should immediately go to court. Since the employer in this way seriously violates the legislation in force on the territory of the Russian Federation.
Also, a serious violation of the current legislation is the failure to return the work book on time.
How to write an application
Writing a letter of resignation is the easiest step in this process. It is compiled in free form. Can be written by hand or printed on a PC.
But it must contain the following information:
- in the upper right corner:
- name of company;
- surname, name and patronymic of the director or acting director;
- the text of the statement itself:
- Briefly worded request for dismissal, indicating the reason (optional);
- desired date of dismissal;
- in the lower part:
- Date of preparation;
- applicant's signature;
- a place for the signature of the head of the personnel department;
- place for the signature of the director / acting.
If the employee has any doubts about the honesty of the employer, then it should be mandatory to require that the document be accepted by the personnel department.
Or simply send this document by registered mail with a description of the attachment. Since there are often precedents when an employee of the personnel department simply throws the submitted application into the trash can.
In this case, it will be extremely problematic to prove the correctness in court, since there will simply be no confirmation of the submission of the application to the personnel department.
Voluntary dismissal during unpaid leave
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, to implement such a scheme simply does not work. In this case the best way out is a compromise with the employer.
Since, by agreement, the management of the enterprise can dismiss the employee in one day, in compliance with all legislative norms.
Often by various reasons(voluntarily or out of necessity) employees go on leave without pay - without saving wages.
In this case, the procedure for dismissal remains the same. It is enough for the employee himself to simply write a statement in the appropriate format.
The employer is obliged to pay monetary compensation (if any) and transfer the work book to the employee.
At the same time, it must be remembered that the employer does not have the right to dismiss an employee on his own initiative while he is on leave without pay.
It is possible to finally terminate the employment relationship with the employer during the vacation only at the request of the employee. The law allows the arbitration or bankruptcy trustee to terminate the contract with the employee upon the final liquidation of the organization and its recognition as bankrupt in court.
Foundations
Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
It's fast and IS FREE!
It is possible to terminate the employment contract due to circumstances beyond the control of the employer and employee. Their list includes:
- if the employee goes to the army or enters the organization for alternative service;
- if the employee is reinstated at the workplace by decision labor inspectorate or court;
- in case of impossibility of re-election to the position;
- conviction of an employee to administrative or criminal punishment, providing for the inability to work in the organization;
- death of citizens - the employer and employee, their recognition by the court as missing or dead;
- the onset of emergencies, disasters, major accidents, which are recognized as such by federal or local acts;
- other cases provided for in paragraphs. 8-13 Art. 83 of the Labor Code of the Russian Federation;
Dismissal during vacation implies full payment on the last working day. The employee must receive a work book, a 2-NDFL document, 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 Decree of the State Statistics Committee of 01/05/2004.
Notification
In the application, the employee can indicate the desired date of dismissal.
An employer may terminate an employee before the minimum two-week period in which the employer can hire a new employee has expired.
An application for dismissal can be submitted earlier than 14 days before the actual termination of work.
During vacation, the 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 personnel departments and the registration log has made a corresponding note about this (application registration number and date of its submission).
The employer cannot forbid quitting, but has the right to refuse to grant leave with the subsequent termination of the employment contract. The parties have the right to agree on the date of dismissal and earlier than 14 days.
Dismissal during vacation
Termination of the employment contract during the holiday period is possible. Its duration does not matter, but it is advisable to apply 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.
Of your own accord
An employee has the right to quit at any time. His only duty is to give the employer advance notice of his departure.
Forced dismissal of an employee while he is on vacation is prohibited.
By agreement
Dismissal is carried out in a contractual manner. Mutual consent of the employee and director is required.
The difference lies in the need to agree on the terms of termination labor relations, the initiative of the parties.
The note-calculation on dismissal form No. T-61 contains information on the basis for dismissal, information on vacations used, including those provided in advance.
Educational
An employee enrolled in part-time education has the right to apply for termination of the employment contract at any time, notifying the director of the enterprise or another authorized person in advance of his dismissal.
Decree
The dismissal takes place on common grounds. The mother must be paid all due vacation pay. The subsequent child allowance is assigned by the social protection authorities.
The application can be sent by letter or by presenting it in person at the Human Resources Department.
Registration procedure
Dismissal of one's own free will during the holidays is issued. After its consideration, the employer issues, draws up a note-calculation.
If the application was received from the employee during the vacation, then the employer can subsequently cancel the order to grant the vacation and accept a new order for the vacation of a shorter duration.
A memo may be attached to the order. It is necessary to cancel the initial order in order to recalculate vacation pay, and this requires documentary justification.
Preparation of documents
The personnel department is in charge of preparation. He draws up an application, gives it to the employee for signature. The draft order is also prepared by an employee of the personnel department. In the note-calculation, the exact amount of vacation pay is indicated, the calculation is based on the days actually worked.
Documents must be prepared in a timely manner - by the day the work is actually completed.
Applying
In 2019, there is no single form for resigning during vacation. It is developed by the employer. The application is submitted in person - to the personnel department or issued by registered mail.
The employee must be sure that the employer is notified that the employee is about to quit.
The employer can set the date of notification in his own way. For example, an employee in a letter will indicate one number, and an entry can be made after a few days. Such disputes are resolved privately.
Sample
The application shall indicate the name of the employer's organization, the full name of the official, the request for dismissal and the preferred date. The application shall indicate the date and signature of the employee.
If vacation is granted in advance?
The Labor Code of the Russian Federation does not indicate that vacation should be proportional to the length of service. This is indicated in the Letter of Rostrud No. 947-6 dated 06/23/2006. An employee can fully use the main vacation after six months of work.
If the leave is provided in advance, and the employee does not work it out, 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 law. The employee must notify about his departure 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 was submitted during the vacation period and the two-week period completely fell on rest days.
An employee may not comply with the warning period if he is actually unable to continue working in the employer's organization (due to leaving, joining the army and for other good reasons).
Calculation terms
Must be held on the employee's last day of work. If he cannot come for the calculation, 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 the letter of resignation, if another employee, who by law cannot be denied employment, was invited to take his place in the transfer order.
During 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 settlement for unused vacations, overpaid wages.
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 also worth paying attention to the fact that there are several types of legal rest from labor activity. Special attention are given maternity leave 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 out
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. None essential features no. Dismissal during vacation should proceed according to the following principles:
- 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.
- 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.
- 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.
- Once employment history taken, and cash 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.
- The employer draws up an act of dismissal, completes the personal file of the subordinate and sends it to the archive.
Loading...