How to quit your job after sick leave. You can't fire him, you can't leave him. Can the last day of sick leave be the day of dismissal?

Dismissal after sick leave - what date? it can be formalized to avoid possible disputes about the legality of termination labor relations? The reader will find answers to this and other questions related to dismissal during and after sick leave in this publication.

Is it possible to dismiss an employee on the last day of sick leave, or while he is on sick leave?

The possibility of dismissing an employee while on sick leave depends on the reason for which the employment relationship is terminated. Reasons for dismissal can be divided into four groups:

• will of the management (Article 81 of the Labor Code of the Russian Federation);
• the desire of the worker (Part 1 of Article 80 of the Labor Code of the Russian Federation);
• mutual expression of will of the parties (Article 78 of the Labor Code of the Russian Federation);
• due to other circumstances.

By general rule, an employee cannot be fired during sick leave at the will of management (Part 6 of Article 81 of the Labor Code of the Russian Federation). At the same time, there is an exception to this rule. Dismissal is possible if the organization is liquidated.

The Labor Code of the Russian Federation allows dismissal at the request of a worker during sick leave. In this case, termination of employment relations is carried out according to general rules.

Important! Upon dismissal due to own initiative, the worker is obliged to notify management about this in advance. As a general rule, the notice period is 2 weeks. This period also flows while the employee is on sick leave.

From the letter of Rostrud dated September 5, 2006 No. 1551-6, it follows that in the case when a resignation letter is written by a worker during sick leave, last date work will be the day when the employer’s notice period expired, or the day that the worker indicated in the application (the date of dismissal must occur after the end of the notice period). Management does not have the right to force an employee to continue working beyond the notice period.

Dismissal during sick leave is also possible if the parties reach mutual agreement about this (by agreement of the parties). In addition, dismissal can be carried out on grounds that do not depend on the will of the parties, in particular due to the expiration of the term employment contract. In this case, the employee must be notified of dismissal 3 days before the date of termination of the relationship with the employer.

The above rules apply both to the entire period of sick leave and to its last day, which is also recognized as the time spent on sick leave.

What to do if a worker falls ill on the day of dismissal specified in his application?

Upon dismissal, the employee indicates the date of termination of the employment relationship in the application. If an employee previously submitted a letter of resignation, and then, on the last day before the end of the period specified in it, fell ill, the date of termination of the employment relationship will not change. The dismissal order is issued on the day specified in the application.

The employee must be notified by mail on the day of dismissal. It should indicate the need to pick up the work book and other documents, or sign an agreement that they will be sent via postal service. The letter is sent by registered mail, with a description of the attachment, as well as a notification of delivery. After receiving consent from the employee in writing, documents can be sent by mail.

What is the date to fire an employee after sick leave?

Formally, after an employee returns to work after sick leave, he can be fired on any day, on any date. At the same time, it is necessary to pay attention to various nuances:

1. If the first day of work according to the sick leave falls on a weekend, dismissal must take place on the next weekday.
2. In the event that dismissal requires advance notice employee, then the termination of the employment relationship occurs after required period will expire from the date of notification. For example, when reducing staff or liquidating a company, the worker must be notified 2 months before dismissal, and only then fired.
3. In a situation where a worker quits on his own initiative, he can be fired only after the expiration of the notice period for dismissal specified in his application (as a general rule - 2 weeks).
4. If at the time the worker returned to work the resignation letter was withdrawn, then dismiss him according to at will it is forbidden.

Thus, the choice of the date of dismissal after sick leave depends on the reasons for the termination of the employment relationship. Possible situations set out in the publication.

The dismissal of an employee must always be carried out according to the law, regardless of the reasons and circumstances of his departure. Sometimes it turns out that the dismissal of an employee coincides with his being on sick leave. Let's consider what date to fire an employee if he was on sick leave, or is on sick leave on the day of his dismissal. Situations are different, therefore, it is important to know what the legislation on dismissal tells us in a given case. At the same time, there are laws established cases when the dismissal of an employee who is on sick leave is not allowed at all. Accordingly, the last day of sick leave cannot be considered a working day, so if you want to fire an employee, sometimes you need to wait until he returns from sick leave.

Is it possible to fire an employee on the day the sick leave ends?

In order to understand when it is permissible to dismiss an employee if he is on sick leave, let us turn to the norms of the Labor Code. Its norms allow an employee to write a letter of resignation at his own request and during the period of his temporary incapacity for work (sick leave), and at the same time, an employee may, after writing a letter, suddenly become ill. Since Article 80 obliges the employee to notify the company of his dismissal two weeks before the expected date, accordingly, indicating in the application specific date, with which the employee asks to fire him, he has the right to be either on vacation or on sick leave during this period.

Therefore, regardless of the reasons excused absence employee at the workplace on the day of his dismissal, the management is simply obliged to issue an order to such an employee and dismiss him on the date indicated in the application, signed by the manager, and agreed upon. Delay the dismissal of an employee in this case illegal, unless, of course, he withdrew his application before going on sick leave, or while on sick leave. The same position is occupied federal Service on labor and employment in its clarification dated 09/05/2006 No. 1551-6. The employer has no right to demand that an employee “work out” up to the two weeks he was ill before dismissal.

Dismissal on the last day of sick leave is also permitted if the parties agree that the employee’s dismissal is scheduled for specific date, and is established in a document signed by the parties. Such an agreement can be drawn up separately from the employment contract, or it can be a written addition to it. In any case, it is important that there is a written expression of the parties’ desire to terminate the employment contract. After all, there is no other way to prove that the employee was fired precisely by agreement with the employer. If there is such an agreement between the parties, then an employee can be fired both while he is on sick leave and on the last day of sick leave.

Fired, can't be left

Employers often make the same mistake. They do not issue an order to dismiss an employee if he has not yet completed his sick leave. Perhaps this is the employer’s desire to be safe in case the employee suddenly changes his mind about quitting. But, on the other hand, a delay in the timing of dismissal may also violate the rights of the employee himself. After all, perhaps, after his recovery, he should already start a new place of work. In this case, neither the calculation, nor the payments, nor the issuance of the work book can be delayed.

That is, if the reason for dismissal is the desire of the employee himself, or the liquidation of the enterprise, or an agreement of the parties, the law allows the dismissal of an employee on the last day of his sick leave, as well as on another day, established employee, employer or law.

Another case when the law allows an employer to dismiss an employee on the last day of his sick leave is if the enterprise is liquidated (without legal succession), or individual entrepreneur ceases its activities. But in this case, the entire procedure must be followed to the letter of the law. The employee must be informed (on receipt) that he is leaving due to the termination of his employer’s activities, and at least two months in advance. It is not worth reminding that the employer must pay such an employee not only vacation pay and sick leave, but also severance pay. In addition, the employee retains labor guarantees for some time.

It turns out that if an employee is notified in advance, in writing, he can be fired both on sick leave and on the day of leaving sick leave. Dismissal occurs on the date that corresponds to a two-month period (this minimum is established) from the moment written notice employee.

Can the last day of sick leave be the day of dismissal?

To summarize, we can identify several reasons why an employee’s dismissal can occur both on sick leave and on the day the sick leave ends:

1. if the employee resigns of his own free will;
2. if the employee resigns by agreement with the employer;
3. if an employee is dismissed by the employer due to the upcoming liquidation of the enterprise (Article 180 of the Labor Code);
4. if a fixed-term employment contract has ended without a condition for its extension.

Thus, the ban on dismissal of an employee is established by law only at the initiative of the enterprise, if this is not related to the liquidation of the company. Thus, an employee cannot be dismissed under the article, or for any other reason that the law and arbitrage practice interpreted as an initiative of the employer, until the employee leaves sick leave completely. But already on the first working day after his return from sick leave, you can issue a dismissal order, carry out all the calculations with him, and also issue a work certificate. Accordingly, if this procedure is not followed, the employee has the right to demand his reinstatement and recognition of such dismissal as illegal through the court. A illegal dismissal entails not only the payment of material and moral damage the employee himself, but also administrative sanctions.

Since dismissal while an employee is on sick leave is prohibited by law, we will consider in what cases and in what order dismissal occurs after sick leave. Exist legal basis for dismissal. They are general, but can be detailed according to the situation. However, the wording of dismissal must always comply with the Labor Code of the Russian Federation. After sick leave, an employee can be dismissed at will, by agreement, or at the request of the employer. These are the three main reasons for leaving, provided by law. And, if with dismissal on one’s own, or by agreement of the parties, everything is extremely clear and precise, then the employer’s initiative is interpreted differently by law and practice.

How to resign after sick leave at will

Article 81 of the Labor Code prohibits dismissing an employee who is on sick leave. But this rule applies to cases of dismissal at the initiative of the enterprise. That is, if an employee wants to resign of his own free will, he can resign without leaving sick leave. Of course, in addition to compensation, provided for by law about vacations, he will still need to pay sick leave. But the employer is obliged to dismiss the employee at his request and upon the submitted application.

The Federal Labor Service clarified that an employer must dismiss an employee at his request, even if he is on sick leave. Or if he got sick after he wrote his letter of resignation. In this case, working the required two weeks is included in the period of sick leave. If the employee’s illness is long-term and the required two weeks of work are completed while the employee is on sick leave, the employer is obliged to dismiss him that day. In this case, there is no need to wait for the employee to return from sick leave.

Even while on sick leave, an employee has the right to write and submit a letter of resignation without going to work. The application must be sent by registered certified mail. From the moment the employer receives the application from the employee, two weeks of work are calculated. It is not allowed to transfer working days to days when the employee returns from sick leave. The law does not give the employer such a right. Besides the fact that it contradicts Labor Code, may also result in violation of human rights.

Do not forget that the order to dismiss an employee, dated by the date of dismissal, must coincide with the date of dismissal specified in work book. The employee, upon returning from sick leave, provides the employer with his sick leave, which the employer must pay. At the same time, payments for compensation for sick leave may be carried out later than all other payments. This is due to the fact that the employer needs to take into account the number of days the employee was on sick leave in order to make the correct calculations.

Is it possible to quit after sick leave?

An employee has the right to write a letter of resignation, not only when he is on sick leave, but also after it. After he returned from sick leave, he has full law established law express to the employer a desire to resign by submitting a corresponding application. If there are reasons that do not allow the employee to work the allotted time, he can refer to such a reason in the application and ask the employer to dismiss him without working. At its discretion, the employer decides to dismiss the employee on the day specified in the application.

One of the reasons that gives an employer the right to dismiss an employee without working is health conditions or working conditions that are contraindicated due to health reasons. to this employee. And transfer to another place of work for this enterprise, he simply doesn't want to. Well, this is his right, and the employer cannot prevent him from wanting to quit. Based on this, it can be argued that an employee can resign of his own free will, both while on sick leave and after leaving sick leave.

The provided right of the employee and the employer to agree on the termination of the employment contract is enshrined in Art. 78 TK. The employee can negotiate with the employer about dismissal a certain number. If he is on sick leave just at the time of the date specified in the agreement, the employer dismisses the employee on this date, without waiting for the employee to return to work. Compensation for sick leave, of course, should be paid to the employee by the company, as well as unused vacation.

How to fire after sick leave at the initiative of the employer

Under the initiative of the employer current legislature implies the following situations:

1. the employee has not completed the probationary period;
2. the employee is subject to staff reduction;
3. the employee is fired due to the complete liquidation of the enterprise or when the entrepreneur ceases to operate;
4. the employee is not suitable for the position held, as confirmed by the results of the certification;
5. the employee systematically violates labor discipline;
6. in case of violation of labor duties by an employee;
7. due to absenteeism, drunkenness at work, etc.

Also in other cases provided for in Art. 81 of the Labor Code of the Russian Federation, dismissal occurs under the article. That is, at the initiative of the employer. Regardless of the severity of the misconduct or violation on the part of the employee, the law does not allow dismissing him while he is on vacation, as well as during his illness, if he is on sick leave.

There are cases when an employee, knowing about the date of his dismissal, takes sick leave on the eve of the expected date. Here the law is still on the employee’s side. While he is temporarily disabled, he cannot be fired. If he comes out of sick leave, then it’s possible. This, of course, creates a lot of situations of abuse of employee rights. Some unscrupulous employees they manage to take six sick days in two months just to continue receiving a salary and being registered at the company.

However, if an employee takes sick leave on the day of dismissal, the courts regard this as an abuse of the employee’s right. In this case, the employer has the right not to continue with such an employee labor relations, and fire him on the same date. Although formally, an employee cannot be fired, the courts in this case take the employer’s side. This position judges is established in the Resolution of the Plenum Supreme Court No. 2 dated March 17, 2004. Based on this, the employee will not be able to resign after sick leave, since the dismissal has already taken place and is recognized as legal.

To understand whether sick leave is paid after dismissal, you need to know the rules labor law. This material will help laid-off employees understand whether they are entitled to disability benefits if they are no longer employees of the company. Paying sick leave after dismissal can be a significant help while you are looking for a new job.

The employee must adhere to the rules labor discipline and work according to a specific schedule. But a person can get sick. He undergoes an examination, receives sick leave and begins treatment. The algorithm for the actions of an insured disabled person is simple and understandable to everyone, but what if the person is no longer an employee of the company?

A sick leave certificate upon dismissal of one's own free will allows the patient, in some cases, not only to remain at home without performing job responsibilities, but also count on legal payments benefits. But can everyone get sick with subsequent pay if they have already been fired? For example, what does the law dictate if the basis for dismissal was absenteeism or inconsistency?

Dismissal and sick leave: the process of paying for a sick leave to a dismissed person

Payment of sick leave after dismissal is carried out for persons with social insurance. After a month has passed from the date of dismissal, any insured employee retains the opportunity for permanent insurance. If an employee has sick leave, he has the right to receive cash, which are due while on sick leave.

IMPORTANT: the basis for dismissal does not matter if the dismissed employee, while insured, fell ill within 30 days after dismissal. Payment for sick leave upon dismissal of one's own free will will be carried out at the same rates as for those dismissed for other reasons. The payment amount will be no less than 60% of what the employee usually received previously.

Dismissal at will while on sick leave

If you are on sick leave and decide to file a dismissal, the law does not prohibit this. After closing the ballot, bring it to the office of your former employer and they will pay you for it general principles. The period of illness will include all days of incapacity for work, regardless of whether they fall on the date before or after dismissal. It will be based on your average earnings and percentage based on length of service.

How is sick leave paid after leaving work?

If you are sick, are on official sick leave and have decided to leave the company of your own free will, you have legal right to pay for the ballot by the former employer. Dismissal during sick leave at one's own request does not deprive the employee of the right to benefits.

To get legal money for disability from former employer, do not forget to present him with sick leave within the prescribed period. The document must be provided within 6 months. But remember, if you quit and get sick, the benefit will be paid only if the illness occurred within 30 days after dismissal.

Payment of sick leave after dismissal by agreement of the parties

Those deprived of work by agreement of the parties have the right to receive money if they have already filed for dismissal, but later brought legal sick leave. The conditions for receiving payments in this situation are similar to those previously described. The algorithm of actions will be as follows:

• an employee who is unable to work is required to go to the clinic and issue a sick leave certificate
• if the illness occurred within 30 days following dismissal, former employer obligated to provide disability benefits
• A sick leave certificate filled out in accordance with all the rules must be taken to the accounting department of the enterprise or handed over to the secretary within 6 months. after the event

Thus, if an employee quits and takes sick leave according to the rules, benefits must be calculated and given to him.

Sick leave after dismissal due to staff reduction

The specifics of receiving sick leave money after dismissal during staff reduction are similar to the situation when dismissal is caused by agreement of the parties. If an employee quits and takes sick leave for illness within 30 days after dismissal, he is paid money for the period of incapacity for work.

Corrections to sick leave and recalculation of benefits

Recalculation of sick leave after dismissal is necessary if you were admitted significant error in its design. For example, the dates of incapacity for work were indicated incorrectly or the accountant made an error in the calculation insurance period for sick leave.

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