Dismissal at your own request. Everything you need to know about dismissal during voluntary leave

Did your employee decide to quit while on vacation? Then you need to properly prepare the documents and complete all calculations with him. Our colleagues from the magazine “Salary” talk about how to do this.

The Labor Code prohibits dismissing employees while they are on vacation if the initiator of termination of the employment contract is the employer (Part 6 of Article 81 of the Labor Code of the Russian Federation). An exception is the liquidation of an organization or termination of activities by an individual entrepreneur.

If the employee himself expressed a desire to resign during vacation, then labor legislation does not establish any restrictions. In this case, it is important that the employee adheres to the deadlines for filing a resignation letter, and the employer adheres to the procedure for conducting the dismissal procedure.

Notice period for dismissal

The employee has the right to terminate by notifying the employer in writing no later than two weeks in advance. This procedure is established in Part 1 of Article 80 of the Labor Code of the Russian Federation. This time is necessary for the employer to find a new employee for the opening vacancy.

Often in practice the concept of “warn” is replaced by “work”. Although even the very concept of “work before dismissal” does not exist in the Labor Code. We are talking about the deadline for filing a resignation letter - no later than two weeks.

An exception to the general rule is cases when further continuation of work is impossible and the employee must resign on a certain day. This may be admission to an educational institution, retirement and other cases when the employer is obliged to terminate the employment contract within the period specified in the employee’s application (Part 3 of Article 80 of the Labor Code of the Russian Federation).

If an employee decides to leave the company at an earlier date without good reason, then this is possible only by agreement with the employer.

The prohibition for an employer to dismiss employees who are on vacation is provided for in Part 6 of Art. 81 Labor Code of the Russian Federation. It does not apply only in two cases: upon liquidation of the organization, and also if the individual entrepreneur for whom the citizen works decides to cease its activities (Clause 1. Part 1 of Article 81).

Is it possible to resign at your own request while on vacation?

This issue is discussed in detail in Art. 80 Labor Code of the Russian Federation. An employee has the right to submit an application to the employer to resign at his own request during vacation. This must be done two weeks before the expected date. If the manager does not object, this period can be shortened if necessary (for example, if a citizen has found a new job and wants to start it as quickly as possible). The countdown begins the day after the manager signs the application. After two weeks, the citizen will be considered dismissed from the organization. Read the article on how to follow the procedure. It must be entered in the employee’s book indicating the reason.

The employee can also send the application to the manager by mail, by registered mail. After receipt, it is certified and filed with the employee’s personal file. In this case, the notice period for termination of the employment contract will begin later. In some cases, this may be inconvenient for the person leaving (for example, if he wants to get a new job as soon as possible).

Do I need to notify management about dismissal after a vacation?

According to Art. 127 of the Labor Code of the Russian Federation, an employee has the right to go on vacation with subsequent dismissal at his own request. He must first notify the employer of his decision to leave the organization. During this time, the head of the organization will have the opportunity to find a suitable employee to replace the departing one. In this case, a resignation letter is written immediately after a voluntary leave, which a person can take off completely. In this case, the last day of work will be considered the last day of rest granted.

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Based on Article 80 of the Labor Code of the Russian Federation, before resigning, an employee must work the required 2 weeks, that is, it would be correct to say, write a letter of resignation two weeks before the day of dismissal.

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It doesn’t even matter if the worker arrives at the moment on his next legal vacation. The employer must accept the application for consideration and cannot refuse it.

Cases when dismissal during vacation is possible

Vacation is not a reason for dismissal and termination of employment in the event of personal hostility of the employer towards the worker, for example, in case of professional incompetence, unfinished work by the employee, and even if a shortage is identified at the time of dismissal (if the employee is a financially responsible person). All such issues can only be resolved in court.

Possible only if:

1. The presence of a written agreement between the parties, which indicates the period of termination of employment together.
2. Forced cessation of the organization’s activities when further work activities are impossible.
3. Liquidation of the enterprise.

The employee must be notified at least 2 months before the date of the upcoming dismissal. The notice period can be reduced only in the event of bankruptcy or complete liquidation of the enterprise. However, such wording must be included in the work book.

If such an entry is not made in the labor record, one may suspect a trick on the part of officials. Dishonest employers often do this when they want to get rid of an unnecessary subordinate as quickly as possible, although in fact the enterprise continues to operate successfully.

If the employee disagrees with this verdict, he can also assert his rights. If convicted of lies and dishonesty on the part of the employer, he may file a claim in court.

Can an employer fire an employee who is on annual leave?

An employee cannot be fired during the vacation period. This is prohibited by the labor code. Dismissal is possible only upon complete liquidation of the enterprise and cessation of all activities.

However, if the employee himself expresses his will to resign during the vacation period, nothing should prevent this. The main thing is to comply with the application deadlines, i.e. 2 weeks before the expected day of dismissal. On the employer’s part, it is timely consideration of the application and conducting the dismissal procedure in an appropriate manner.

There are no restrictions in the law if an employee wants to resign while on vacation or sick leave. It is only in accordance with the law that an employee must be recalled from vacation to write and submit an application.

Options for dismissal while on vacation

An employee can resign during vacation in two ways:

1. Submit your resignation while already on vacation.
2. Write a request for leave with subsequent dismissal.

When on vacation, you need to write a letter of resignation, but two weeks before the expected day of dismissal. In this case, the employee has the right not to go to work and take all the required days off. Then, after issuing the order, appear only to receive the payment and work book.

If the vacation duration is less than two weeks, the employee will still have to work the remaining days before dismissal. If, on the contrary, the vacation is long, then there is no need to go to work. The employee by order will be dismissed 2 weeks after submitting the application, and he will also retain the right to payment of compensation for all days due on vacation.

The employee can write with subsequent dismissal, but in this case he will be left without payment of compensation for unused days, since vacation pay has already been received earlier.

At the same time, the employee may simply not go to work anymore. He is not obliged to work days of the week after vacation if the application is submitted on time, i.e. no later than 14 days before the end of the vacation period.

The employee is given legal rest once a year, and the employer does not have the right to dismiss the employee during the entire rest period. At the same time, working out the required 2 weeks after serving on vacation and when submitting an application two weeks earlier before the end of this period is not mandatory.

Dismissal procedure

The dismissal procedure is not a complex structure, but several steps must still be followed:

1. Submit an application using Form No. 8 for signature by the manager or other official.
2. Contact the accounting department to calculate debt.
3. After signing the application and the last day of work apply for a calculation, as well as your work book.

The HR department employee should take a more responsible approach to the procedure:

• prepare a dismissal order;
• take it to the boss for signature;
• make a corresponding entry in the work book.

The employee, in turn, must check the spelling of the wording in the work book, which must correspond to reality. That is, the entry was made “at one’s own request.”

It happens that managers want to harm employees in every possible way, assigning an article, for example, for absenteeism, which is completely unpleasant for the employee and can become a stumbling block in subsequent employment in a new place. Retaliation on the part of the employer in this way is a violation of the labor legislation of our country, and therefore can be legally challenged in court.

Failure to return the work book on time is also considered a violation. In case of delay, the employer may be subject to a fine in the amount of one average salary of the dismissed employee.

If the employee does not use part of the vacation, payment for unused days must be compensated by issuing an additional amount of money.

A resignation letter is allowed to be drawn up in free form, but standard rules must still be followed, i.e. On the paper in the upper right corner indicate:

• Full name of the leader or organization;
• write the word “statement” in the center;
• in the application, start with the wording “I ask you to resign at your own request”;
• put down the number and signature.

When writing an application if you are staying at home and while on vacation, it can be sent by mail to the legal address of the organization. If the legal address does not match the actual address, you can send two applications to two addresses.

The employer does not have the right to refuse the worker to accept and consider the application, although this does not mean that he must immediately sign it. He can only mark it with a tick for a while, since he still has two weeks of work ahead. Only after this period of time has passed will the application be signed without fail.

In the same way, it is not prohibited for an employee to terminate the employment relationship by notifying the employer in advance, that is, 2 weeks before the expected day of departure. On the last working day, a work book, a cash settlement, and all certificates of contributions to the insurance company must be issued.

Application rules

The application is drawn up in any form; no strict compliance is provided for by law. The main thing is to state the basis for dismissal, i.e. the desire to resign of your own free will. Reflection in the document of the motives and reasons that prompted such a decision is not at all necessary.

As a rule, employees usually need to resign urgently and without work for a really good reason, for example due to:

• retirement;
• admission to full-time studies;
• moving to another place of residence.

The reason for dismissal can be communicated to the employer orally. If there is no reaction, you should once again notify your decision in writing, which must be reviewed by an official of the enterprise (organization, firm).

If the reasons for dismissal are not clear and are not specified in the application accurately, then the document may have to be rewritten.

After reviewing and signing by the manager, an order will be issued, the approval of which the employee must familiarize himself with personally and confirm what was written by affixing his signature.

It is the last working day that is considered dismissal by law, so it is reasonable to indicate in the application the exact date when it is expected . It is advisable not to include words with a double meaning in the statement. For example, do not write down the date of dismissal as a number, but write it with the phrase “please consider it the last day of dismissal.”

In order to avoid various nuances and misunderstandings on the part of the employer, the document must be written clearly, clearly and without errors.

Calculation of a resigned employee

According to the Labor Code of the Russian Federation, payment is due:

• (if this is provided for in the collective agreement concluded earlier during employment);
• wages for all days worked;
• vacation pay;
• days of sick leave (paid in full).

Dismissal of an employee during vacation involves making a calculation on the last working day:

1. To generate the total payment amount The number of days worked over the last 12 months is taken into account. At the same time, payments that have already been made while on vacation, sick leave or on a business trip are no longer taken into account. The employee has the right only to count on compensation for unused vacation days, as well as bonuses, the calculation for which is made in proportions.
2. The basis is the number of days worked per month, for example - 29. According to the standard, this number is 29.3. In the event of a salary increase for a given period, income is indexed in relation to the new salary to the old one.
3. Next, the average wage per working day is calculated, i.e., income as a whole is divided by the number of days worked in a month, including compensation. If the vacation has not been previously used (or partially), then the salary for 1 day is multiplied by the number of those unused days.
4. The law does not provide clear regulations in the event of dismissal by agreement of the parties. The day of termination of the employment relationship is considered to be the date specified in the application. However, it is important to write the application correctly and clearly reflect all your requirements.
5. The employer is obliged, after signing this document, to issue an appropriate dismissal order., and the employee - read it and confirm his consent with a signature. Next, the document will be certified by the organization’s seal and archived.

The Labor Code is on the side of the employee in many issues, defending his rights before the employer.

This applies primarily. If the employer requires substantial grounds for dismissing an employee, the employee can do this in any case. If an application for dismissal of one’s own free will has been submitted, then the management of the organization has no right to deny this right under any circumstances. In case of any claims, it is necessary to resolve the issues only in court, but not to issue calculations and documents is a gross violation that entails a number of penalties for the enterprise.

This also applies to situations where the desire to leave work comes to an employee. It is possible to submit an application without leaving your vacation or before it begins. An important nuance is that the employee must work for 14 days by writing an application. If he goes on vacation, then this time can be counted as working time. There are several important features here that should be taken into account by both parties to the labor relationship in order to avoid violations and mistakes in the future.

A situation may also arise if the employee has a vacation period of less than 2 weeks. This usually occurs in cases where the employee has already used part of the vacation, since initially vacation is granted only if six months have been worked (in this case, 2 weeks have already been worked). In this case, if the employee wrote an application before the vacation, then the entire vacation time will be counted towards the work, and after that he will need to work the remaining number of days.

Example: an application was written on February 1, work will be provided from February 2 to 15, but the employee has vacation from February 2 to February 10. In this case, from 11 to 15 he will have to work more, and on February 16 he will have to pick up the documents and payment.

Time is calculated in the same way; if a person decides to quit while on vacation, then the remainder of the vacation (starting from the day after writing the application) will be taken into account as working time. If this is not enough, then after the vacation you will have to work out the remaining time.

Dismissal during vacation

So, is it possible to quit during the vacation period, and is it included in? Situations in life are different, and sometimes you may need to leave urgently. At the same time, management is not ready to let go of any employee at his first request. Labor legislation defines the categories of people who can quit on the day the application is submitted. But the rest must work another 2 weeks, which is not always convenient. Then the employee can try to apply for leave, if eligible.

The rules will be absolutely the same if the employee applies for his own, additional or “at his own expense”. It is quite acceptable to take additional administrative days while on annual leave. At the same time, dismissal during the vacation period or before (simply taking into account days of rest) has its own differences and nuances that should be paid attention to. The procedure is generally standard and does not have any problems.

The situation becomes more complicated only if the employee wants to leave during vacation without working off. If he belongs to the category of employees who are required to be fired on demand, then they can refuse him this. But at the same time, the employer does not have the right to interrupt the vacation, even with the consent of the employee. This is especially true for these categories - they cannot be recalled even if there is a production need. Then all that remains is to fire on the actual date indicated. If additional compensation is due, it will not be paid. But if vacation pay was previously issued that exceeds the required compensation, this overpayment will be deducted from the calculation that is issued upon dismissal.

Application Rules

You can submit a resignation letter to the HR department in one of the most convenient ways:

• personally deliver;
• send by registered mail - you must have a receipt receipt, in which case the date specified in the application will be considered, and not the date when the employer received the letter;
• transfer through an official representative - it is important to have an official notarized power of attorney.

If a person initially sent an application by mail, then it is also entirely possible to indicate a wish that the documents also be sent to him by mail.

An employee may well continue to be on leave if he decides to leave the company. To do this, it is not necessary to issue an official job review.

Simply put, if we quit while on vacation, we can write any date – it doesn’t have to be a working day.

If a person decides to quit while on vacation, or simply taking it as work, then it is necessary to draw up an application in the standard manner, indicating the following points:

• in whose name it is drawn up (the head of the enterprise, namely the employer, the name of the organization);
• who exactly is directing? Full name of the employee, as well as his position;
• requests to be fired. Article 80 of the Labor Code of the Russian Federation or any other is indicated if there are other additional grounds ();
• the date from which it is necessary to terminate the employment relationship;
• date of application and signature.

Only the article of the Labor Code and the order number are also indicated. No additional explanations or clarifications are needed. The application does not indicate that the employee is on vacation at this time or asks to take it into account for his work. All these provisions will be regulated simply by additional orders. There is no need to indicate any of this in the text of the resignation letter itself.

Registration of dismissal

Recently, at many enterprises, the program has already considered when it is necessary to issue a dismissal order and issue documents to the employee in order to avoid consequences for the company. For now, simply log into the site and use the calculation calculator to determine when you need to write an application in order to receive a calculation on a specific day. In the same way, you can calculate how many days of vacation you are entitled to if you work a certain period.

It is quite possible to combine several vacations. The design here will have 2 options:

1. Written before going on vacation. Then all documents, calculations and orders are prepared even before this and are issued on the last working day before the vacation period. In fact, this terminates the employment relationship, although the official date of dismissal is the last day of vacation.
2. The application is written directly during the vacation period. It can be transmitted in a convenient way. Labor documents, orders and calculations are being prepared for the end of the vacation. The next day after this, the person must be given all this. It is also possible to come on the last day of vacation to collect documents.

Issuance of a work book

The employee is required to issue a work book, as well as settlement payments, on the last working day.

If the application was submitted before going on vacation, then the procedure provides that the employee is given everything on the last day before the vacation. That is, formally the vacation period is considered a working period and is included in the length of service, but in fact, even before it begins, the employee will already have all the documents in his hands. At the same time, an entry is made in the work book that the last working day is the last day of vacation.

If a person wrote an application while on vacation, then (if he does not need to work off and just the vacation is included in the work) the documents will be issued to him on the first day after the end of the vacation. You must understand that this day will not be the last day for the person resigning - the employee will simply need to come to the enterprise on this day and pick up documents.

Refusal to issue documents is a gross violation that entails sanctions for the manager. If this has happened, you must contact the prosecutor’s office or court. You need to understand that it is the court that has the right to forcibly collect something from the enterprise, so it would be safer to go there straight away so as not to waste time.

Usually a person is given a dismissal order and a work book. But at the same time, if he expresses a desire to receive other documents, they must also be issued to him. This includes various orders for appointment, promotion, and assignment of a separate category or rank.

Sometimes it is possible that the employee did not do this, then the employer sends an official notification demanding that the work book be taken away. If the employee does not do this, the documents are sent by registered mail.

The Labor Code provides officially employed individuals with many ways to terminate contracts concluded with their 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 of 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 resignation letter.

A very important nuance that 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 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 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 frame within which an employee is obliged to notify his employer of dismissal is specified in the Labor Code of the 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 refer 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 cause 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 simplest stage of 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 company;
  • 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;
• in the lower part:
  • Date of preparation;
  • 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 this case, the best solution is to 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, for various reasons (voluntarily or out of necessity), employees go on leave without pay - without pay.

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 any) 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.

This point is expressly stated in the relevant section of the legislation. The only exceptions are circumstances that do not depend on the will of the parties who entered into an employment contract.

Example: if the number of foreign employees allowed by the legislation of the Russian Federation is exceeded, in such a situation the employer is obliged to reduce the number of units .

Today, voluntary dismissal during vacation is a fairly common practice.

Since in this way you can easily and completely legally avoid the need to work for a fairly long period of time (as much as 2 weeks).

You just need to remember about various important nuances - the possibility of collecting a certain amount of money from an employee by the employer and others. Quitting voluntarily while on vacation is not always beneficial.

Video: Finding the answer. Dismissal at your own request

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