Dismissal on a day off: registration procedure, what is the date of the order

Normative base

To understand where work on a day off can come from, you need to refer to the procedure for calculating wages and find out how to make a dismissal on a day off and when to pay the salary.
The legislator allows enterprises to choose a payment system, for example, if production conditions require assigning shifts or working on weekends or holidays. The payment for such an organization of labor is quite equivalent - an employee who has written an application for termination of employment relations can count on the final payment under Article 140 on a non-working day.

The Labor Code states that the last day of work is the day of dismissal. On this date, the citizen still formally performs his duties and fills out a bypass sheet. There is no clear reference in the law as to which day may be selected for final settlement. Therefore, the opinion that it is impossible to fire someone on a day off is hasty and even erroneous.

https://youtu.be/yFMIPk9zdGU

Dismissal on a day off when the company management is not working

As we have already found out, it will not be difficult to receive a paycheck and work book on an employee’s day off. But things are more complicated if the final day of the labor relationship falls on a day off for the company’s administration. If an accountant and/or an HR department employee has a day off, you cannot call them to work to fire an employee (see Part 1 of Article 113 of the Labor Code of the Russian Federation).

At the same time, labor legislation does not allow transferring the responsibility for paying wages to another day, which means that the work book and wages must be issued on the day of dismissal. Accordingly, the management of the company is obliged to involve an employee of the accounting department and personnel department in the work. But in this case, in order not to violate the requirements of the law, they will have to be compensated for their work on a day off

(see part 1, 3 of article 153 of the Labor Code of the Russian Federation):

pay double for work on a day off;
or provide an additional day off on another day (at the employee’s choice).

Step-by-step registration instructions

The content of part three of Article 84 of the Labor Code does not contain a clear requirement regarding when employees should be counted - on a working or non-working day. It turns out that a day off is quite suitable for dismissal and issuance of a book with records of the place of work. There are cases when the employer is prohibited from changing the date of exclusion of an employee from the lists of the enterprise. For example, when a legal entity is on the threshold of organizational and staffing measures. If you do not dismiss the employee within the period established by the decision of the general meeting of shareholders and duplicated in the notice, the employment relationship is considered to continue. In this case, the dismissal procedure must be repeated again.

If a company employee does not come to work on his day off and he must be fired, the administration will have to follow the following action sequence:

An application for termination of the employment contract is drawn up. Particular attention is paid to clarifying the grounds for dismissal on a day off, the visa of the head of the unit;
An order is issued, the text of which indicates the personal data of the employee, the basis for exclusion from the staff and the date. The employee familiarizes himself with the administration's order against signature;
The work book is filled out, pay slips are prepared for payment;
Payment and dismissal on Sunday when to pay.

This is also important to know:
How to fill out a work book correctly and without errors

Among the nuances when dismissing on a day off is the employment of a new citizen. If the former employee is not expelled, an order is not issued, or changes are not made to the work book, the position cannot be held. This must be done if there is no agreement with the employee to postpone the dismissal procedure to a working day for the administration.

At your own request

According to Article 80 of the Labor Code of the Russian Federation, when leaving - dismissal on a day off at his own request, the employee must notify the employer 14 days in advance.
The end of the working period may fall on a weekend or holiday. To avoid conflict situations, it is recommended to agree with the employee so that he draws up a new application indicating the date of departure on a working day.

If he does not agree to postpone the moment of termination of the agreement, the order is issued the next day after the rest. There may be a problem when an employee has to go to a new place on Monday, so a compromise will need to be sought.

It happens that an employee’s dismissal occurs during holidays that last for several days in a row. If you act according to the rules of Article 14 of the Labor Code of the Russian Federation, this will delay the preparation of documents. It is possible to issue an order in advance with a dismissal date on holidays.

Example 1. 04/28/2018 I.N. Lyutikova submitted her resignation of her own free will, without entering the date of termination of the contract. The end of the two-week working period was on Saturday – 05/12/2018. She refused to reschedule her departure date. Since she needed to go to a new place from May 14, 2018, in agreement with the management, she was fired on May 11, 2018. The order indicated 05/12/2018 as the date of termination of the agreement.

However, the employee retains the right to withdraw the application within a 2-week period. In this case, the order will need to be canceled and adjustments made to the work book, since the employee retains the right to a workplace.

You should know! If the dismissal is formalized in advance, the employee must be fully paid off before the weekend. Otherwise, the employer will be held liable for the delay in issuing wages and work books.

At the initiative of the employer

The reasons for dismissal at the initiative of the employer are listed in Article 81 of the Labor Code of the Russian Federation. It is important that the contract termination procedure is followed and supporting documents are prepared (for example, an internal investigation report, a notice of warning to employees about staff reduction).

In case of staff reduction or liquidation

If you plan to dismiss an employee due to staff reduction or liquidation of the company, you need to warn him about this two months or earlier. In the case where the two-month period expires on a weekend, with a 5-day work week, the order is signed on Friday. The document will include a later date for the employee’s dismissal, falling on Saturday or Sunday.

This is also important to know:
Dismissal at will: article of the Labor Code

Example 2. 07/31/2018 I.E. Ustinova received notice of dismissal due to staff reduction. The two-month warning period expired on Saturday 30.09.2018. The order was prepared on Friday - September 28, 2018, and September 30, 2018 was indicated as the date of termination of the contract.

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For a disciplinary offense

For such grounds as dismissal for disciplinary misconduct, the obligation to notify the employee is not established.
Therefore, the employer has the right to choose the next working day. If he took care of evidence of misconduct, the dismissal of the employee from his position will be lawful. Example 3. E.A. Petrov systematically violated labor discipline. The immediate manager submitted three reports on absenteeism to the director of the LLC company in the period from 09.10.2018 to 09.12.2018 with an attached report drawn up by a commission of three people. On September 13, 2018, the employee was given a written notice with a request to provide an explanation for the facts of absenteeism within two days. On Friday, September 14, 2018, by the end of the working day, E.A. Petrov provided written explanations. He did not come to work because he was intoxicated. On Tuesday, September 18, 2018, the employer terminated the contract with him on the basis of Article 81 of the Labor Code of the Russian Federation.

Dismissal on a weekend or holiday by agreement of the parties

When the parties agree, the same rule applies as when dismissing at will: the date specified in the agreement is of key importance. But the working period does not apply in this case.

The date of dismissal by agreement of the parties is determined by the employee and the employer by agreement.

In practice, it is easier for the person being dismissed and the employer to agree that the date of dismissal falls on a working day. The law does not limit them in this way.

During the 2008 crisis, my employer was forced to urgently lay off two thirds of its employees. He suggested that those being dismissed leave by agreement of the parties. Since the difficult financial situation in the company was not a closely guarded secret, and the director had a good relationship with the owner, and we also knew that he took out a loan secured by the apartment to pay us, everyone agreed. The calculation and work books were given to us immediately after signing the agreement, on the same day.

On vacation and sick leave

If a citizen is on vacation or undergoing treatment, this situation applies to cases when he does not work, but his position is retained. Therefore, it is allowed to set a day off as the date of dismissal.

Important! The contract can be terminated without his presence only if he has written a letter of resignation of his own free will. In a situation where the dismissal is initiated by the employer, you will need to wait until the employee returns to work.

Special occasions include leave with aftercare. According to Article 127 of the Labor Code of the Russian Federation, the final day of rest will be recognized as the date of departure, even if it falls on rest. The final payment is made to the employee before the vacation. At the same moment he is given a work book. After going on vacation, it will not be possible to withdraw the application, since the employee’s job is not retained.

This is also important to know:
Work upon dismissal: in what cases is it necessary and in what cases can it be avoided?

Example 5. 04/28/2018 A.N. Kazantsev wrote a letter of resignation of her own free will, without indicating the date of termination of the contract. The end of the 2-week work period was on Saturday – 05/12/2018. On 05/07/2018 he went on sick leave until 05/18/2018. The employee did not withdraw the application. The order was prepared on May 11, 2018. The contract termination date was 05/12/2018. After completing the treatment, the employee brought the sick leave certificate to the employer. They made a calculation for him, gave him a work book, paid sick leave.

Due to the expiration of the employment contract

If a fixed-term employment contract has been signed with an employee, then the date of its termination may fall on vacation. In practice, two options for dismissal on this basis are used.

You can place an order on the next working date before your vacation. In this case, the employee should be notified about the expiration of the contract three days before dismissal. The order is signed on Friday; Saturday or Sunday is indicated as the date of release from office.

Most experts are of the opinion that an employee should be fired on the first day after rest.

Example 4. N.N. On June 29, 2018, Stepanova entered into a temporary employment contract with the LLC company for three months. It was supposed to expire on Saturday, September 29, 2018. The employer warned him about the expiration of the contract on September 25, 2018. Since the end date fell on a weekend, the order was signed on October 1, 2018.

Dismissal of employees working on schedule

For some professions, a shift schedule is established. There may be situations when a day off coincides with a working day, and for the employer it is a day off.

Rostrud, in Letter No. 863-6-1 dated June 18, 2012, explained that the final working day is recognized as the date of termination of the contract, regardless of whether it coincides with rest. The dates for signing the order and dismissal will be identical.

To fill out the documents, it is recommended to involve a personnel employee to work on days off with his written consent.

Example 6. S.T. Barashkova works in a medical institution on a shift schedule. On April 28, 2018, she wrote a letter of resignation of her own free will. The two-week work period ended on Saturday, May 12, 2018, which is a working day according to the shift schedule. She refused to postpone the moment of leaving. The employer hired a human resources specialist and a financial accountant to work on Saturday with their written consent. S.T. Barashkov was paid off and given a work book. The order was signed on May 12, 2018.

Termination of a contract in the absence of an employee

In practice, it happens that an employee who is on vacation or sick has to be fired. He has the right to notify him of his desire to stop working by registered mail. By law, presence at the time of dismissal is not required if there is proof of incapacity for work. In practice, situations where an employee does not go to work for a good reason within the two-week period established for work are not uncommon.

What to consider in this case:

the counting of working days begins from the next date after receipt of the application;
the order must be made on the day specified in the application;
Payment must be made before the weekend.

This is also important to know:
Forced dismissal: how an employee should behave, what threatens the employer

Upon completion of registration, a copy of the order and a notification that the documents have been prepared and can be picked up are sent to the employee’s address.

It must be taken into account that correspondence takes time to reach the addressee. Therefore, it is better for the employee to warn about his intention before going on vacation and agree on a date.

Dismissal on a weekend or holiday when they are postponed

The transfer of working days to weekends is often practiced on the eve of public holidays: February 23, March 8, May 1 and 9, June 12 and November 4. The point of such postponements is to give Russians a longer rest on the holiday itself. For example, if March 8 falls on Thursday, the working day may be moved to the previous Saturday. If the date of a public holiday falls on a weekend, the Monday following it is usually considered a holiday.

In case of dismissal on such dates, the rule is simple. The day off to which the authorities have postponed the working day is considered a working day; the worker, after the transfer of the day off to it, becomes a full day off.

How to dismiss at will if the dismissal date falls on a weekend?

When dismissing a subordinate, the manager is obliged to scrupulously observe his rights.
Article 84.1 of the Labor Code of the Russian Federation indicates that the labor relationship between a subordinate and the management of the company can be terminated, either on the final working date, or during the period when the person leaving the enterprise still has work. The dismissal of a subordinate on the day before a day off or a holiday, if the final day turns out to be a day off, refers to a violation of his right to cancel his intention to resign from work before the final day of work.

On the other hand, deduction later than the day worked may be found illegal. It is possible that the next day after work, the person needed to arrive at a new company, and this was not provided to him.

In judicial practice, judges in matters of terms of resignation are guided by Art. 14 of the Labor Code of the Russian Federation, in part 2 of which it is noted that if the final day of work turns out to be a weekend or holiday, the dismissal of a subordinate on the next working day will be legal (determination of the Arkhangelsk Regional Court of Appeal (JSC) in case No. 33-3916 of 08/11/2014) .

At the same time, the dismissal of a subordinate on a day off or on a holiday according to his will is also allowed. The main thing is that the employer manages to organize the issuance of the necessary certificates, work books and pay slips on this day.

In this case, in order to avoid getting into trouble, it is best for the manager to contact the employee with a request that he change the petition and display in it the date of resignation on a working day.

Note. The law does not prohibit issuing an order on the eve of the expulsion date (coinciding with the day off), however, dismissing a person and the entry in the work book about the expulsion must be marked as a day off, and certificates and payslips will need to be issued on the day before the day off. Similar judicial practice is reflected in JSC Altai Regional Court No. 33-9680/2013 dated November 26, 2013. The only risk in this option is the possibility of canceling the dismissal order if the specialist changes his mind about leaving.

Thus, to summarize, it can be noted that if the date of dismissal after work turns out to be a day off or a holiday, the manager can issue such an order. The main thing is to organize the timely issuance of a work book and all payments to a person.

Order date

According to current legislation, namely Article 84 of the Labor Code, it is impossible to dismiss an employee on a day off. The date of termination of employment should be postponed to the next working day (next). If the situation reaches a dead end and the employee decides to quit on a day off, you can still adjust the date due to working hours, making it, for example, not 14, but 12 days. This right is enshrined in Article 14 of the Labor Code.

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Termination of contract due to absence of employee

Practice shows that sometimes you have to fire an employee who is on vacation or sick. The employee can notify the employee that he wants to leave his position by registered mail. The law states that an employee may not be present in person if he has proof that he is incapacitated. In fact, often an employee does not have the opportunity to work for two weeks after submitting an application. In this case, you should proceed like this:

It should be remembered that the calculation of days for working off begins from the very moment the application for dismissal was submitted.
The order can be made on the day indicated in the application.
Payment is made before the weekend.

This is also important to know:
What to do if the employer does not sign the resignation letter

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As soon as all the nuances are taken into account and completed, a copy of the order and a notification are sent to the employee’s address that the documents are all ready and can be collected. It is also taken into account that it takes a certain time for the notification to reach its addressee. It is best if the employee warns in advance about his intention to leave and chooses a suitable date for this.

Payments

Regardless of the date of termination of the employment relationship, the employer remains obligated to pay accruals due on the day of dismissal:

Wages calculated in proportion to the time worked;
Compensation for vacation days that were not used by the date of dismissal;
Severance pay in cases established by law or internal regulations of the company. The specified payment is calculated based on average earnings;
Other payments provided for by corporate agreements.

Is it possible to fire a person on a day off at the will of the employer?

The expulsion of a subordinate at the initiative of management always involves the risk of violating the rights of the expelled employee.
In judicial practice, many questions arise when dismissing a layoff specialist. If, after 2 months of notifying a specialist about his layoff, the date of dismissal turns out to be a day off, the courts most often believe that managers are not obliged to wait for a working day - a subordinate can be dismissed on a day off if the date of notice of layoff coincides with it (JSC Moscow City Court for case No. 33-33807/2015 of 09.18.2015, in case No. 33-25487/2014 of 09.30.2014). At the same time, there is a court decision that declared such deduction unlawful with reference to Part 2 of Art. 14 of the Labor Code of the Russian Federation (JSC Moscow City Court No. 33-42101/2015 dated November 30, 2015).

There is also a ruling of the Leningrad Regional Court No. 33-195/2014 dated January 15, 2014, regarding dismissal on a day off due to failure to complete the probationary period. The court recognized the legality of expelling a subordinate on a day off, but the court of first instance considered such expulsion unlawful.

(Video: “To work instead of a holiday - Elena A. Ponomareva”)

Thus, today in the legislative norms of the Russian Federation there is no clear definition of how to act in such situations and whether it is possible to expel a subordinate on a day off at the will of management. To avoid such problems, it is best for the manager, before notifying the person about the layoff, to look at the calendar and send the notification on a day so that the date of dismissal does not coincide with a weekend or holiday.

Calculation of due payments

The main types of wages upon dismissal on a day off are compensation for unused vacation and wages for hours worked after the last scheduled payment.

For example, an employee of organization N with a salary of 25,000 rubles and an average daily earnings of 900 rubles wrote a letter of resignation. At the time of his application, he had unused vacation and work time left. Due to his illness, he cannot come, so he sent a letter of application by registered mail. He should be compensated for leave of a standard duration of 28 days and 9 working days. The payment will be 900*(28+9) =33300 rubles.

When should payment be due for dismissal on a day off?

The same should be done with the work book and other work-related documents that the employer is obliged to provide to the employee - they must be given to the employee before going on vacation, i.e. on the last day of work. This conclusion also follows from the Determination of the Constitutional Court of the Russian Federation dated January 25, 2007 N 131-О-О. In other words, in fact, the employment relationship with the employee terminates from the moment the vacation begins. That is why, in accordance with Part 4 of Art. 127 of the Code, an employee who has been granted unused leave with subsequent dismissal on his own initiative does not have the right to withdraw his resignation letter after the start of the leave, even if it is only the first day of leave. During illness during the period of leave with subsequent dismissal, the employee is paid temporary disability benefits , however, in contrast to the general rules (Art.

Dismissal on a weekend or holiday when rescheduled

Everyone knows very well that often a holiday that falls on a day off is transferred to a working day. The point of such transfers is the opportunity for people who work to have more rest. For example, the date of the holiday falls on Saturday or Sunday, in which case Monday will also be considered a day off. What to do if you are fired on such a day? Everything is very simple here. The day off to which the working day was postponed will be considered a working day, and the working day after the postponement will be considered a day off.

date

Taking into account the laws, namely Article 84 of the Labor Code, it is impossible to fire an employee on a day off, so the date for severing the employment relationship is postponed to the next working day. If for some reason an employee demands that he be fired on this particular day, then the date can be adjusted due to working hours, for example, not 14 days, but 12; you can exercise this right, in accordance with Article 14 of the Labor Code.

Calculation

Regardless of the date of termination of the employment relationship, the employer has the obligation to pay the payment due to the employee. The calculation includes:

Salary for hours worked.
Compensation for back holidays that the employee never took.
Severance pay, if there are company regulations. Such payments are calculated from average earnings.
Payments provided for in the corporate agreement.

The main type of salary that is paid upon dismissal is compensation for vacation that was not used. The time worked after wages, which were paid according to the plan, is also taken into account. For example, an employee who had a salary of 25,000 receives 900 rubles on average per day wrote a letter of resignation. At the time he approached management with it, he had unused vacation and work time left. Considering that he could not come to his place of work due to illness, he sent the application by registered mail.

When to make payment upon dismissal

The work book and other documents must be issued to the employee on the day of his official dismissal. Even if an employee first goes on vacation and then resigns, all documents must be provided to him before going on vacation. Naturally, in this case, the employee will not be able to withdraw his application, even if his first day of vacation begins.

Termination of contract with employees with privileges

The Labor Code of the Russian Federation describes situations when the employer is obliged to formalize dismissal on the day the application is submitted. We are talking about situations where an employee may not give notice of his intention to terminate the employment agreement, for example, when retiring or being called up for service.

This is also important to know:
Dismissal in the event of bankruptcy of an enterprise: dismissal of employees in the event of bankruptcy of an organization

Based on Art. 14 of the Labor Code of the Russian Federation, if the date specified in the employee’s application is a day off or an official holiday, then the employer has the right to complete all paperwork on the next working day. However, there are situations when there is no time to wait, for example, a conscript needs to arrive at the appointed place on Monday, but he works until Saturday inclusive. In this case, by special order of the manager, all persons responsible for issuing the work book and the final payment are involved in performing duties during non-working hours.

What to do if the expiration date of a fixed-term employment contract falls on a non-working day?

According to the established norms of labor legislation, the date of termination of a fixed-term employment agreement is generally considered to be the date of its expiration. This rule is reflected in Article 79 of the Labor Code of the Russian Federation.

If the expiration date of the document falls on a weekend, HR specialists must follow the standard rules for terminating contracts. In this case, special attention should be paid to one point.

In a situation where the end of the employment agreement coincides with a weekend, the date of dismissal is considered to be the working day following the weekend.

For example, the expiration date of a fixed-term contract is Saturday, the 5th. The date of dismissal in such a situation will be considered Monday - the 7th.

Additional questions

If the day of dismissal falls on a weekend, when should the amounts due upon termination of the contract be paid?

As in the situation described above, it is recommended that all payments be made on the eve of the employee’s last day of work - on the last working day.

If the last day of work upon dismissal falls on a day off that is part of the New Year holidays

A fairly common situation is dismissal after a notice period (so-called working off), which ends on Saturday, Sunday or a holiday. According to the rules, the employee notifies in writing that he wants to terminate cooperation at least two weeks in advance (in some cases, three days or a month). This notice period is beneficial to the person resigning, since he can change his mind during this time and withdraw his application. The employer can select a new employee within these two weeks.

But some write the application specifically so that the notice period coincides with the New Year holidays, for example. Since the Labor Code of the Russian Federation does not oblige work during this period, the long New Year holidays replace “working off”.

An exception is if the parties agreed to sever the relationship without waiting for the expiration of the notice period. In this case, the application is rewritten and a new date for termination of the contract appears in it.

Dismissal based on test results

The employment contract may include a provision for a probationary period, which will allow the employee’s skills to be assessed. Until this period has expired, the procedure for terminating the contract will be simplified, and if management considers that the employee has not passed the test, then he will need to be notified of his dismissal three days in advance.

Expiration of a fixed-term contract

If the contract expires and the company does not intend to renew it, then the employee must also be warned about this. The same period is set as in the previous case - 3 days before the contract expires.

A couple of points are worth emphasizing here:

If, according to the terms of the contract, an employee replaces another during his absence, then when the replaced employee returns to work, the contract automatically terminates and there is no need to give any warning about this.
The dismissal order must be issued strictly on the last day of the contract, since the law establishes that if a fixed-term contract is not terminated when its validity period has already expired, then it becomes indefinite. As a result, the next day there will be no grounds for dismissing the employee.

Dismissal at the initiative of an employee

If the employee himself decides to quit, he will have to give a written warning to the manager two weeks before the date of dismissal, and then work for this period, completing all matters (by agreement with the employer, the work can be canceled or reduced). If he resigns on his own initiative while undergoing a probationary period, then he will need to notify his superiors three days in advance.

How is the term calculated?

The established period, no matter how long it may be, begins to count from the next day after receipt of the notification - regardless of which side the initiative comes from. If mutual agreement is reached on this, the contract can be terminated before the notice period expires.

Calendar days are counted. So, if it is necessary to warn two weeks in advance, then the warning is given on the first day, and the dismissal occurs on the fifteenth - regardless of the number of days off between these dates. Because of this, a situation may arise when the dismissal date falls on a weekend - and what to do in this case will still be sorted out.

If the initiative comes from the employee, then it is important to know that a warning does not mean dismissal. That is, until the deadline has expired, he can change his mind at any time and withdraw the application.

Sources:

https://glavkniga.ru/situations/k502969
https://rabotnik-info.ru/uvolnenie/v-vyhodnoj-den/
https://glavny-yurist.ru/uvolnenie-rabotnika-v-vyhodnoj-ili-prazdnichnyj-den.html
https://ozakone.com/trudovoe-pravo/trudovoj-dogovor/uvolnenie-v-vyihodnoy-den-vozmozhno-li.html
https://uvolsya.ru/den-uvolneniya/mozhno-li-uvolit-rabotnika-v-vyhodnoj-den-po-sobstvennomu-zhelaniyu/
https://departamentsud.ru/uvolnenie-v-voskresene-kogda-proizvedut-vyplaty/
https://ppt.ru/art/uvolnenie/v-vihonoy-den

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Methods for dismissing an employee if the day of dismissal falls on a weekend

Note. The law does not prohibit issuing an order on the eve of the expulsion date (coinciding with the day off), however, dismissing a person and the entry in the work book about the expulsion must be marked as a day off, and certificates and payslips will need to be issued on the day before the day off. Similar judicial practice is reflected in JSC Altai Regional Court No. 33-9680/2013 dated November 26, 2013. The only risk in this option is the possibility of canceling the dismissal order if the specialist changes his mind about leaving.