In accordance with labor legislation, on the day when the working legal relationship between the employer and the employee is terminated, the former must make a full settlement with the resigning employee, give him a completed work book and other documents that are related to the employee’s performance of his labor function.
In practice, HR specialists at an enterprise are often faced with questions about which day should be considered the last working day, what to do if the dismissal date coincides with a weekend or holiday, should the employer pay wages for this day? The answers to the above questions are given in the article.
From what date is an employee considered dismissed?
Part 3 of Article 84.1 of the Labor Code of the Russian Federation states that the day of termination of working legal relations is always the last working day, except for those situations where, for certain reasons, the resigning person did not actually perform his official functions on this date.
The date of termination of the parties' employment relationship is indicated in the dismissal order - it is the last working day of the employee in the company.
Determining this date depends on the grounds on which the employee terminates the relationship with the employer, as well as on the accompanying circumstances (for example, he is on sick leave, on vacation, on a business trip).
The law prohibits the dismissal of employees while they are on sick leave. However, this applies only to cases of termination of legal relations at the initiative of the company’s management. At the same time, it is possible to terminate the working agreement at the initiative of the resigning person or by mutual agreement of the parties, regardless of whether the employee is on sick leave or on vacation or not.
The calculation of deadlines in labor legislation is regulated by Article 14 of the Labor Code of the Russian Federation, according to which if the last day of the period falls on a weekend or non-working holiday, the period ends on the next working day.
If the date of termination of legal relations coincides with a day that is a non-working day for the enterprise, the resigning person is obliged to return to the workplace on the first working day following this date.
Working relationships are not terminated before the onset of weekends or holidays. This is due to the following reasons:
- weekends or holidays refer to non-working days, during which the employee continues to retain all labor rights, including the right to a workplace, etc.;
- During non-working weekends or holidays, an employee may change his mind about resigning and has the right to withdraw his application containing the corresponding request (if, for example, we are talking about terminating legal relations on his initiative), while dismissal the day before deprives him of the opportunity to exercise this right.
If the last day the employee performs his job duties is a working day, then the employer does not face any difficulties. The resigning person is required to work on this date and at the end of the day receive a financial settlement, work book and work-related documents.
However, if we talk about dismissal from work at their own request, which is preceded by the so-called fourteen-day work period, then when writing an application, employees may not pay attention to which day is considered the date of complete termination of the employment relationship.
In this case, it is also necessary to keep in mind that the countdown of the two-week period begins not from the moment the employee wrote his application , but from the day following the day the employer received the application.
If the date of termination of legal relations falls on a non-working holiday, then the employment agreement should be terminated on the next working day. In this case, the duration of the holidays does not matter.
It’s another matter if the employment relationship is terminated with an employee working in accordance with a shift schedule. In this case, his last working day will be the date on which he works his last shift . However, this day may be a day off for the administrative staff of the enterprise.
Employees of the personnel department should pay attention to such nuances, explaining them to the resigning person immediately after receiving his application for termination of the employment contract with the resolution of the manager.
Termination of an employment agreement during sick leave is quite acceptable if it was initiated by the employee himself. It is also possible to dismiss a person who is on vacation or on a business trip.
However, despite the fact that the legislator does not prohibit such actions, in reality, the termination of legal relations during this period may make it difficult for the employee, for example, to receive a work book in a timely manner, which is undesirable.
Dismissal procedure during quarantine
Any circumstance that is the basis for termination of an employment contract must have documentary evidence. Otherwise, the employee will be able to contact the labor inspectorate or prosecutor’s office and restore his rights.
During the quarantine period, some companies decided to downsize staff. But here it is important to follow the procedure for reducing the number of employees:
- two months before dismissal, warn everyone who will be laid off in writing, against signature;
- agree on the procedure with the trade union (if a trade union cell exists in the organization);
- offer other positions in the company.
Even if there are no vacant posts, the retrenchment procedure must contain a two-month phase after the issuance of written notice. And during this period the employee works in the organization and receives a salary.
But in the case of coronavirus, when the company’s work is stopped, the employer can declare non-working days as downtime. Then payment will be made at the rate of 2/3 of the salary.
In case of layoff, the employee is paid severance pay. In addition, within two months the organization must make a payment to him in the amount of average earnings if during this period he is not officially employed.
If the dismissal occurs at the employee’s own request, then the usual procedure for terminating the employment contract is applied.
Who has the right to be fired without working for two weeks?
Is this working time or not?
The answer to the question whether the day of dismissal is considered a working day or not is given in Article 84.1 of the Labor Code of the Russian Federation (Part 3). From a literal reading of this norm, it follows that in all cases, the day of termination of labor relations is the last working day, except for those situations where the employee did not actually perform official duties, but his workplace was retained due to legal requirements.
That is, according to the general rule, enshrined in Part 3 of Article 84.1 of the Labor Code of the Russian Federation, an employee on the date of termination of legal relations is obliged to work the required hours , at the end of the day receive the payment due, pick up the work book, work-related documents and leave the enterprise.
However, in some cases, on the date of termination of the employment relationship, the resigning person may not perform his labor function. Such situations include, for example:
- the employee is on sick leave;
- the person has been granted leave with subsequent dismissal;
- An employee resigns due to prolonged absence.
In the above situations, on the date of termination of legal relations, the dismissed person did not perform his labor function; accordingly, this day was not a working day for him.
How to determine the date of dismissal?
To correctly determine the cutoff date you need to know:
- when the employee works his last working day;
- or when the paid period without working activities ends.
The second point applies to the case when the date of dismissal falls on sick leave or vacation. For example, the date of dismissal has already been determined, but on that day the employee was on regular vacation or sick leave.
Example:
An agreement was reached to dismiss the employee on July 1. But on June 25, the employee fell ill. According to the social insurance law, the entire period of illness is paid, that is, sick leave accruals will include the period indicated on the certificate of incapacity for work. This means that the relationship between the enterprise and the employee cannot end before the closure of the sick leave.
The same rule applies to a woman on maternity leave or an employee who took leave before dismissal. In such cases, the day of dismissal is the date the sick leave ends or the last day of vacation.
If an employee asks to be fired voluntarily
Article 80 of the Labor Code of the Russian Federation allows an employee to terminate legal relations with the employer at his own request. However, dismissal must be preceded by notification to the employer of the employee’s decision. The period for such notification is established by the legislator and is 2 weeks.
In this case, the parties to the labor relationship can independently come to an agreement that this period will be reduced.
In addition, under certain circumstances, the employer is obliged to sign an order to terminate the employment agreement and dismiss the employee on the date specified by him. Such circumstances include:
- admission of a resigning person to an educational institution;
- retirement;
- change of residence to another city or region;
- the health status of dependents and family members requiring care from the employee;
- violations of the law by the employer, etc.
When writing a letter of resignation at your own request, you must keep in mind that the fourteen-day warning period established by law does not begin to be calculated from the day on which the letter was actually written by the employee. The countdown of the period will begin from the date following the one on which the employer received the application.
Therefore, there are often situations when the date of termination of legal relations coincides with a weekend or holiday. Correctly calculating the date when submitting an application in person does not cause any difficulties, but if the request for dismissal is sent, for example, by mail, then such coincidences may well occur.
When indicating in the application a specific date for termination of the employment relationship, for example, if the parties have agreed on this issue, you should write “I ask you to fire me on May 30” and not “I ask you to fire me from May 30”, since in the second case there may be discrepancies regarding , whether to consider May 30 as the last working day.
Features of dismissal on weekends and holidays
Dismissal on weekends and holidays has its own characteristics. To understand how to terminate a contract, it is necessary to take into account who is the initiator of the termination of the employment relationship. This can be an employer or an employee. Dismissal by agreement of the parties is also common.
By agreement of the parties
Upon dismissal by agreement of the parties, mandatory service is not established. Termination of the contract is carried out within the period specified in the contract. Calculation and issuance of documents are carried out on a working day.
According to Article No. 78 of the Labor Code of the Russian Federation, an employment contract can be terminated at any time (even if it is a weekend or holiday) agreed upon by the parties who entered into it.
It is better for the person being dismissed and the employee to agree that the date of termination of the employment relationship falls on a working day.
At your own request
If an employee leaves the company of his own free will, then he has the right to independently choose the date of departure. By law, he is required to work at the enterprise for another 14 calendar days.
If the date of termination of the employment relationship falls on a holiday or weekend, then the head of the organization needs to choose one of the following options:
- implement the dismissal, make a full calculation and issue the work certificate on the day preceding the holiday;
- agree with the employee to postpone the date of dismissal to the day following the day off. This option does not suit people who plan to start a new job immediately after the holiday;
- officially dismiss the employee on a holiday, and issue documents and settle payments with him before the day off.
Expert opinion
Irina Vasilyeva
Civil law expert
According to labor law, the employer has no right to delay payments. Otherwise, the employee can file a complaint and submit it to the labor inspectorate. This threatens the organization with a fine. Therefore, settlements with the employee should be made before the holiday.
Do I need to work on the day of termination of employment at my own request?
By terminating an employment contract on his own initiative, an employee can independently determine the last working day at the enterprise. However, one should not forget that the law requires advance notification of the employer about the decision made.
If the parties have not agreed on a specific date of dismissal, then the employment relationship between the parties will be terminated 2 weeks after the employer receives the application requesting dismissal.
The counting of this period depends on how the employee handed over the application to the employer personally against signature or sent it by mail (by registered mail with notification of receipt and a list of attachments).
It is important to remember that:
- the two-week period begins to be calculated from the day following the date the employer receives the application;
- If the last day of the notice period falls on a weekend or non-working holiday, then the employment agreement is terminated on the next working day.
When resigning at one's own request, not in all cases the resigning person must actually perform his or her job duties on the last working day, since termination of legal relations is possible:
- while the employee is on sick leave;
- immediately after the end of the vacation.
If the employment relationship is terminated immediately after a vacation, that is, when writing an application for vacation with subsequent dismissal, the work book is issued to the employee on the date preceding the start of the vacation.
Preparation of documents upon dismissal during quarantine
Documents for dismissal during quarantine are issued electronically. In addition, you will have to decide whether, at the end of non-working days, the former employee needs to come to the office in order to sign them.
The problematic point in such a situation is the issuance of a paper work book and income certificates accompanying the dismissal:
- 2-NDFL certificates;
- certificate of salary amount in form 182n.
After all, despite the fact that the employee can draw up an application with a request to send the work report by registered mail, the personnel officer or accountant will still have to go to the office.
If the day of termination of the employment contract falls on a weekend
It happens that the date indicated in the application, on which the end of the two-week warning period falls, falls on a weekend or non-working holiday. In this case, the norm of Article 14 of the Labor Code of the Russian Federation applies: a person can finish work only on the next day following a weekend or holiday. This is the position of Rostrud, but there is another position, according to which it is possible to issue calculations and documents the day before.
However, this rule does not apply to shift work, when the employee was scheduled to work at this time. In this case, as Rostrud indicated in letter No. 863-6-1 dated June 18, 2012, the person must be settled on the agreed day without any transfer of deadlines. However, a problem may arise here: the resigning employee’s shift may fall on a Saturday or Sunday, when the accounting department and personnel are on vacation. Then the employer will have to call the accountant and personnel officer to work on their day off and subsequently compensate for such an exit, as required by the Labor Code.
Work book: record of dismissal
On the day the employment relationship with the employee ends, the necessary entry is made in his work book. It contains the date, month and year of dismissal and provides links to the relevant articles of the labor code.
If an employee during the period of service did not manage to fulfill his obligations to transfer affairs or material assets, the employer does not have the right to increase the period of his stay in the institution. In the same way, the date of dismissal cannot be changed upward if the organization did not have time to prepare a calculation for the employee.
If on the last day it is not possible to give the work book to the employee due to his absence or unwillingness to receive it, the enterprise must send him a notice reminding him of the need to either pick up this document himself or agree to have it sent by mail. After sending such a notice, the employer is relieved of responsibility for delaying the work book.
As you can see, answering the question whether the day of dismissal can be considered a working day or not, the answer will be unequivocal - yes. Exceptions to this rule apply only to persons who are not actually working, but who retain this job.
Standard cases and terms of termination of the contract
Application at your own request
If an employee decides to resign on his own, then by law he is required to notify management about this two weeks (14 calendar days) in advance. In addition, the application for termination of the contract itself usually indicates the day of dismissal. However, employees often have doubts whether the day of dismissal is considered a working day or not. The Labor Code specifies: the last working day is considered to be exactly the date that falls on the last day of such warning.
By virtue of Article 14 of the Labor Code of the Russian Federation, the warning period should begin to count the next day after submitting an application to the company’s personnel service. If, for example, an employee wrote a statement and submitted it to his superiors on December 1, then he must indicate December 15 in it. This will be his last day at work. It is important to clarify that in the application you need to avoid the preposition “with”: you need to write not “I ask you to fire me on December 15,” but simply “to fire you on December 15.” This will make it easier for the personnel officer to navigate when drawing up an order, and the inspectors will not have any unnecessary questions. In addition, this wording serves as protection against discrepancies in the understanding of what day the last working day falls on in the course of possible disputes between employees and employers.
Agreement of the parties
If the parties decide to terminate the employment contract by mutual consent, they also draw up a separate document about this. In this situation, there may be no two-week working period, and any day convenient for both parties for completing professional duties and terminating the employment contract can be chosen. This is what should be indicated in all documents.
At the initiative of the enterprise
There are various reasons when it is possible for an employer to dismiss an employee on his own initiative. For example, an employee is absent for a long time without good reason. The date of dismissal in such a situation will coincide with the last day of work before absenteeism.
Dismissal at the initiative of the enterprise can occur in other cases. The main ones are the following:
- change of owner;
- liquidation of the enterprise;
- the person’s inadequacy for the position held;
- evasion of professional duties;
- the presence of repeated cases of gross violation of discipline;
- showing up at work under the influence of toxic or alcoholic drugs;
- disclosure of commercial or official secrets;
- committing petty theft;
- providing false information during employment.
When the employment relationship with an employee is terminated for one of the reasons listed above, the enterprise issues a corresponding order indicating the date of dismissal, which cannot coincide with the date of publication of this document. Based on this order, the calculation is made. A person whose dismissal is initiated by the employer has the right to take part in the discussion of the date of his dismissal and submit proposals regarding this issue.
If an employee is on legal leave, then it is impossible to dismiss the person at the initiative of the employer before it ends. It is also not allowed to dismiss people on sick leave under this article.
5 serious mistakes you shouldn’t make at work to avoid getting fired
In the event of the death of an employee, it is impossible to dismiss him on the basis of a medical certificate certifying this fact; you must wait until the death certificate is issued. Moreover, the date of dismissal indicated in the order of dismissal due to death should not coincide with the actual date of this sad event.
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