Author of the article: Yulia Kaysina Last modified: January 2020 2124
Regardless of the reason for which the decision is made to terminate the employment contract, and who initiated it, the dismissal must be properly formalized. Usually the parties inform each other about this in advance, and the day of dismissal coincides with the last working day. However, sometimes there are unusual situations: an employee is on sick leave, on another vacation, on maternity leave, etc. Therefore, HR officers may have questions about how to properly formalize dismissal during vacation.
General provisions
According to labor law, it is almost impossible to fire a person while he is on vacation at the initiative of the employer.
However, no one is stopping an employee from writing an application for payment of his own free will during this period or on the eve of his vacation. The date of dismissal in this case may coincide with the last day of vacation. But the employer cannot decide to refuse the services of an employee while he is on vacation. Even if the basis was a violation of discipline, which gives the right to terminate the employment contract unilaterally (for example, on the eve of the vacation, the employee committed absenteeism), you must first wait until he returns to work, and only then apply sanctions. An exception is if the organization was liquidated (Article 81 of the Labor Code of the Russian Federation).
However, the employer can reach an agreement with the employee and dismiss him by agreement of the parties. In this case, vacation will not be an obstacle. The main thing is that this decision suits both parties. Most often in this case, the last day also coincides with the end of the vacation. There is no practical point in firing an employee earlier. Even if he is not going to go back to work after his vacation, the documents can be prepared and given to him in advance.
If the end of the vacation coincides with the end of a fixed-term employment contract, and the employee is not going to renew the agreement, the last day of vacation and the date of dismissal will also be the same.
On the last day, a dismissal order is issued, which the employee is introduced to upon signature. If this is not possible, it is advisable to record this fact in the act. The employee is also given a work book, a 2NDFL certificate, and the final financial settlement is made. This includes:
- last month's salary,
- bonus,
- compensation for unused vacation (if any),
- other benefits and payments provided for by the Labor Code and the collective agreement.
Usually money is transferred in the method provided by the organization (cash or to a bank card).
If an employee received workwear, tools and other material assets, he returns them back in accordance with the company’s internal rules. Some organizations provide a special bypass sheet for these purposes. Only after filling it out does the personnel officer begin to formalize the dismissal. Moreover, if the employee remains in debt to the organization (for example, he did not return the tool), then some amount may be withheld from him.
Expert commentary
Leonov Victor
Lawyer
If a person does not show up for documents, he is notified that he must pick them up. However, there are no deadlines in the law for how long this must be done. At the request of the employee, the personnel officer transfers the documents to an authorized person or sends them by mail.
When can you fire an employee while on vacation?
The Labor Code of the Russian Federation (see Article 81) states that dismissal during the vacation period is possible only when there is no initiative of the employer. Thus, it is possible if:
- the decision is made by the employee himself;
- the decision becomes the fruit of an agreement between the parties;
- the person whose duties were filled during his absence returns to work;
- the employment contract expires.
The will of the employer will be the basis for dismissal on vacation only if the organization is liquidated or the individual entrepreneur ceases its activities. A special case will be the dismissal of an employee of the Ministry of Internal Affairs. In Art. 82 of the Law “On Service in the Department of Internal Affairs of the Russian Federation” dated November 30, 2011 No. 342-FZ stipulates that, on the basis of paragraphs. 1, 2, 4, 7–9 and 11 hours 3 tbsp. 82 dismissal while on vacation is allowed.
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In order to exercise the right to terminate relations with an employee on any of the grounds provided for in Art. 81 of the Labor Code of the Russian Federation, he will have to be called back from vacation (see Art. 125 of the Labor Code of the Russian Federation) or wait until it is completed. Can they be fired while on vacation if the employee’s consent to voluntarily recall from vacation is not received? Let us assume that voluntary consent to recall from vacation was obtained with the deliberate purpose of dismissing the employee at the initiative of the employer, and the employee was not aware of such a purpose of recall from vacation. This situation may become the basis for reinstatement at work (see the decision of the Beloretsky Court of Bashkortostan dated October 2, 2017 in case No. 2-2089/17).
Dismissal at the initiative of the employee
If an employee decides to quit on the eve of or during a vacation, the procedure for terminating the contract is standard. A letter of resignation is written in accordance with the internal rules of the organization. Usually it indicates the last working day. The application is endorsed by the supervisor and notes whether work is required.
If an employee decides to take a vacation and quit immediately after it, then, in accordance with accepted practice, he writes two applications at once: one for vacation, the other for pay. In this case, all documents are completed on the last day that the person actually spends at the workplace. At the same time, all the money is given out - salary, vacation pay, severance pay, etc.
If an employee is on vacation and cannot submit a letter of resignation in person, it is permissible to send a registered letter. But it is recommended to choose this method only in extreme cases, when there are no other options to communicate your desire. In addition, it must be taken into account that the working period will begin to count not from the day the application is written or sent by mail, but from the moment the employer receives the letter. Therefore, the planned date of dismissal will most likely be significantly delayed.
If the application is written less than two weeks before leaving the vacation, the employer has the right to demand that the remaining days be worked. For example, an employee wrote a letter of resignation a week before leaving vacation, while the employer insists on two weeks of work. In this case, he will need to go to work, work for another week, and only after that the employment contract will be terminated.
Expert commentary
Platonov Alexander
Lawyer
It is also worth noting that if an employee wrote an application for leave in such a way as to quit immediately upon its end, and during the leave he fell ill, the next leave for the period of sick leave is not extended. But if, after the end of the vacation, the employee needs to work for some time, the sick leave will extend, and this period is counted as working off.
Processing is not required in some cases:
- admission to full-time study;
- retirement;
- violation of labor laws by the employer.
In these cases, the employee can write an application for payment even on the last day of vacation and resign immediately upon its end.
Notice period for dismissal while on vacation
As already indicated, an employee, having decided to quit, must notify his employer about this at least 2 weeks before the planned termination of the employment contract. And the fact that the employee is on vacation at the time the decision is made is not a basis for extending this period of notification to the employer.
If at this time the employee is not in the area where he works and does not have the opportunity to submit his application in person, then he will be able to send it by mail. Such a notice can also be sent by registered mail - this is indicated in the letter of Rostrud “On the procedure for dismissal ...” dated September 5, 2006 No. 1551-6.
In addition, by agreement reached between the head of the employing enterprise and the employee who decided to quit, the term of termination of the employment contract can be reduced - in this case, the date of termination of the employment relationship will be considered the day designated by the parties (Part 2 of Article 80 of the Labor Code of the Russian Federation).
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Dismissal during parental leave
During maternity leave, a woman can resign of her own free will. The dismissal procedure will be standard. But since in this case there is no point in establishing a two-week work period, the dismissal is usually formalized on the same day when the application is submitted or a few days later.
A deferment may be necessary so that the HR employee has time to prepare documents, and the accounting department has time to make the final payment.
Dismissal upon liquidation of an organization
At the initiative of the employer, dismissal during parental leave can only occur if the organization completely ceases its activities. But staff reduction cannot be grounds for dismissal. Even if the rate at which the woman is registered is completely removed from the staffing table, this can only be done when the employee returns from maternity leave. Until then, she continues to formally hold this position (Article 256 of the Labor Code of the Russian Federation).
Expert commentary
Kolesnikova Anna
Lawyer
Liquidation of an organization can occur by court decision or at the request of the business owner. In any case, in accordance with the law, all employees, including those on parental leave, must be notified of this at least 2 months before the date of dismissal (Article 180 of the Labor Code of the Russian Federation).
The law does not specify how notice must be given. But in order to avoid misunderstandings, it is recommended to choose a method that can be documented and subsequently presented as evidence of the legality of the employer’s actions.
Methods for sending notifications:
- send a registered letter with acknowledgment of receipt;
- transmit information by telephone, recording this in a telephone message;
- send someone to their place of residence and notify them personally against signature;
- other ways to reliably assert that a person was informed about the upcoming reduction.
There are no strict requirements for drawing up a notice; it is drawn up in accordance with internal office rules. However, in order to avoid misunderstandings, it is worth indicating the date of liquidation of the enterprise, or the period during which this will happen and the starting date. The minimum notice period is two months, but this can be done earlier. It is also recommended to indicate the compensation and guarantees that are due to the dismissed employee.
It is advisable to make the notification in two copies: one, with the employee’s signature on familiarization, remains in the company, the second is given to the employee.
How to communicate your desire to quit while on vacation
As the labor legislation of the Russian Federation states, an employee must inform the administration in writing about his desire to leave his position. The employee must write an application at any convenient time, but no later than 14 working days. This procedure is in place to ensure that management has time to find a replacement for the person leaving. The next day after receiving the letter of resignation, the countdown of 2 weeks begins, which are work off.
Please note that although it is possible to send a letter of resignation by registered mail, the number of days required to deliver the letter by mail is added to the last day worked. After receiving it, the head of the organization is obliged to record it as “incoming correspondence” in the appropriate journal under a certain number.
Dismissal due to the end of a fixed-term contract
In addition, an employer can dismiss an employee working under a fixed-term employment contract if the term of the agreement has come to an end. In this case, he must notify the employee in advance in writing at least 3 days before the end of the contract. If the contract does not specify a specific date, but is entered into to perform the duties of an absent employee, no prior notice is required. The contract automatically terminates at the moment when the main employee resumes his duties (Article 79 of the Labor Code of the Russian Federation). In this case, a temporary employee may be on vacation, but dismissal will not be a violation of his rights.
Expert commentary
Kamensky Yuri
Lawyer
If the contract expires during maternity leave, the woman has the right to extend its validity until the end of this leave (Article 261 of the Labor Code of the Russian Federation). If we are talking about a pregnant woman, the contract is extended until the end of the pregnancy. In this case, the employer has the right to ask to provide a certificate confirming pregnancy once every 3 months.
Dismissal from maternity leave
Difficulties arise if an employee is accepted on maternity leave. Usually, in such cases, a fixed-term employment contract is concluded with him, but the end date is not a specific date, but the return to work of the main employee. However, if an employee working on a “maternity” rate also goes on parental leave, a logical question arises: can he be fired due to the expiration of the contract? A logical contradiction arises here: on the one hand, the expiration of the contract, on the other, a ban on the dismissal of women raising a child under 3 years of age.
There is no separate provision that would regulate this issue. The practice is that when the main employee goes to work, the person who worked at his rate quits. That is, the provision on termination of a fixed-term employment contract applies. If we are talking about a pregnant woman, then the employer is obliged to offer her all alternative vacancies that are currently available. In this case, the position may be of similar or lower qualifications. The main thing is that a woman can really work there without harm to her health. And only after the employee refuses to change her job does dismissal follow.
Is dismissal carried out on maternity leave?
Is it possible to quit during maternity leave? This is a frequently asked question that interests many young mothers.
As the law states, if a woman is on maternity leave, she can be dismissed only with consent, and this must be confirmed in writing. Also, during maternity leave, a woman has the right to send by mail a written statement about her desire to resign.
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Is it possible to quit without serving a probationary period?
Unfortunately, there are cases when the administration simply wants to get rid of an employee, forcing her to write a statement in her own hand about her desire to resign, allegedly due to her own desire or family circumstances. But such a situation can only be regulated by resolving a dispute. Sometimes it is possible to punish the administration for such pressure and make forced dismissal illegal.
Dismissal during voluntary leave, when a woman is caring for a child, can be done in 2 ways.
- Reach mutual agreement with the employer and document this.
- Submit a written application by mail.
Please note that while on maternity leave, a woman is exempt from two weeks of work.
