Dismissal due to conscription into the army: what should the employer do?

Dismissal due to conscription into the army

To begin the procedure for dismissing an employee in connection with his conscription into the army, you will need to receive a summons from him. Only men between the ages of 18 and 27 who are not in the reserves or who have not served can be drafted. If the summons is brought by an employee older than the specified age, then it is better to check its authenticity. Dismissal due to conscription is possible only for those men who are drafted into the army for compulsory service. Dismissal of contract employees occurs as usual on a general basis. There are no distinctions between dismissal due to conscription for military service or alternative service; the registration rules in both cases will be the same. The only difference will be in the entry in the work book.

Results

An employee of military age, if he is called up for military service, is dismissed under clause 1 of Art. 83 Labor Code of the Russian Federation. Dismissal is carried out on the basis of a summons presented to the employer (in some cases the employer receives the summons and hands it to the employee). An employee does not have to write a letter of resignation, but this is practiced by employers to agree on the exact date of dismissal.

The regulations do not approve any specific date for dismissal, but it must occur no later than the day before the date of the conscript’s arrival at the muster site specified in the summons. The dismissal order is issued on the employee’s last working day, at which time he is given a work book and a full payment is made.

If an employee does not have time to notify the employer of his departure to his place of duty, the employer independently requests confirmation of this from the military registration and enlistment office and, upon receiving a positive response, issues a dismissal order. The date of dismissal in this case will be the last day that the employee went to work. Payment funds and a work book can be kept by the employer until the employee applies for them or can be sent by mail to the address specified by the employee.

https://youtu.be/R-MzgdW-xMk

Persons subject to military registration

Persons subject to military registration include (Resolution No. 719):

• Men aged 18–27 years who are not in reserve;
• Persons in reserve, in accordance with Law No. 53-FZ.

Persons who cannot be registered with the military include:

• Women who do not have a military specialty;
• Persons serving;
• Convicts;
• Limited availability for service;
• Reserve officers of the FSB and foreign intelligence;
• Living abroad.

The procedure for dismissing a conscripted employee

To dismiss an employee due to conscription into the army, certain specifications must be observed. It is important to understand that the employer cannot influence the employee’s call in any way, for example, delay it or cancel it. Everything needs to be completed in a short time. Despite the fact that the specific period within which the company must dismiss a conscript is not established by law, the dismissal procedure must be completed before the employee leaves for service. The last day of work, as in any other case, will be considered the day of dismissal (

When should you be fired?

The legislation does not clearly indicate the deadline for filing an application for dismissal due to conscription into the army. The main condition is that the employee has time to arrive at the collection point indicated in the summons. For this reason, the employer does not have the right to demand standard work within a 2-week period, and he must announce this to the employee who is leaving for the army. An order for dismissal from a position is issued upon receipt of data from the military registration and enlistment office, or the employee himself can bring these documents (meaning a summons).

Employee's resignation letter

Important! Drawing up a statement is not mandatory when leaving due to conscription.

In this case, the basis may not be a statement, but a summons. Upon receipt of the subpoena, the personnel officer should study it carefully. If there are any doubts about its authenticity, it is better to check with the military registration and enlistment office that issued this document. The employee can bring the summons in person, or the military registration and enlistment office immediately sends it by mail to the employer.

Despite the fact that the employee is not required to write a statement, it is better to warn the company against unnecessary questions from the labor inspectorate and ask the employee to write it. Questions may arise regarding the date of dismissal. The application will indicate the date of dismissal, as well as the reason, which will somewhat simplify the work of the personnel officer.

Sometimes, having received a summons, a conscript may work for several more weeks, so it is better for him to determine the date of dismissal on his own. The employer does not have the right to decide when exactly to dismiss such an employee, and the employee may ask to do this even before the call-up deadline. In the application, he has the right to indicate any date from the moment the employer receives the summons until the date of departure for duty. The employer should not force the employee to work additional time before dismissal.

Document flow between the employing company and the military registration and enlistment office

Termination of the employment agreement within the framework of the reason under consideration entails the obligation of the employer to transmit information about the decision made to the military registration and enlistment office within 2 weeks. It is worth noting that a form obliging a person to attend the training camp can be sent directly to the organization in which the conscript is employed. Having received the document by mail, a HR specialist reviews it for compliance with legal requirements.

The summons must be drawn up on a special form. The act is endorsed by the head of the draft commission. In addition, the paper must bear the stamp of the commissariat. If these rules are not followed, the employer has the right to ignore the message. Also, the document loses its legal force if it is received after the deadline for fees specified in the text. In other cases, the document is handed over to the employee against signature. At the same time, a summons received on time must be transferred to the subordinate at least 3 days before the meeting.

Important! If the company ignored the requirements of the current legislation and did not transfer the document to the person liable for military service, then the specialist involved in registering those liable for military service faces a sanction in the form of a fine in the amount of 500 - 1000 rubles (Article 21.2 of the Code of Administrative Offenses of the Russian Federation).

Making an entry in the work book

Based on the order, the employee responsible for maintaining labor records records the dismissal in the labor record. The wording will be as follows: “Dismissed due to conscription for military service, paragraph 1 of part one of Article 83 of the Labor Code of the Russian Federation.” The order is indicated as the basis.

When making an entry, you should take into account what service the employee is being called up for. If we are talking about alternative service, then the entry in the book will be different: “Dismissed due to conscription for alternative service, paragraph 1 of part one of Article 83 of the Labor Code of the Russian Federation.”

Important! As with any other dismissal, the employee responsible for maintaining the books signs the entry.

The corresponding records of dismissal are also entered into the employee’s personal card (

An employee of an enterprise is called up for military service: we answer questions

From this article you will learn: when a job is reserved for employees called up for military service, how to correctly register the absence of an employee during the period of his service, and what the employer faces with the illegal dismissal of employees called up for military service.

What can be done in practice: correctly prepare documents for employees leaving for military service, and this will help the company avoid financial losses.

In what cases does a called-up employee retain his job? Does the requirement to maintain a job for an employee apply to persons called up for military service?

Conscription or entry into military service is grounds for dismissal of an employee on the basis of clause 3 of Art. 36 Labor Code. However, dismissal under this article is not allowed if the employee retains his job and position in accordance with Parts 3 and 4 of Art. 119 Labor Code.

Let us note that in Art. 119 of the Labor Code has been amended several times and currently Part 3 of Art. 119 it is established that job security guarantees apply to persons who are accepted :

• for compulsory military service, conscript military service for officers and conscript military service during mobilization for a special period;
• for military service under a contract, including by drawing up a new contract, during a special period for the period until its end or until the day of actual dismissal.

This is important to know: Application for alternative service

They retain their place of work, position and average earnings .

The specified guarantees are also retained for employees who were injured (other health damage) during military service and are being treated in medical institutions, as well as were captured or declared missing. The guarantees remain until the day following the day of their registration with district (city) military commissariats after their dismissal from military service if they complete treatment in medical institutions, regardless of the duration of treatment, return from captivity, appearance after being declared missing, or until the day the court declared them dead.

Let us add that all types of military service in Ukraine are listed in Part 6 of Art. 2 of the Law of December 25, 1992 No. 2232-XII and these, in particular, include:

• compulsory military service;
• military service on conscription during mobilization for a special period;
• military service under contract for privates;
• military service under contract for sergeants and senior officers.

Therefore, workers who are called up for compulsory military service are reasonably subject to the guarantees provided for in Part 3 of Art. 119 Labor Code.

What documents must be completed to retain a job for an employee called up for military service?

The basis for retaining an employee’s job, position and average earnings is a summons . The procedure for issuing subpoenas is regulated by the Regulations on the preparation and conduct of the conscription of citizens of Ukraine for military service and the acceptance of conscripts for military service under a contract, approved by the resolution of the Cabinet of Ministers of March 21, 2002.

No. 352 (hereinafter referred to as Regulation No. 352).

The summons for the need to arrive at the recruiting station must contain the following text (its form is given in Appendix 18 to Regulation No. 352):

“According to the Law of Ukraine “On Military Duty and Military Service”, you are called up for compulsory military service and enlisted in team No. ____ (indicate the team number provided by the regional military commissariat).

I suggest you “___” _________ 2020 before _____ o’clock to appear for shipment to the collection point at _________.”

an order to release an employee from work in connection with conscription for military service from the date indicated in the summons (our sample can be used as a basis).

Sample

Guided by Part 3 of Art. 119 of the Labor Code of Ukraine, I order to release:

Expert opinion

Grigoriev Pavel Kirillovich

Head of the department for conscription of citizens for military service of the Russian Federation

Fedor Viktorovich Makarenko, advertising manager, from work since April 3, 2020 in connection with conscription for military service, maintaining his place of work, position and average earnings for the period of compulsory military service.

The basis for issuing this order is a summons from the military registration and enlistment office, the original of which is attached to the order.

The employee must be familiarized with such an order and signed.

An entry about the release of an employee due to conscription for military service is not made in the work book

During the absence of such an employee, in the work time sheet with the designation “IN” - other unworked time provided for by law (letter of the Ministry of Social Policy dated 06/05/15 No. 225/06/186-15).

What are the consequences for an employer when dismissing an employee called up for military service?

If such an employee is fired, the employer expects the following consequences:

1. Reinstatement of an employee at work through the court. Here are some examples from judicial practice:

2. Recovery from the employer of average earnings during the employee’s forced absence on the basis of Art. 235 Labor Code.

Procedure for notifying the military registration and enlistment office

After dismissing an employee, the employer is obliged to notify the military registration and enlistment office. This must be done within a specified period of two weeks from the date of dismissal. The notice can be sent by letter or delivered in person. When sending a notification by mail, the letter should be prepared with a list of the contents and a receipt. The notification form is given in Appendix No. 9 of the “Methodological Recommendations”, approved. General Staff of the Armed Forces of the Russian Federation 07/11/2017.

Important! Notice of the dismissal of a conscript should be sent to the military registration and enlistment office at the location of the employer, and not the former employee.

What documents are required

In addition to the summons, which can be sent either to the employee or to the head of the company, the following steps will be required:

1. If the summons was addressed to the manager, he is obliged to hand it over to the employee against signature no later than three days before the deadline specified in the document. In accordance with paragraph 7 of the Regulations, approved by Decree of the Government of the Russian Federation of November 11, 2006 No. 663, violation of the deadline on the part of the manager threatens him with a fine of 500 to 1000 rubles.
2. Based on the above document, it is necessary to dismiss the subordinate.
3. After issuing an order to release an employee from official duties due to conscription (clause 1 of Article 83 of the Labor Code), the military registration and enlistment office must be notified within two weeks.

The procedure for dismissal without the participation of a conscript

Sometimes an employee is taken to work before the employer receives a summons. Therefore, the dismissal of an employee occurs without him, but only on the basis of this summons. The date of dismissal must be taken as the last day actually worked by the employee. Otherwise, the dismissal procedure will be the same.

The only difficulty that arises is that the employee cannot receive his work permit and also sign all the necessary documents. In such cases, it is necessary to draw up an act. The act indicates the reasons why the company cannot obtain the employee’s signature. In the order, instead of the employee’s signature, a reference to this act is placed. The employer must keep the work book until the employee comes to collect it.

If the conscript does not show up for work

There are situations when an employee of military age does not show up for work. Perhaps because he did not have time to notify the employer of receiving the summons (I received it late), or for other reasons.

In this situation, you should do this:

• Note on the time sheet each day the employee fails to show up for work due to unknown circumstances.
• If there is an assumption that the employee has been drafted into the army, send a request to the military registration and enlistment office geographically attached to the employee’s place of residence.
• When confirmation comes from the military registration and enlistment office that the employee has been drafted into the army, dismiss him with reference to clause 1 of Art. 83 Labor Code of the Russian Federation. The date of acceptance of the order is the date of receipt of the response from the military registration and enlistment office, and the date of dismissal will be the employee’s last working day.
• If the military commissariat does not confirm the call for service, the employee can be fired due to absenteeism.

Read about the rules for registering absenteeism in the material “How to properly register absenteeism for an employee under the Labor Code of the Russian Federation?”

With such an absentee dismissal, it is difficult for the employer to give the work book to the employee called up for military service; it will not be possible to familiarize him with the dismissal order. In this case, a note is made in the order that it is impossible to familiarize the employee with it. An unclaimed book can be stored in the archives of the enterprise for up to 75 years, so it can be issued to the employee on the day of application.

Or, at the request of the employee, you can send the work book to his place of registration or service address. The book can also be received by one of the employee’s relatives by proxy.

Calculation of a conscript worker

When dismissed due to conscription, the employee must be paid the due salary, as well as compensation for the vacation he did not take. The procedure for calculating compensation is the same as for voluntary dismissal. If the employee took vacation in advance, they do not need to be returned (137 Labor Code of the Russian Federation). In addition to these payments, the employee is also paid severance pay in the amount of average earnings for 2 weeks (178 Labor Code of the Russian Federation, 292 Labor Code of the Russian Federation). Payment of such benefits is due only if the contract with the employee was concluded for a period of more than 2 months. The settlement is paid in the total amount in the same way as the payment of wages (Read also the article ⇒ Dismissal of a combat veteran).

Workplace after maternity leave

The reason for dismissal directly affects the amount of unemployment benefits at the time when you try to find a new job while registered with the Employment Center. If you are offered another place, this is also not in accordance with the law. However, think: which way out is most preferable for you? Perhaps the new position is even more attractive than the previous one? Or is it time for a radical job change? One way or another, when going on maternity leave, study your situation thoroughly.

You must know about your rights and be able to defend them. We hope that your return to work after maternity leave will be accompanied by only positive emotions.