Dismissal during the next vacation. Dismissal of an employee during vacation. Prospects for judicial protection of an employee dismissed during vacation
The dismissal procedure has always raised a lot of questions, despite well-developed legislative norms labor law. The fact is that dismissal is always associated with a specific situation, with emotional reactions (not always worthy), with different interpretations the law of two opposing parties: the employee and the employer.
Getting fired while on vacation is no exception. And although, according to the law, it doesn’t matter whether you are on vacation or on a business trip, every employee has the right to leave work by notifying the employer 2 weeks in advance, however, the dismissal procedure is associated with a number of nuances.
Situation 1. Dismissal during unfulfilled vacation. Roughly speaking, every 2.5 months of work gives the right to 1 week of vacation (although the period depends on the length of the vacation, for example, for teaching staff it is not 28 days, but 42). If an employee went on vacation before the right to it became available (took it “in advance”), then he must work this time or return the money to the organization for unworked hours (spent on vacation). The management may react to your dismissal during vacation inadequately: they simply will not accept it and will not issue it; they may require you to rewrite the application, putting in different dates, motivating this by the fact that the employee is obliged to work.
What to do in this case? Do not rewrite the application, insist that they make a settlement with you, deduct unworked hours from your vacation pay if you have not received them yet. If you received it, you can return it against receipt. At the same time, always remember that the employer does not have the right to keep you, no matter what.
Situation 2. Dismissal during vacation can become a problem if the director is also on vacation and did not leave in his place a person with the right to sign (deputy, other responsible person), and if there is no opportunity to contact a senior manager (for example, the founder, if you employee of LLC or OJSC).
What to do? Use all possible methods to notify the employer: at least by telephone. In this case, the application can be sent by mail so that it arrives faster and the post office marks the receipt (it is not your fault that the employer did not leave a deputy). If the organization has a person who registers incoming letters (even better if you can do this yourself), he must sign for receipt of your application.
Situation 3. While on vacation and making an unexpected decision to quit, you may leave unfinished matters related to your responsibilities. If you are an accountant and have to submit reports, or you have to take inventory, such cases make it difficult to quit while on vacation.
What to do? You will have to go to work during vacation and finish unfinished business; for this you need a written order from the director to call you back from vacation due to “production” needs. This option is better than suffering dismissal.
Situation 4. You quit due to a transfer to another job.
To do this, you should write a letter of resignation in connection with a transfer to work in […] (specify the organization). In it, indicate the last day of vacation as the date of dismissal. But by agreement with the employer, you can quit on the same day (for example, in the middle of a vacation) and receive compensation for unused vacation.
The manager may require you to work for 2 weeks upon returning from vacation. This requirement has no legal basis. The word “working out” is not in the Labor Code of the Russian Federation. No employee is required to work, he is only required to give 2 weeks notice. In this case, it does not matter at all whether the dismissal occurs during vacation or during sick leave (on a business trip, while studying - it does not matter). Your absence from work for a valid reason does not oblige you to work it. You don't even have to hand over business to a new employee (unless you're leadership position, are a financially responsible person or an accountant).
These cases are the most common, but can be complicated by a number of other circumstances. Always try to reach an agreement with the employer. None of you need notoriety and litigation. If it doesn't work out, follow the law - dismissal at will during vacation provided in Labor Code, in articles 77, 80.
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 or termination labor relations in case 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:
- The presence of a written agreement between the parties, which indicates the period of termination of employment together.
- Forced cessation of the organization's activities when further labor activity impossible.
- 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 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 caught in lies and dishonesty on the part of the employer, he may file a statement of claim to 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:
- Submit your resignation while already on vacation.
- 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:
- Submit an application using Form No. 8 for signature by the manager or other official.
- Contact the accounting department to calculate debt.
- After signing the application and the end of the working day 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 there is a mismatch legal address With a physical 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 given period time, the application will 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 by law to be a dismissal day, so it is reasonable to indicate in the application the exact date when is it supposed . 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:
- To form total amount payment 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.
- 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.
- 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.
- 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.
- The employer is obliged after signing of this document 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.
E.A. answered questions. Shapoval, lawyer, Ph.D. n.
Vacation + dismissal? Combining correctly
Some employees want to take their allotted vacation before leaving. And here two situations are possible:
- <или>the employee, while on vacation, decides to resign of his own free will;
- <или>the employee is about to quit, he has unpaid leave, and he asks to be granted leave with subsequent dismissal.
Registration of dismissal and settlements with employees in these situations are carried out differently.
An employee on vacation can be dismissed at his own request.
The employee went on scheduled leave in July. While he was on vacation, we received a letter from him by mail asking us to fire him. Are vacation days included in the employer's two-week notice period for dismissal? Besides, we can’t fire an employee while he’s on vacation, right?
: You cannot dismiss an employee who is on vacation only at the initiative of the employer (for example, due to layoffs) Art. 81 Labor Code of the Russian Federation. Your employee quits of his own free will.
WE TELL THE EMPLOYEE
Notice period for employer about dismissal at your own request, if the application is sent by mail, is counted upon receipt by the employer. Therefore, you need to add more days to the two weeks to send the letter by mail.
The Labor Code of the Russian Federation does not provide for the possibility of extending the period of notice of dismissal due to the employee’s absence from work. Art. 80 Labor Code of the Russian Federation. This means that vacation days are included in the employer’s two-week warning period about dismissal. In this case, the two-week notice period for dismissal is counted from the day following the day the employer receives the employee’s application Art. 80 Labor Code of the Russian Federation. Therefore, you need to fire an employee on the last day of the two-week notice period, without waiting for the end of the vacation. On this day, you must make a final settlement with him if he is due any payments (for example, wages for days worked before vacation, compensation for unused vacation if he still has unused vacation days), and also issue a work book and other work-related documents. If you pay your salary through a cash register, then you can keep it in the cash register for no more than 5 working days, including the day you receive the money in the bank. clause 4.6 of the Central Bank Regulations dated October 12, 2011 No. 373-P. Since the employee is on vacation, most likely, at this time he will not come for payments and a work book. Then return the unclaimed amount back to the bank (i.e. deposit it).
More information about the procedure for registering and recording the deposit of unclaimed wages is written:
And so that the employee does not collect from your organization average earnings for late issuance of a work book, send it to him by mail by registered mail notification of the need to appear for a work book (or agree to send a work book by mail) and receive a payment Art. 84.1 Labor Code of the Russian Federation.
Leave with dismissal - the work book is issued on the last day of work
M.A. Sizova, Orenburg
The employee was granted leave from July 2 to July 29, 2012, followed by dismissal. We have a regular five-day work week. On what day are we obliged to fire him, when should we give him a work book and make a payment?
: The day of dismissal will be the last day of vacation - July 29, 2012. This is the date you will indicate in the employee’s work book. But you need to pay the employee (that is, pay wages for work in the second half of June), and also issue him a work book on the last day of work before the vacation, that is, June 29 (June 30 and July 1 are days off) Articles 80, 127 of the Labor Code of the Russian Federation; Determination of the Constitutional Court dated January 25, 2007 No. 131-О -О; Letter of Rostrud dated December 24, 2007 No. 5277-6-1. Do not forget that you still must pay him vacation pay 3 calendar days before the start of the vacation, that is, no later than June 28 Art. 136 Labor Code of the Russian Federation.
The day of dismissal may be a day off
T.A. Kraskovskaya, Yaroslavl
The employee was granted leave with subsequent dismissal. On what day should we dismiss an employee if the last day of vacation falls on Sunday, July 15?
: When granting leave followed by dismissal, the day of dismissal is considered the last day of leave Art. 127 Labor Code of the Russian Federation. And, despite the fact that it is a holiday, you must fire the employee on July 15th. However, you need to pay him and give him a work book on the last day of work before the vacation.
Two-week work can be replaced by vacation followed by dismissal
O.I. Titova, Smolensk
The employee wrote a letter of resignation of his own free will. Is it possible to fire him without working, taking into account the fact that at the time of filing the application he did not take two weeks of vacation?
: It all depends on the agreement between the employee and the employer. If at least one of them objects, then the employee can be fired only after two weeks of work and Art. 80 Labor Code of the Russian Federation. After all, as a rule, the employer needs time to find another employee to fill the vacant position; he wants the resigning employee to finish something, transfer things, and the employee expects to work for some more time and receive a salary. And then also receive compensation for unused vacation.
If neither the head of the organization nor the employee himself objects to dismissal without working for 2 weeks, then you can:
- <или>dismiss the employee from the date specified in the application, with payment of compensation for two weeks unused vacation. In this case, the date of dismissal will be the date indicated in the resignation letter and Art. 84.1 Labor Code of the Russian Federation;
- <или>provide vacation followed by dismissal with payment of vacation pay. Then the date of dismissal will be the date on which the last day of vacation falls Art. 127 Labor Code of the Russian Federation. And this will allow the employee to increase the length of service for benefits and pensions and Part 1 Art. 16 of the Law of December 29, 2006 No. 255-FZ; Art. 10 of the Law of December 17, 2001 No. 173-FZ.
The amount of payments to the employee in both cases will be the same, since compensation for unused vacation and vacation pay are calculated in the same way. Art. 139 Labor Code of the Russian Federation; Regulations, approved Government Decree No. 922 dated December 24, 2007 (hereinafter referred to as the Regulations).
In case of reduction, you can be granted leave followed by dismissal
V.T. Markina, Ulyanovsk
Our organization has been reducing its workforce since August 1, 2012. The employees were given written notices of the reduction on May 28, 2012. One of the employees wrote a statement in which he asked to postpone his annual leave, scheduled for September 2012, to July 2012 The management doesn't mind. Is it possible to reschedule an employee’s vacation in this way if they are made redundant? Should we provide an employee with full vacation or only for the time worked?
: Postponement of vacation is possible by agreement of the parties. If your management does not object, you can grant the employee leave with subsequent dismissal instead of September in July 2012. After all, such leave is prohibited from being granted only in case of dismissal due to the employee’s guilty actions (for example, when dismissal for absenteeism) Art. 127 Labor Code of the Russian Federation.
FROM AUTHENTIC SOURCES
Deputy Director of the Department of Education and Human Resources of the Russian Ministry of Health
“The Labor Code does not limit the possibility of providing leave with subsequent dismissal in the event of dismissal due to a reduction in the number or staff of employees in clause 2, part 1, art. 81 Labor Code of the Russian Federation.
It is not legally determined how long the employee should be given leave in such a situation: full or only for the time worked. In our opinion, the employee can claim the number of vacation days that he has earned.”
If you provide full vacation, then you will pay the employee for part of the unworked vacation. And you won’t be able to keep overpaid vacation pay. clause 2, part 1, art. 81, art. 137 Labor Code of the Russian Federation, but you will be able to expense the amount of vacation pay for the part of the vacation provided in advance clause 7 art. 255 Tax Code of the Russian Federation; Art. 137 Labor Code of the Russian Federation.
The length of service for leave followed by dismissal is calculated before the start of the leave
S.Yu. Krasikova, Omsk
The employee goes on vacation with subsequent dismissal from July 16 to July 29, 2012. How to correctly calculate the length of service for vacation: on the day of dismissal (July 29) or on the day preceding the first day of vacation (July 15)?
: Although the day of dismissal when granting leave with subsequent dismissal is the last day of leave, the employee does not retain his place of work during the leave Art. 127 Labor Code of the Russian Federation. Consequently, the vacation period is not included in the vacation period, that is, Art. 121 Labor Code of the Russian Federation in in this case does not apply.
FROM AUTHENTIC SOURCES
“ Vacation followed by dismissal is a special case. The employee receives a paycheck and work book in hand before the vacation. The employer no longer owes him anything. Therefore, the period of an employee being on leave followed by dismissal is not included in the length of service for paid leave.”
Ministry of Health of Russia
Thus, the vacation period when granting vacation followed by dismissal must be counted on the day preceding the day the vacation began. Art. 127 Labor Code of the Russian Federation. That is, in your case, until July 15, 2012.
It is not possible to grant leave for part of the day
A.N. Zherdeva, Tula
The employee applied for leave with subsequent dismissal. The management is not against granting him such leave. At the time of the start of his vacation, his vacation period was 7 months 22 days. How many days of vacation should he be provided and paid for?
: Regarding your question, the Ministry of Health explained the following to us.
From authoritative sources
“ If an employee is granted leave with subsequent dismissal and the number of days of leave, determined depending on the length of service, is not an integer, but a fractional number, then the leave is granted for an integer number of days for which leave pay is paid. And for the rest, compensation is paid.”
Ministry of Health of Russia
In your situation, the employee’s length of service is 7 months 22 days, you need to round it up to 8 months in Letter of Rostrud dated June 23, 2006 No. 944-6. Therefore, the employee is entitled to 18.64 days of vacation (8 months x 2.33 days). Since it is not possible to provide vacation for part of a day, you need to provide the employee with 18 days of vacation and pay vacation pay for them, and pay vacation compensation for another 0.64 days.
The next vacation cannot be converted to vacation with dismissal
E.K. Selezneva, Ryazan
The employee was on vacation as scheduled from June 25 to July 15, 2012. And he still had 28 days of unused vacation left. On June 29, 2012, we received an application from the employee to grant him a non-compliance leave with subsequent dismissal. Are we obligated to extend his vacation? And how to determine the billing period in this case?
: Providing leave with subsequent dismissal is a right, not an obligation of the employer Art. 127 Labor Code of the Russian Federation. Therefore, everything depends on the decision of your management.
If the manager does not object to granting the employee leave with subsequent dismissal, you need to issue the employee leave with subsequent dismissal from July 16 to August 12, 2012. The billing period for his payment will be July 2011 - June 2012. And the day of dismissal of the employee is 12 August 2012 Art. 139 Labor Code of the Russian Federation; clause 4 of the Regulations
If the manager refuses the employee, then you will have to dismiss the employee on July 13, 2012 (when 2 weeks have passed from the date of receipt of the employee’s resignation) at his own request and pay him compensation for the unused 28 days of vacation. The period for its calculation will also be July 2011 - June 2012. Art. 139 Labor Code of the Russian Federation; clause 4 of the Regulations
When leaving while on vacation, this vacation is included in the vacation period.
M.I. Bulkina, Rostov
The employee went on annual paid leave on 28 calendar days from June 4, 2012 to July 2, 2012 for the period from August 1, 2011 to July 31, 2012. We paid him wages for May 2012 and vacation pay. While on vacation, the employee submitted a letter of resignation of his own free will. The two-week notice period for dismissal expires on June 27, 2012. How can you recover from an employee overpaid vacation pay for June and July 2012 that he did not work?
: In your situation, the employee received vacation in advance for only one month - July 2012. After all, the employee quits of his own free will while on regular vacation. Therefore, the vacation itself is included in the length of service that gives the right to vacation Art. 121 Labor Code of the Russian Federation.
More information about judicial practice in cases of recovery of unearned vacation pay from quitters can be found: 2012, No. 5, p. 56As for vacation pay for 1 unworked month, that is, for 2.33 days (28 days / 12 months x 1 month), then, if all settlements with the employee have already been completed, you can:
- <или>invite the employee to voluntarily return overpaid vacation pay;
- <или>try to collect them in court Articles 1102, 1109 of the Civil Code of the Russian Federation. However, the chances of getting a debt from a quitter for unearned vacation pay in court are slim, since most disputes regarding the collection of unearned vacation pay ended not in favor of the employer Determinations of the Moscow City Court dated 08.08.2011 No. 33-23166; St. Petersburg City Court dated November 3, 2011 No. 33-16437/2011. Therefore, when deciding whether to go to court or not, focus on judicial practice in your region.
During vacation, the employee wrote a letter of resignation of his own free will. We’ll talk about how to draw up documents and complete settlements with him in the article.
The Labor Code prohibits dismissing employees while they are on vacation if the initiator of the termination 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 the employment contract 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. It's about about the deadline for filing a resignation letter - no later than two weeks.
Exception from general rule There are cases when further continuation of work is impossible and the employee needs to 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 more early date without good reasons, then this is possible only by agreement with the employer.
Note.The employee has the right to notify the employer of termination of the employment contract earlier - within a period exceeding two weeks.
A vacation recall is not required to submit a resignation letter.
If an employee submitted a letter of resignation during vacation, there is no need to recall him from vacation for that day. After all, at this moment he is not fulfilling his labor functions, and the recall from vacation itself must occur at the initiative of the employer and only with the consent of the employee (Part 2 of Article 125 of the Labor Code of the Russian Federation). But in this case, the employee is going to resign of his own free will, there is no initiative from the employer.
Note.Before the expiration of the notice period for dismissal, the employee may withdraw his application at any time. Dismissal in this case is not carried out unless another employee is invited in his place in writing, who cannot be denied an employment contract (Part 4 of Article 80 of the Labor Code of the Russian Federation).
From what day does the two-week notice period begin?
The employee does not have to submit an application for resignation at his own request in person; he can send it by mail, for example, by registered mail (Rostrud letter dated 09/05/2006 N 1551-6). Only in this case, the two-week notice period for dismissal may begin later than the employee plans.
According to Part 1 of Article 80 of the Labor Code of the Russian Federation, the two-week period begins the next day after the employer receives the employee’s resignation letter. The employer must register the application received by mail in the journal of incoming documents and assign it an incoming number.
Example 1. V. I. Samsonov, an employee of Pyrotechnics-2000 OJSC, is on annual paid leave from May 15 to June 11, 2013 (order dated May 8, 2013 N 39). During his vacation, he decided to resign from the organization on June 5, 2013. Knowing that the employer needed to be notified about this two weeks in advance, V.I. Samsonov wrote a statement on May 22, 2013 and sent it to the employer by registered mail. Can V.I. Samsonov count on dismissal on June 5, 2013, if the employer received a letter of application, registered it in the journal of incoming documents and assigned an incoming number on May 27, 2013?
Solution. V. I. Samsonov’s two-week notice period for dismissal will begin on May 28 and end on June 11, 2013 (the last day of vacation). If the employer does not agree with the date of dismissal specified in the employee’s application (June 5, 2012), he will put a resolution on V.I. Samsonov’s application, indicating the date of dismissal equal to the expiration of the two-week notice period, and the justification - part 1 of Article 80 of the Labor Code RF. For example: “Dismiss on June 11, 2013 in accordance with Part 1 of Article 80 of the Labor Code of the Russian Federation.” On June 11, 2013, the employee can come to review the order, pick up the completed work book, and receive a full payment.
If the employer does not object to the dismissal of the employee on June 5, 2013, June 5 will be V. I. Samsonov’s last working day. On this day, he can familiarize himself with the order, pick up the completed work book and receive a full payment.
If leave is granted in advance
Labor legislation does not provide for the provision of leave of a certain duration in proportion to the time worked. This was indicated by Rostrud in a letter dated June 23, 2006 N 947-6.
General rule. Already six months after concluding an employment contract, an employee can use the full annual paid leave of 28 calendar days (Part 1 of Article 115 and Part 2 of Article 122 of the Labor Code of the Russian Federation).
However, by agreement of the parties, paid leave can be granted to the employee before the expiration of six months (Part 2 of Article 122 of the Labor Code of the Russian Federation).
- for women - before maternity leave or immediately after it;
— workers under the age of 18;
- employees who have adopted a child (children) under the age of three months;
— in other cases provided for by federal laws.
That is, the employer is not insured against the fact that the employee may go on vacation before he has earned the length of service that entitles him to such vacation. And this applies not only to new employees of the organization.
Annual paid leave for the second and subsequent years of work is provided to employees at any time of the working year in accordance with the priority (vacation schedule) established by the employer (Part 4 of Article 122 of the Labor Code of the Russian Federation).
What are the consequences of providing vacation in advance? The fact that an employee can resign directly during vacation or immediately after it. In this case, the employer will have to recalculate the paid vacation pay.
We prepare documents
Vacation order. The basis for granting leave is an order issued by unified form N T-6 (T-6a) or a form independently developed by the employer (letter of Rostrud dated 02/14/2013 N PG/1487-6-1). A note-calculation on granting leave to an employee is also drawn up according to the unified form N T-60 or an independently developed form.
Note.Forms N T-6 (T-6a) and T-60 were approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 N 1.
Cancellation of the original order. If an employee is dismissed before the end of the vacation, the duration of this vacation changes, and the amount of vacation pay changes accordingly. The legislation does not directly indicate the need to cancel the original leave order and issue a new leave order of a different duration. However, given that the accountant for recalculation vacation pay Documentary justification is required, it is better to issue the above orders and, on their basis, re-fill out the calculation note for granting leave. It would also be useful to draw up an accompanying memo.
Example 2. Let's use the condition of example 1. The employer does not object to the dismissal of the employee on June 5, 2013. What actions should the employer take to dismiss V.I. Samsonov before the end of his vacation?
Solution. The employer must:
— cancel the initially issued vacation order and settlement note;
— issue a new order for leave of a different duration and draw up a settlement note;
- draw up an accompanying memo.
You can cancel the initial order to provide an employee with annual paid leave:
- issuing two orders. In the first order, drawn up in any form, the wording may be as follows: “Consider the order dated 05/08/2013 N 39 on granting annual paid leave to V.I. Samsonov invalid in connection with the issuance of the order dated 05/27/2013 N 47.” At the same time, issue another order establishing a new duration of annual paid leave for the employee (up to and including the day of dismissal) and resolving the issue of recalculating vacation pay;
- an order that will establish a new duration annual leave. In this order, you can cancel a previously issued order to grant an employee leave (in connection with his dismissal) (clause 1 of the order), set a new date for annual paid leave (up to and including the day of dismissal) (clause 2 of the order), resolve the issue of canceling earlier executed note-calculation and recalculation of vacation pay (clause 3 of the order).
Service note. Sample memo shown in the example below.
We complete the calculations
The law limits the cases in which debt can be collected from an employee. The case of the return of vacation pay for unworked vacation days falls into this list. This norm is enshrined in paragraph 4 of part 2 of article 137 of the Labor Code of the Russian Federation. It should be noted that such deductions are a right and not an obligation of the employer.
If there is nothing to withhold overpaid vacation pay from, you must either sue the employee or “forget” about the debt.
Before deciding to collect debt, you must make sure that the grounds for dismissal allow you to withhold wages.
Thus, deductions cannot be made if an employee is dismissed for the following reasons:
- refusal to transfer to another job necessary for him in accordance with a medical report, or the employer does not have the appropriate job (clause 8, part 1, article 77 of the Labor Code of the Russian Federation);
— liquidation of an organization or termination of activities by an individual entrepreneur (clause 1, part 1, article 81 of the Labor Code of the Russian Federation);
— reduction in the number or staff of the organization’s employees, individual entrepreneur(clause 2, part 1, article 81 of the Labor Code of the Russian Federation);
- change of owner of the organization’s property - in relation to the head of the organization, his deputies and the chief accountant (clause 4, part 1, article 81 of the Labor Code of the Russian Federation);
- call for military service or referral to a replacement alternative civil service(Clause 1 of Article 83 of the Labor Code of the Russian Federation);
- reinstatement of an employee who previously performed this work, by decision state inspection labor or court (clause 2 of article 83 of the Labor Code of the Russian Federation);
— recognition of the employee as completely incapable of working according to a medical report (clause 5 of Article 83 of the Labor Code of the Russian Federation);
- death of an employee or employer - individual, as well as recognition by the court of an employee or employer - an individual as deceased or missing (clause 6 of Article 83 of the Labor Code of the Russian Federation);
- the occurrence of emergency circumstances that prevent the continuation of labor relations (military actions, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or an authority state power subject (clause 7 of article 83 of the Labor Code of the Russian Federation).
If an employee is dismissed for another reason, the employer can deduct no more than 20% of the amount paid from his salary for each payment. In this case, 20% is calculated from earnings reduced by the amount of withheld personal income tax (Part 1 of Article 138 of the Labor Code of the Russian Federation).
