Last modified: January 2021
As a general rule, the moment of termination of an employment contract is recognized as the last working day. In exceptional cases, an employee is fired on a day when he actually did not work and his position was retained. In practice, there are often times when dismissal falls on a weekend. The courts have not reached a consensus on how to correctly formalize the termination of an agreement in such situations.
In the article we will consider whether it is possible to register a dismissal on a day off, and what an employer should do to avoid conflict situations.
Normative base
To understand where work on a day off can come from, you need to refer to the procedure for calculating wages and find out how to make a dismissal on a day off and when to pay the salary.
The legislator allows enterprises to choose a payment system, for example, if production conditions require assigning shifts or working on weekends or holidays. The payment for such an organization of labor is quite equivalent - an employee who has written an application for termination of employment relations can count on the final payment under Article 140 on a non-working day.
The Labor Code states that the last day of work is the day of dismissal. On this date, the citizen still formally performs his duties and fills out a bypass sheet. There is no clear reference in the law as to which day may be selected for final settlement. Therefore, the opinion that it is impossible to fire someone on a day off is hasty and even erroneous.
Recording in labor
The work book is filled out and issued on the employee’s last day of work. The entry must contain:
- date of dismissal - filled in on the basis of the order, that is, it must be identical to that indicated in the document (it is permissible to enter a day off or holiday);
- basis - corresponds to what is specified in the order, a reference to the regulatory legal act must be included;
- the number and date of the document on the basis of which the entry is made - that is, the order data.
The record is certified by the signature of an authorized person and the seal of the organization.
Sample entry in the work book upon dismissal:
If the dismissal is carried out on the eve of a day off, the work book must be given to the employee on this date, that is, in advance. Otherwise, the employer’s actions are regarded as a delay in providing documentation to the employee.
Step-by-step registration instructions
The content of part three of Article 84 of the Labor Code does not contain a clear requirement regarding when employees should be counted - on a working or non-working day. It turns out that a day off is quite suitable for dismissal and issuance of a book with records of the place of work. There are cases when the employer is prohibited from changing the date of exclusion of an employee from the lists of the enterprise. For example, when a legal entity is on the threshold of organizational and staffing measures. If you do not dismiss the employee within the period established by the decision of the general meeting of shareholders and duplicated in the notice, the employment relationship is considered to continue. In this case, the dismissal procedure must be repeated again.
If a company employee does not come to work on his day off and he must be fired, the administration will have to follow the following action sequence:
- An application for termination of the employment contract is drawn up. Particular attention is paid to clarifying the grounds for dismissal on a day off, the visa of the head of the unit;
- An order is issued, the text of which indicates the personal data of the employee, the basis for exclusion from the staff and the date. The employee familiarizes himself with the administration's order against signature;
- The work book is filled out, pay slips are prepared for payment;
- Payment and dismissal on Sunday when to pay.
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Among the nuances when dismissing on a day off is the employment of a new citizen. If the former employee is not expelled, an order is not issued, or changes are not made to the work book, the position cannot be held. This must be done if there is no agreement with the employee to postpone the dismissal procedure to a working day for the administration.
At your own request
According to Article 80 of the Labor Code of the Russian Federation, when leaving - dismissal on a day off at his own request, the employee must notify the employer 14 days in advance.
The end of the working period may fall on a weekend or holiday. To avoid conflict situations, it is recommended to agree with the employee so that he draws up a new application indicating the date of departure on a working day.
If he does not agree to postpone the moment of termination of the agreement, the order is issued the next day after the rest. There may be a problem when an employee has to go to a new place on Monday, so a compromise will need to be sought.
It happens that an employee’s dismissal occurs during holidays that last for several days in a row. If you act according to the rules of Article 14 of the Labor Code of the Russian Federation, this will delay the preparation of documents. It is possible to issue an order in advance with a dismissal date on holidays.
Example 1. 04/28/2018 I.N. Lyutikova submitted her resignation of her own free will, without entering the date of termination of the contract. The end of the two-week working period was on Saturday – 05/12/2018. She refused to reschedule her departure date. Since she needed to go to a new place from May 14, 2018, in agreement with the management, she was fired on May 11, 2018. The order indicated 05/12/2018 as the date of termination of the agreement.
However, the employee retains the right to withdraw the application within a 2-week period. In this case, the order will need to be canceled and adjustments made to the work book, since the employee retains the right to a workplace.
You should know! If the dismissal is formalized in advance, the employee must be fully paid off before the weekend. Otherwise, the employer will be held liable for the delay in issuing wages and work books.
At the initiative of the employer
The reasons for dismissal at the initiative of the employer are listed in Article 81 of the Labor Code of the Russian Federation. It is important that the contract termination procedure is followed and supporting documents are prepared (for example, an internal investigation report, a notice of warning to employees about staff reduction).
In case of staff reduction or liquidation
If you plan to dismiss an employee due to staff reduction or liquidation of the company, you need to warn him about this two months or earlier. In the case where the two-month period expires on a weekend, with a 5-day work week, the order is signed on Friday. The document will include a later date for the employee’s dismissal, falling on Saturday or Sunday.
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Termination of an employment contract at the initiative of the employee
Example 2. 07/31/2018 I.E. Ustinova received notice of dismissal due to staff reduction. The two-month warning period expired on Saturday 30.09.2018. The order was prepared on Friday - September 28, 2018, and September 30, 2018 was indicated as the date of termination of the contract.
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For a disciplinary offense
For such grounds as dismissal for disciplinary misconduct, the obligation to notify the employee is not established.
Therefore, the employer has the right to choose the next working day. If he took care of evidence of misconduct, the dismissal of the employee from his position will be lawful. Example 3. E.A. Petrov systematically violated labor discipline. The immediate manager submitted three reports on absenteeism to the director of the LLC company in the period from 09.10.2018 to 09.12.2018 with an attached report drawn up by a commission of three people. On September 13, 2018, the employee was given a written notice with a request to provide an explanation for the facts of absenteeism within two days. On Friday, September 14, 2018, by the end of the working day, E.A. Petrov provided written explanations. He did not come to work because he was intoxicated. On Tuesday, September 18, 2018, the employer terminated the contract with him on the basis of Article 81 of the Labor Code of the Russian Federation.
Dismissal on a weekend or holiday by agreement of the parties
When the parties agree, the same rule applies as when dismissing at will: the date specified in the agreement is of key importance. But the working period does not apply in this case.
The date of dismissal by agreement of the parties is determined by the employee and the employer by agreement.
In practice, it is easier for the person being dismissed and the employer to agree that the date of dismissal falls on a working day. The law does not limit them in this way.
During the 2008 crisis, my employer was forced to urgently lay off two thirds of its employees. He suggested that those being dismissed leave by agreement of the parties. Since the difficult financial situation in the company was not a closely guarded secret, and the director had a good relationship with the owner, and we also knew that he took out a loan secured by the apartment to pay us, everyone agreed. The calculation and work books were given to us immediately after signing the agreement, on the same day.
On vacation and sick leave
If a citizen is on vacation or undergoing treatment, this situation applies to cases when he does not work, but his position is retained. Therefore, it is allowed to set a day off as the date of dismissal.
Important! The contract can be terminated without his presence only if he has written a letter of resignation of his own free will. In a situation where the dismissal is initiated by the employer, you will need to wait until the employee returns to work.
Special occasions include leave with aftercare. According to Article 127 of the Labor Code of the Russian Federation, the final day of rest will be recognized as the date of departure, even if it falls on rest. The final payment is made to the employee before the vacation. At the same moment he is given a work book. After going on vacation, it will not be possible to withdraw the application, since the employee’s job is not retained.
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Example 5. 04/28/2018 A.N. Kazantsev wrote a letter of resignation of her own free will, without indicating the date of termination of the contract. The end of the 2-week work period was on Saturday – 05/12/2018. On 05/07/2018 he went on sick leave until 05/18/2018. The employee did not withdraw the application. The order was prepared on May 11, 2018. The contract termination date was 05/12/2018. After completing the treatment, the employee brought the sick leave certificate to the employer. They made a calculation for him, gave him a work book, paid sick leave.
Due to the expiration of the employment contract
If a fixed-term employment contract has been signed with an employee, then the date of its termination may fall on vacation. In practice, two options for dismissal on this basis are used.
You can place an order on the next working date before your vacation. In this case, the employee should be notified about the expiration of the contract three days before dismissal. The order is signed on Friday; Saturday or Sunday is indicated as the date of release from office.
Most experts are of the opinion that an employee should be fired on the first day after rest.
Example 4. N.N. On June 29, 2018, Stepanova entered into a temporary employment contract with the LLC company for three months. It was supposed to expire on Saturday, September 29, 2018. The employer warned him about the expiration of the contract on September 25, 2018. Since the end date fell on a weekend, the order was signed on October 1, 2018.
Dismissal of employees working on schedule
For some professions, a shift schedule is established. There may be situations when a day off coincides with a working day, and for the employer it is a day off.
Rostrud, in Letter No. 863-6-1 dated June 18, 2012, explained that the final working day is recognized as the date of termination of the contract, regardless of whether it coincides with rest. The dates for signing the order and dismissal will be identical.
To fill out the documents, it is recommended to involve a personnel employee to work on days off with his written consent.
Example 6. S.T. Barashkova works in a medical institution on a shift schedule. On April 28, 2018, she wrote a letter of resignation of her own free will. The two-week work period ended on Saturday, May 12, 2018, which is a working day according to the shift schedule. She refused to postpone the moment of leaving. The employer hired a human resources specialist and a financial accountant to work on Saturday with their written consent. S.T. Barashkov was paid off and given a work book. The order was signed on May 12, 2018.
Termination of a contract in the absence of an employee
In practice, it happens that an employee who is on vacation or sick has to be fired. He has the right to notify him of his desire to stop working by registered mail. By law, presence at the time of dismissal is not required if there is proof of incapacity for work. In practice, situations where an employee does not go to work for a good reason within the two-week period established for work are not uncommon.
What to consider in this case:
- the counting of working days begins from the next date after receipt of the application;
- the order must be made on the day specified in the application;
- Payment must be made before the weekend.
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How to formalize dismissal for absenteeism
Upon completion of registration, a copy of the order and a notification that the documents have been prepared and can be picked up are sent to the employee’s address.
It must be taken into account that correspondence takes time to reach the addressee. Therefore, it is better for the employee to warn about his intention before going on vacation and agree on a date.
Dismissal on a weekend or holiday when they are postponed
The transfer of working days to weekends is often practiced on the eve of public holidays: February 23, March 8, May 1 and 9, June 12 and November 4. The point of such postponements is to give Russians a longer rest on the holiday itself. For example, if March 8 falls on Thursday, the working day may be moved to the previous Saturday. If the date of a public holiday falls on a weekend, the Monday following it is usually considered a holiday.
In case of dismissal on such dates, the rule is simple. The day off to which the authorities have postponed the working day is considered a working day; the worker, after the transfer of the day off to it, becomes a full day off.
Is it possible to fire an employee on a weekend or holiday?
By virtue of Part 4 of Article 84.1, Article 140 of the Labor Code of the Russian Federation, on the day of termination of the contract, the employer hands the employee a work book and transfers the full payment. Therefore, it is important to correctly determine the date of dismissal if it coincides with a weekend or holiday.
In judicial practice, two positions have emerged on this issue:
- on the basis of Article 14 of the Labor Code of the Russian Federation, the employment agreement is terminated on the nearest working date following the non-working date;
- Dismissal should be formalized on the last working day before rest.
Let's consider both options to figure out whether it is possible to fire an employee on a day off.
Dismissal on the first working day after a day off
The first point of view is based on the rules for calculating deadlines enshrined in Article 14 of the Labor Code of the Russian Federation. By virtue of Part 4, in the case when the end of the period coincides with a non-working day, it is transferred to the next working day.
If the last working day falls on Saturday or Sunday, termination of the agreement must be completed on Monday. This position is contained in the ruling of the district court of the Tver region dated November 15, 2011 in case No. 33-4631, the appeal ruling (hereinafter - JSC) of the Khabarovsk Regional Court dated May 16, 2012 No. 33-3001, JSC Arkhangelsk Regional Court dated August 11, 2014 in case No. 33-3916. The courts ruled that it was unlawful to terminate a contract on a day off.
On the last working day before the holiday
The essence of the second point of view is that the employee must be relieved of duty on the last day before the rest. In this case, the employee’s interests will not be violated if he has to go to a new place on Monday.
The order to terminate the contract is signed on the eve of the vacation. The document indicates a day off as the date of dismissal. On the final day of work, he is given a work book and is paid in full.
This position is shared by the Moscow City Court (JSC dated November 20, 2012 in case No. 11-21106/12), Primorsky Regional Court (JSC dated February 6, 2013 in case No. 33-922, dated March 31, 2014 No. 33-2581) , Krasnoyarsk Regional Court (JSC dated 04/29/2013 in case No. 33-4007/2013).
Thus, the court did not find any violations in a situation where an employee was dismissed on the eve of a day off due to staff reduction before the end of the notice period.
Order date
According to current legislation, namely Article 84 of the Labor Code, it is impossible to dismiss an employee on a day off. The date of termination of employment should be postponed to the next working day (next). If the situation reaches a dead end and the employee decides to quit on a day off, you can still adjust the date due to working hours, making it, for example, not 14, but 12 days. This right is enshrined in Article 14 of the Labor Code.
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Expiration of the contract
If a fixed-term employment contract was signed with an employee, then the date of its termination may fall on a weekend or holiday. For example, if dismissal is on Sunday, when is it better to sign documents? In this case, there may be two options for dismissal:
- The order is issued on the nearest date, which falls on the working day before the holiday. It is important that the employee is warned that the period ends three days before the end of the contract. The order can be signed on Friday, and the dismissal date can be set on Saturday or Sunday.
- The second option involves dismissal immediately after rest.
For example, Stepanova E.A. On June 29, 2021, I entered into a temporary employment contract with the company. The contract is due to last three months and expires on Saturday 29 September. The employer warned the employee that she would be fired in three days. Since the end of the contract fell on a weekend, the order itself was signed on October 1.
Payments
Regardless of the date of termination of the employment relationship, the employer remains obligated to pay accruals due on the day of dismissal:
- Wages calculated in proportion to the time worked;
- Compensation for vacation days that were not used by the date of dismissal;
- Severance pay in cases established by law or internal regulations of the company. The specified payment is calculated based on average earnings;
- Other payments provided for by corporate agreements.
Employer's liability
As Art. 236 of the Labor Code of the Russian Federation, the head of the company is financially responsible for the delay in payment of wages and other payments due to the employee.
If the head of the company violates the established deadline for issuing a settlement upon termination of the employment contract, he will have to pay it together with monetary compensation. Its size is not less than 1/300 of the refinancing rate of the Central Bank of the Russian Federation in force at that time for amounts not paid on time for each day of delay, starting from the next day after the scheduled payment date, including the day of actual settlement.
Calculation of due payments
The main types of wages upon dismissal on a day off are compensation for unused vacation and wages for hours worked after the last scheduled payment.
For example, an employee of organization N with a salary of 25,000 rubles and an average daily earnings of 900 rubles wrote a letter of resignation. At the time of his application, he had unused vacation and work time left. Due to his illness, he cannot come, so he sent a letter of application by registered mail. He should be compensated for leave of a standard duration of 28 days and 9 working days. The payment will be 900*(28+9) =33300 rubles.
When should payment be due for dismissal on a day off?
The same should be done with the work book and other work-related documents that the employer is obliged to provide to the employee - they must be given to the employee before going on vacation, i.e. on the last day of work. This conclusion also follows from the Determination of the Constitutional Court of the Russian Federation dated January 25, 2007 N 131-О-О. In other words, in fact, the employment relationship with the employee terminates from the moment the vacation begins. That is why, in accordance with Part 4 of Art. 127 of the Code, an employee who has been granted unused leave with subsequent dismissal on his own initiative does not have the right to withdraw his resignation letter after the start of the leave, even if it is only the first day of leave. During illness during the period of leave with subsequent dismissal, the employee is paid temporary disability benefits , however, in contrast to the general rules (Art.
Calculation on vacation and sick leave
In the event that a citizen is undergoing treatment, his position must be retained. In this case, it is also allowed to set a day off as dismissal. Taking into account the law, it is necessary to remember that it is possible to terminate a contract without an employee only if he has written a letter of resignation of his own free will. If the idea of layoffs belongs to the head of the organization, then you will need to wait until the employee returns to his place.
A special case is leave with aftercare. When to make the calculation? If the date of departure falls on the final day of vacation, regardless of whether it is a vacation, the employee receives a payment before the vacation, and at the same time he must be given a work book. If an employee goes on vacation and then plans to resign, he must understand that he will not be able to withdraw his application and his job will not be saved.
This is also important to know:
What certificates must an employer issue when dismissing an employee in 2021?
For example, April 28, 2021, O.I. Casanov decided to leave his job of his own free will, but did not indicate the date of termination of the agreement. Having worked for two weeks, the dismissal date fell on Saturday - May 12, but from May 7 the employee was officially on sick leave until May 18. The employee did not withdraw his application, and an order was prepared for him on May 11, with the date of termination of the contract with him indicated as May 12. As soon as the employee completed treatment, he brought the sick leave to the manager, they made a calculation for him, gave him the work book and paid the sick leave.
Termination of contract with employees with privileges
The Labor Code of the Russian Federation describes situations when the employer is obliged to formalize dismissal on the day the application is submitted. We are talking about situations where an employee may not give notice of his intention to terminate the employment agreement, for example, when retiring or being called up for service.
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Based on Art. 14 of the Labor Code of the Russian Federation, if the date specified in the employee’s application is a day off or an official holiday, then the employer has the right to complete all paperwork on the next working day. However, there are situations when there is no time to wait, for example, a conscript needs to arrive at the appointed place on Monday, but he works until Saturday inclusive. In this case, by special order of the manager, all persons responsible for issuing the work book and the final payment are involved in performing duties during non-working hours.
Agreement of the parties
In case of dismissal, which is carried out by agreement of the parties, the rules apply that are relevant for dismissal at one's own request. The main thing that is important is the date indicated in the order. In this case, the working period does not apply. The actual date of dismissal is chosen by the employee together with the employer. In this case, both parties can agree and set a date on a working day; the law in this case has no restrictions.
There are different situations, for example, in 2008, when there was a big crisis, the head of the organization needed to fire a large number of employees, he proposed to do this by agreement of the parties.
Additional questions
If the day of dismissal falls on a weekend, when should the amounts due upon termination of the contract be paid?
As in the situation described above, it is recommended that all payments be made on the eve of the employee’s last day of work - on the last working day.
If the last day of work upon dismissal falls on a day off that is part of the New Year holidays
A fairly common situation is dismissal after a notice period (so-called working off), which ends on Saturday, Sunday or a holiday. According to the rules, the employee notifies in writing that he wants to terminate cooperation at least two weeks in advance (in some cases, three days or a month). This notice period is beneficial to the person resigning, since he can change his mind during this time and withdraw his application. The employer can select a new employee within these two weeks.
But some write the application specifically so that the notice period coincides with the New Year holidays, for example. Since the Labor Code of the Russian Federation does not oblige work during this period, the long New Year holidays replace “working off”.
An exception is if the parties agreed to sever the relationship without waiting for the expiration of the notice period. In this case, the application is rewritten and a new date for termination of the contract appears in it.
Settlement for a misdemeanor
If an employee commits an offense, then there is no reason to fire him without warning him in advance. The employer has the right to choose any nearest day for dismissal. It is worth noting that in this case, proof of misconduct plays an important role, then dismissal from the position will be carried out legally.
For example, Petrov S.V. constantly violated labor discipline. The manager submitted three notes to the chief with a report on absenteeism that occurred during a certain period. Also attached to the report was an act that was drawn up by a special commission, which must include at least three people. After this, the employee received a written notice with a requirement to explain the reasons for absenteeism within two days. The next day after such notification, Petrov was able to provide an explanation, indicating that he could not go to work because he was intoxicated. After this, the manager terminated the employment contract with him, guided by Article 81 of the Labor Code.
Sources:
- https://glavkniga.ru/situations/k502969
- https://rabotnik-info.ru/uvolnenie/v-vyhodnoj-den/
- https://glavny-yurist.ru/uvolnenie-rabotnika-v-vyhodnoj-ili-prazdnichnyj-den.html
- https://ozakone.com/trudovoe-pravo/trudovoj-dogovor/uvolnenie-v-vyihodnoy-den-vozmozhno-li.html
- https://uvolsya.ru/den-uvolneniya/mozhno-li-uvolit-rabotnika-v-vyhodnoj-den-po-sobstvennomu-zhelaniyu/
- https://departamentsud.ru/uvolnenie-v-voskresene-kogda-proizvedut-vyplaty/
- https://ppt.ru/art/uvolnenie/v-vihonoy-den
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Dismissal of employees who work on schedule
Some professions have a shift schedule, so situations cannot be ruled out when a day off may coincide with a working day for an employee, but for management itself this day is considered a day off.
In Letter No. 863-6-1 dated June 18, 2012, there are detailed explanations on this matter, which states that the date of termination of the contract is considered the final working day, regardless of whether it falls on a weekend or not. The dates of the order and dismissal must be the same. To fill out all the documents, you can involve a personnel employee in the work, but only if he gives his written consent.
For example, T.N. Barabash works in a medical institution and has a shift schedule. On April 28, 2021, she decided to resign from her position and wrote a statement of her own free will. The 14-day work period ended on the weekend of May 12, while according to the schedule this is considered a citizen’s working day. The health worker refused to postpone the day of departure, so the management decided to call on a specialist from the HR department and an accountant, Barabash received a work book and a paycheck on the same day. The order was signed on the 12th.
Legislative norms and their application
Such situations are regulated in accordance with Article 14 of the Labor Code (fourth part), which states that the last day of work should be considered the day following the weekend.
Accordingly, the manager must explain to the employee the emerging
situation and ask him to rewrite the application taking into account the new date of final payment. If we are talking about termination of an employment contract at the initiative of management, it is necessary to adjust the content of the dismissal order and bring it into compliance with the requirements of labor legislation.
Such actions are also associated with the need to bring the situation into full compliance with Article 80 of the Labor Code, which states that the waiting period (so-called working off) when an employee submits an application cannot exceed two weeks.
That is, termination of an employment contract one or two days later (late) will be considered invalid.
Most often, employers consider the actual day of termination of the employment contract to be the last day worked by the employee before the weekend, which is included in the two-week waiting period (work off).
On this date, all necessary documents are prepared. And on the same day, the employee is given all the required documents and accrued funds (the final payment is made). In this case, the dismissed employee will not have any claims against the employer, since labor legislation has not in fact been violated.
