In accordance with labor legislation, on the day when the working legal relationship between the employer and the employee is terminated, the former must make a full settlement with the resigning employee, give him a completed work book and other documents that are related to the employee’s performance of his labor function.
In practice, HR specialists at an enterprise are often faced with questions about which day should be considered the last working day, what to do if the dismissal date coincides with a weekend or holiday, should the employer pay wages for this day? The answers to the above questions are given in the article.
Is it possible to change the date of dismissal?
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As a general rule, the date of dismissal from office cannot be changed. It shifts only taking into account holidays or weekends. The parties can agree on a specific date of dismissal only if they formalize the termination of the contract by agreement of the parties.
Thus, the dismissal date is determined as follows: it always falls on a weekday. The exception is situations when an employee cannot go to work for valid reasons. The HR department should carefully check whether the dismissal date falls on a working day or a weekend to avoid violations of the law, resulting in fines and lawsuits.
How to correctly calculate the moment of termination of a contract?
As mentioned above, the period begins from the next day after the grounds for dismissal arose.
That is, when submitting an application, you need to find out how much you need to work:
- 2 weeks – as a general rule;
- 1 month – if the head of the organization, athlete or coach resigns;
- 3 days – if a temporary worker or trainee leaves.
Elkin I.D. submitted an application of his own free will on July 12, 2019. He was fired on July 26, 2019, because there were no time limits set for his position.
If Elkin I.D. was a sports team coach, he would have been fired on August 13, 2019.
Termination of an employment contract due to liquidation of the organization or downsizing means that the employer must give 2 months’ notice.
You can read more about existing notice periods for dismissal here.
Belyaeva K.L. received notice of her layoff on 03/28/2019. She can be fired no earlier than 05/28/2019, unless the employee herself has agreed to early departure with payment of additional benefits for the days remaining before the layoff.
What if I terminate the contract from the very beginning of the month?
It all depends on what exactly the employee wrote in his application and whether he plans to go to work on the 1st. If yes, then this date is indicated as the last working day, and therefore the day of dismissal.
If it was meant (and this is clearly indicated in the application) that the employee no longer goes to work on the 1st, then the last working day falls on the 31st, 30th or 28th (29th), depending on the month.
So, Rilsky D.N. indicated in his statement “dismissal from March 1”, without any clarification. The employer considered that March 1 was the employee’s last working day and completed all the paperwork on this date. If he had indicated in the application the last working day of February 28, this is the date that would have been indicated in all documents.
What is an employee required to do during the working period?
If an employee resigns voluntarily, he must perform his job duties for another two weeks. Work begins the next day after submitting documents to the employer. The working hours do not change; the employee has the right to days off. Also at this time he may get sick or go on vacation.
The following have the right to leave without work:
- pensioners;
- pregnant women;
- adoptive parents of minors under 14 years of age;
- persons admitted to an educational institution for full-time study;
- employees subject to disciplinary liability;
- workers moving to another region or abroad;
- citizens caring for a disabled person or a child under 14 years of age.
So, the parties have the right to agree on dismissal without work. In addition, there is a special category of persons who are not required to work. They have the right to leave the employer at first request.
If an employee asks to be fired voluntarily
Article 80 of the Labor Code of the Russian Federation allows an employee to terminate legal relations with the employer at his own request. However, dismissal must be preceded by notification to the employer of the employee’s decision. The period for such notification is established by the legislator and is 2 weeks.
In this case, the parties to the labor relationship can independently come to an agreement that this period will be reduced.
In addition, under certain circumstances, the employer is obliged to sign an order to terminate the employment agreement and dismiss the employee on the date specified by him. Such circumstances include:
- admission of a resigning person to an educational institution;
- retirement;
- change of residence to another city or region;
- the health status of dependents and family members requiring care from the employee;
- violations of the law by the employer, etc.
When writing a letter of resignation at your own request, you must keep in mind that the fourteen-day warning period established by law does not begin to be calculated from the day on which the letter was actually written by the employee. The countdown of the period will begin from the date following the one on which the employer received the application.
Therefore, there are often situations when the date of termination of legal relations coincides with a weekend or holiday. Correctly calculating the date when submitting an application in person does not cause any difficulties, but if the request for dismissal is sent, for example, by mail, then such coincidences may well occur.
When indicating in the application a specific date for termination of the employment relationship, for example, if the parties have agreed on this issue, you should write “I ask you to fire me on May 30” and not “I ask you to fire me from May 30”, since in the second case there may be discrepancies regarding , whether to consider May 30 as the last working day.
Questions
When is final payment due?
Full payment is made to the employee at the time of leaving work. He is given a work book, the requested documents, and is also paid wages for the time worked. Additionally, compensation is provided for unused vacation.
When laid off, the employee receives severance pay and payments for 2-3 months. If a citizen is absent from the workplace, the payment is issued the next day or upon his first request.
What happens if you violate the terms of payment upon dismissal?
It happens that companies violate deadlines and do not make payments on the day of dismissal. In case of absenteeism of an employee, the company is not subject to punishment, since the employer’s actions are not at fault.
This is also important to know:
Dismissal of a financially responsible person at his own request
For violation of the final payment deadlines, the organization will be punished in accordance with administrative legislation. The fine amount is from 1,000 rubles. up to 50,000 rub. The employee also has the right to file a civil lawsuit to recover penalties. It is 1/150 of the refinancing rate of the Central Bank of the Russian Federation. For a delay in issuing a work book, the company will pay compensation in the amount of average earnings for the entire period of delay.
How to write a resignation letter?
The resignation letter is written in any form. It is advisable to calculate the moment of termination of the contract so that it coincides with weekdays. It is recommended to specifically state the date of dismissal without the preposition “from”: “I ask you to dismiss at your own request on January 25, 2019.”
Is it possible to find a compromise with an employee if the day of dismissal falls on a weekend?
It happens that dismissal must be formalized on a weekend or holiday. The employee may be against moving the date of termination of the employment contract forward. Especially if he has agreed on employment at a new place of work.
In such a situation, it is possible to terminate the employment relationship by agreement of the parties by agreeing on a more convenient day. In this case, the employee will no longer be able to withdraw his resignation letter of his own free will, but he does not have to work for 2 weeks.
What day is considered the day of dismissal?
According to Art. 84.1 of the Labor Code of the Russian Federation, the day of termination of the employment contract is the last day of work, with the exception of cases when the employee did not actually work, but, in accordance with the law, his position was retained. So, in particular, the date of termination of the contract may fall on the day when the employee:
- is on sick leave;
- is on vacation (in particular, when an application for payment at his own request was submitted by him during the vacation period or before the vacation and at the end of the warning period the vacation had not yet ended, or the employee was granted vacation with subsequent dismissal on the basis of Article 127 of the Labor Code);
- absent from work for other reasons.
So, let's look at the possible options:
When settlement falls on a working day
For personnel officers, this option is optimal and does not raise any questions. But when submitting an application of their own free will, employees often do not know whether the day of dismissal is considered a working day or not, and therefore, having written in the application “I ask to be fired on December 10,” they believe that on December 10 they can no longer go to work at all or appear only for in order to take away the labor and say goodbye to former employees. Alas, since by law the date of dismissal is considered the last working day, it must be worked off. Therefore, when accepting a resignation letter from an employee or signing an agreement, it is advisable to explain to him all the nuances of the future separation.
When is the last day a weekend or holiday?
There are two possible situations here. According to Art. 14 of the Labor Code of the Russian Federation, if the last day of the period falls on a non-working day, then the end date is considered to be the next working day following it. Therefore, if the date of termination of the contract coincides with a weekend or holiday, the day of dismissal of the employee is the next working day. Moreover, the duration of the holidays does not matter. So, for example, if the notice period ends on the weekend of December 31, 2019, then the employee’s departure will take place only after the end of the New Year holidays - January 9, 2019.
And if an employment contract is terminated with an employee who has a shift work schedule, then the day of the employee’s dismissal is considered the date of his last work shift, including one that falls on an administrative non-working day. In any case, this is precisely the position adopted by Rostrud (letter of the Federal Service for Labor and Employment dated June 18, 2012 No. 863-6-1). And here problems arise for the employer - they have to bring a personnel officer and an accountant to work, pay them double pay, and they have the right not to agree to work on their day off.
Such situations usually arise when dismissal is initiated by an employee, since often, when submitting an application two weeks in advance, a person simply does not pay attention to the fact that the notice period ends on a non-working day - for himself or for the administration. Therefore, the personnel officer should pay attention to these points when accepting the application, and agree with the employee on the last working day upon dismissal that suits both parties.
What does the law say?
The Labor Code allows an employee of an organization to sever employment relations with the employer.
The definition of the final day of an employee’s career at a particular enterprise is discussed in the Labor Code, namely in Articles 77 and 80.
Labor Code of the Russian Federation
What day is considered the day of dismissal?
The final 8 hours of work in the organization are also the deadline for dismissal.
Paragraph 1 of Article 84 of the Labor Code of the Russian Federation states that an employee ceases to be an employee of the organization and to perform labor functions at the moment of termination of the document confirming the cooperation of the employer with the employee under certain conditions - the employment contract.
Registration of calculations in the work book
Termination of an employment agreement occurs on the personal initiative of the citizen or by decision of management. In the first case, a statement is written, in the second situation, an order is issued reflecting the reason for the decision to part with the employee ahead of schedule. The reasons may be of various types, from staff reduction, liquidation of the enterprise to violation of internal regulations or failure to fulfill official duties. Based on the order, the enterprise’s accounting department makes the final financial calculation, and the HR department makes an entry in the work book.
If the employee has not transferred his duties to another person, or the assigned tasks have not been completed, there is no reason to detain him beyond the deadline. The employee must be familiarized with the order or order of the manager against signature. In case of refusal, a corresponding note about familiarization is made in the act. An entry in the work book is made on the last working day indicating the date and reason for dismissal.
The employee has the right to request the information he needs for subsequent employment, which the HR department must notify.
What is the best date to terminate the contract?
Before counting the date of dismissal, it is necessary to clarify several points:
- vacation period (if an employee took his vacation “in advance,” then not only will he not be paid compensation, but he will also remain in debt to the organization for unearned vacation money);
- the opportunity to get a new job immediately or shortly after dismissal.
You should not indicate a non-working day as the day of dismissal. The law does not prohibit it, but confusion often arises with such dismissal , because by dismissing an employee earlier, the employer will deprive him of the right to withdraw his application on the last day, and by dismissing him later, he will be deprived of the opportunity to start a new job on Monday.
Thus, what date is best to quit a job is a personal matter and an employee’s right protected by law. Direct determination of the exact date will depend on several legally significant facts, in particular, on the date of filing the resignation letter (if we are talking about voluntary dismissal).
How does the dismissal procedure, which requires a mandatory two-week period of service, take place?
Sample application for voluntary resignation
Having decided to leave his position, the employee must submit a corresponding application to the employer. Despite the fact that in principle there is no statutory template for such a statement, the document must still include certain mandatory clauses.
The first and basic rule is that it must be in writing. Simply coming to the HR department and resigning by submitting a verbal application will not work.
The application must also contain the following mandatory items:
- date of document preparation;
- day of dismissal (indicated by the employee);
- personal signature of the employee;
- basis for filing an application: in this column it is simply written “at one’s own request.”
According to the law, the employee is not required to describe the reason for leaving his position in detail. You can submit your application personally to your manager, write it to the HR department, or send it by mail with notification.
Is it possible to part with an employee retroactively?
Errors in the date of termination of an employment contract are a violation in itself, for which the employer can be held liable. If such a violation was committed consciously, for any reason, liability can be much stricter (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).
Retroactive dismissal is a violation of labor laws , but many managers and employees still take this step for one reason or another.
You can be fired retroactively:
- upon dismissal at the request of the employee or by agreement of the parties;
- with full confidence that the employee will not subsequently complain to the labor inspectorate or prosecutor's office.
It should be borne in mind that such a deception can still be revealed when checking that he was fired retroactively, because in the reporting documents the employee is no longer on staff, but in fact he continued to work.
If the head of the organization insists that the employee write a statement retroactively, then the latter has the right to contact the labor inspectorate to protect his rights.
A dispute arose. Where to contact?
If a dispute arises regarding payment for the last working day, please contact:
- to the employer with a written demand for payment on the basis of the Labor Code of the Russian Federation;
- to the labor inspectorate;
- to judicial authorities and prosecutorial authorities.
The administration is contacted through the office, with a mark of acceptance on one copy, or via mail, with a notification and a list of attachments. They write a statement - a complaint - to the labor inspectorate, attaching a copy of the work book, passport, dismissal order and calculations of the debt upon dismissal. At the same time (or later), you can contact the prosecutor’s office with the same package of documents, which can be expanded for a more complete picture of the offense (copy of the employment contract, copy of the appeal to the employer, evidence of the employer’s refusal to pay, etc.).
Within a year, you can apply to the court for restoration of justice (Article 392 of the Labor Code of the Russian Federation).
Is the employee always right?
When dismissal occurs at the initiative of the employer, conflict situations may arise. Typically, the last working day is indicated on the notice of dismissal with which the employee is introduced. He works that day and is considered fired. However, if there is, for example, absenteeism, the reasons for the employee’s absence are initially unclear.
If after some time he appears at work and cannot give a valid reason for his absence (for example, provide sick leave), the procedure for collecting evidence of violation of labor discipline begins.
It is advisable to dismiss an employee after following all legal procedures, on the day they are completed, and not “retroactively”, on the day of absenteeism.
A lot of disputes arise when dismissing someone on sick leave. Thus, there are court decisions not in favor of the employee in the following situation: a citizen wrote a statement wanting to resign, and a few days before the dismissal he fell ill. During his illness, he changed his mind, but did not withdraw his application. While on sick leave, he was fired, which the judges considered completely legal.
Legislation
The main legal act regulating labor relations is the Labor Code.
Back in 2006, an additional article was added to it (84.1), according to which the date of dismissal of an employee is determined.
According to the norm of this article, the termination of the contract is dated to the last day of work at the enterprise. But there is an exception: the date of dismissal may not coincide with the last working day if the employee was actually absent from work, but the absence is paid.
Essentially, dismissal is the termination of the relationship between the director and subordinate. And the date of dismissal is the last day when the employment relationship is still valid, but terminates at the end of the working day.
Dismissal during vacation
An employee can decide to leave the company during vacation. This could be regular or student leave, as well as parental leave.
Holiday to care for the child
A woman who is on maternity leave can also write a letter of resignation. According to the general rules, she, like other employees, must notify the employer of her desire at least two weeks in advance. In practice, if she does not plan to begin performing her duties in the near future, the settlement is often processed in the coming days after submitting the application.
Another vacation
The next vacation is paid in advance, and its end date is known in advance. Usually, if a person decides to leave the company, he writes a statement in such a way that the expected end of the employment relationship, taking into account the work, coincides with the last day of vacation. This date is considered the day of dismissal. On the same day, the employee must be given a work book, and the final payment must be made to him. In this case, there is no need to recall him from vacation.
Sometimes it becomes necessary to terminate a contract with an employee before the end of the next vacation, for example, in the event of his conscription into the army or death. The date of dismissal in this case will precede the specified event. Sometimes a situation arises that an employee needs to resign before the vacation ends. For example, he found another job. If the two-week period provided for by law expires before the end of the next vacation, then the calculated date will become the day of dismissal. But in this case, the accounting department will need to recalculate vacation pay.
There are no direct instructions on how to formalize this in the legislation. In practice, in these cases a new order is issued. It cancels the previous document on the provision of leave and payment of vacation pay, and also indicates the new, actual duration of legal rest. The document is accompanied by a memo explaining the need for such a step. Based on this, the accounting department makes a recalculation.
Also in this case, the employer has the right to withhold overpaid vacation pay (Article 137 of the Labor Code of the Russian Federation) for those days that fall between the actual dismissal and the original end date of the vacation.
Overpaid amounts cannot be withheld in the following cases:
- dismissal is due to the liquidation of the organization or reduction in staff numbers;
- the employee needs to change jobs for medical reasons, but he has refused all offers or the employer does not have a suitable vacancy;
- conscription into the army;
- death of an employee or employer;
- if the medical commission has declared the person incapable of work;
- upon reinstatement of an employee who previously held this position by a court decision or labor inspectorate;
- if the deputy manager or chief accountant was fired after a change in the ownership of the company.
Expert commentary
Potapova Svetlana
Lawyer
In all these cases, vacation pay is not recalculated, even if the employee quit the day after he went on vacation.
Student leave
Student leave, just like regular leave, has a specific end date. If the student does not plan to return to work after it, it is necessary to write an application two weeks before its completion.
