Features of dismissal on the last day of vacation: we understand all the nuances

Normative base

If the decision to leave your previous job was not made spontaneously, you can and should prepare for it. The basics of the process are set out in the Labor Code of the Russian Federation:

• Article 80 – settlement at the initiative of the hired person, notification must be sent no later than two weeks before the desired date;
• Article 78 – agreement of the parties on the departure of a specialist; termination of the contract can be carried out within one day;
• Article 72.1 – transfer to another place or elected post;
• Article 127 – termination of the contract after the end of the next vacation.

In the case of using all unused days of paid or unpaid rest before leaving, the last article 127 describes only the separation mechanism. In personnel documents and labor documents, you must indicate one of the general grounds listed in Art. 77 Labor Code of the Russian Federation.

This method of dismissal is also suitable for those who were hired on a fixed-term contract, Art. 59 Labor Code of the Russian Federation. The date of actual separation will be the last day on the vacation order, even if it extends beyond the validity period of the original contract.

Is it possible not to work for two weeks?

p>The employee can agree with his superiors and not work the allotted time. In addition, the same eightieth article of the Code lists only some cases in which you can resign early, and which are considered valid in any case:

• retirement;
• admission to study;
• when establishing the fact of violation of labor legislation by the enterprise

In the latter case, confirmation of the fact of violation of the law is a court decision that has gained legal force, or an order from the labor inspectorate. The employee himself does not have the authority and right to consider his rights violated just because he does not agree with the decision of senior management. The above list is not exhaustive. In judicial practice, there are clarifications in which cases the reason for early dismissal is legal. This usually concerns the illness of close relatives and the need for an urgent move.

One way or another, dismissal during vacation without working off is to a greater extent preferable for the employee himself than for the employer. After all, he has the opportunity to take his vacation and not sit at his workplace for the notorious two weeks. The company, for its part, does not have the right not to fire him, or to refuse to issue calculations and documents, since these actions threaten the company with the imposition of administrative penalties due to violation of labor laws.

It is possible to terminate an employment contract with an enterprise early when an agreement is reached between the parties. Unfortunately, the norms of the Labor Code do not indicate to us a specific procedure for terminating an employment relationship, but the labor inspectorate explains that dismissal with such wording is not only possible, but also necessary exactly by the number indicated in the employee’s application, or in a written agreement, which is addition to the employment contract. Accordingly, if an employee is on vacation on the day specified in the agreement, the employment contract with him is also terminated without his mandatory presence.

How to go on vacation with the intention of quitting after it ends?

There are two possible scenarios for the employee and his employer:

Articles on the topic (click to view)

• Fine for late payment of vacation pay
• What to do with unused vacation
• What to do if your employer does not pay vacation pay
• How long after employment is vacation allowed?
• Is maternity leave taken into account when calculating pensions?
• Accounting for compensation for unused vacation
• Dismissal while on maternity leave

1. The employee was sent to rest, and after that he decided to apply.
2. The person announced his resignation in advance and appeals to the employer with a request to terminate the employment contract after the end of all unpaid vacations.

Based on this, the step-by-step algorithm of actions will vary. In the first case, you need to take into account that you can avoid working off work only if the vacation duration exceeds 14 calendar days. Then it follows:

1. Document your leave (at a minimum, get a copy of the order granting it).
2. No later than two weeks before your planned return to work, write a statement of intent to leave. To avoid problems with the employer, it is better to make a copy of the application with the manager’s visa and the fixed date of acceptance of the document.
3. If the application does not indicate the desired date for termination of the relationship, the contract will be terminated exactly two weeks later. The countdown begins from the next calendar day after registration of the written request.
4. You can come for payment on the last day of the contract, that is, on the 14th day after the official delivery of the application to management. Then they will give you your work book.

The option of dismissal after using all accumulated vacations is possible only by agreement with management. Without his consent, the employee will not be able to obtain a deferment of the payment date due to the required rest. If the employer still does not object, then the action plan looks something like this:

1. It is necessary to contact the employer in writing with a request for dismissal under the conditions described in Article 127 of the Labor Code (after using all vacation days).
2. By agreement, vacation can begin either immediately after submitting the application or after two weeks.
3. Pay and work slips will, in fact, be issued the day before the start of the vacation.
4. The moment of final separation will be the last calendar date of the vacation.

In fact, termination of employment after using all vacations extends the insurance and work experience for the period of paid rest. If the employee asked for unpaid days off, then only 14 days will be included in the length of service.

How to extend or reschedule your vacation

However, sometimes annual paid leave does not coincide in time with dismissal; does the employee have the opportunity to transfer the leave to a more convenient time for him, or does this require special conditions. In general, the schedule of annual paid leave is drawn up in advance, 2 weeks before the end of the year preceding the year in which the leave will be implemented.

In fact, it is possible to achieve a postponement of vacation by special agreement with the employer himself. Otherwise, to carry out such an operation, special conditions are required, which include the following:

• Illness or injury, if this coincides with the time you are on vacation. Moreover, if an employee immediately notifies the employer about this during vacation and provides documents confirming this, then the current vacation will be extended. In the same case, if the employee reports that he was on sick leave only after returning from vacation, he will have to write a corresponding application and attach supporting documents to it, only in this case the employer can extend or provide additional days of paid leave;
• Performing civic duties - for example, serving as a jury in court, etc.

Separately, it is worth noting that if a person took sick leave during a vacation to care for relatives (regardless of whether it is a close relative or not), then the vacation is not extended.

Can an employee change his mind?

Russian legislation leaves the employee the right to change his own decision to leave. But in order for the employer to agree with this, the following deadlines must be met:

• According to the rules of Article 80 of the Labor Code of the Russian Federation , a written application can be withdrawn before the end of the notice period, even if during this period the employee is on vacation;
• If the registration is carried out in accordance with norm 127 of the Labor Code of the Russian Federation , the application must be withdrawn before the first day of vacation; a later application will not be taken into account by the employer.

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

If the employee’s decision took management by surprise, then this is not a reason to prevent him from leaving or recall him from leave. Any such attempt will be regarded as illegal, unless, of course, there is the written consent of the employee himself, Art. 125 Labor Code of the Russian Federation.

A change in the decision to dismiss must be reflected on paper; without a written response, it will be impossible to prove your position.

Is it possible to pay while on vacation?

The procedure for terminating a contract at the request of an employee is regulated by Art. 80 Labor Code of the Russian Federation. A citizen can resign at any time, including while on vacation. To do this, it is necessary to inform the employer within the period established by law.

Mostly, the notice period is 14 days, but it can be shortened or extended. The period starts counting from the next day after the submission of the letter of resignation to the employer.

Days of vacation or sick leave are counted during the period of informing the employer. That is, if you quit while on vacation, you can completely avoid working time or reduce its duration.

If the rest period completely covers the notice period approved by law, the citizen no longer needs to go to work. Otherwise, he must complete the deadline provided by law. also possible to apply for leave with subsequent dismissal. However, such an action is only permissible with the approval of the employer.

You can also avoid working time by agreement with the employer or if there are compelling reasons. Article 80 of the Labor Code of the Russian Federation allows leaving without observing the information period in situations where professional activity becomes impossible (when moving, being drafted into the army, retiring, developing diseases, and so on).

In this case, the employee can choose any day of dismissal, regardless of whether he is on vacation or at work. However, the reasons for such care must be documented.

Is it possible to dismiss an employee on the last day of vacation without his application?

Any employer initiatives without the knowledge or consent of the employee will be considered illegal. Excluding options with deliberate deception of employees, the employer should still support the oral statement of the hired specialist with written confirmation.

In the event that an employee himself wishes to terminate cooperation after the end of his vacation, management must proceed as follows:

1. Record the employee’s initiative on paper, even if the relationship with him remains unspoiled.
2. In the dismissal order, indicate the end date of the vacation if the resignation was announced before it was formalized.
3. If the application was submitted after the start of the vacation, then the calculation must be made on the first day after the end of the vacation period.

Formally, this last day (according to the schedule) will be considered full work.

Is it always possible to quit during the vacation period?

An employee planning to terminate his employment relationship has the right to declare dismissal during vacation, regardless of what kind of vacation he is on. The procedure for dismissal in any case is similar to that described above.

By the way, dismissal is possible not only during vacation, but also during sick leave. In the latter case, it is carried out on the same grounds as dismissal while on vacation. The procedure for dismissal, the calculation of deadlines and the implementation of calculations will be similar to those provided for dismissal during the vacation period.

What entry will be in the labor record?

Regardless of how and when the employer was warned, clause 3 of Art. will be indicated in the employee’s work book as the basis. 77 Labor Code of the Russian Federation. The difference will be noticeable only in the dates:

• the last day of the agreed vacation (paid or unpaid);
• the day of termination of the contract will occur 14 days after the application is delivered to the management.

According to Art. 140 of the Labor Code of the Russian Federation, payment of all debts and compensations must be made on the last working day, that is, on the day of actual presence at the workplace.

Employee calculation

In Art. 140 of the Labor Code states that the termination of an employee’s employment relationship must be accompanied by a full settlement between the parties on the day of dismissal.

The calculation note compiled by the HR and accounting departments includes a list of payments due to the employee:

• salary;
• compensation for non-use of vacation;
• other payments provided for by the collective or labor agreement.

If the vacationer is far from the office, the money will be given to him at another convenient time.

If there is a dispute between the parties regarding the amount of payment, the employer should pay the amount that is not in dispute. The next step will be to contact the labor inspectorate or court. Experts will determine the legality of the claims of both parties.

Pros and cons of such dismissal

In order not to regret the consequences of an incorrect decision, you need to take into account all the positive and negative aspects of its implementation.

This is important to know: Are days off on vacation paid?

In addition, the entire period of unused vacation will be included not only in the insurance period, but also in the continuous professional experience. This is important, first of all, for doctors, teachers, miners, workers in hazardous industries and other specialists who are subject to certification or preferential pension provision.

A way to quit on the last day of vacation using the mechanism of Art. 127 of the Labor Code of the Russian Federation, is more suitable for those who have not used their right to rest with guaranteed payment for a long time. Such a procedure will allow the specialist to immediately begin searching for a new place, being fully confident that he will not be kept at his previous location for another two weeks.

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When to fire: the employee's dismissal date

The duration of the dismissal period depends on the period specified by law for informing the employer (working off):

• 14 days - standard period (Article 80 of the Labor Code of the Russian Federation);
• 3 days - when working on a probationary period (Article 71 of the Labor Code);
• 3 days - for seasonal activities (Article 296 of the Labor Code);
• 3 days - for a fixed-term contract with a validity period of up to 2 months (Article 292 of the Labor Code);
• 1 month - for management (Article 280 of the Labor Code);
• 1 month - for coaches and athletes, but an increase in the period is permissible (Article 348.2).

When going on vacation with subsequent dismissal, its duration coincides with the end of the vacation. When writing an application during vacation, it is important to correctly set the date of termination of the contract, taking into account the work. It is permissible not to indicate it in the application, since the deadline starts from the next day after the employer receives the paper. This should be especially taken into account when sending a document by mail.

If an employee quits without working for good reasons, they must be indicated in the application (for example: “I ask you to terminate the contract due to retirement”). Otherwise, you will have to take into account the notification period specified by law.

How to resign voluntarily on the last day of vacation?

Dismissal on the last day of vacation is possible only at the personal request of the employee; the manager cannot terminate the agreement with a subordinate on his own initiative.

Leaving an enterprise in this way occurs in 2 cases:

• the resignation letter was submitted before going on vacation;
• The employee submitted a request to resign already from vacation.

When a person quits immediately after the end of the vacation, the last day of work is considered to be the 14th day after the notification of intention to leave, which is the final day of rest.

Who cannot be given days off before terminating an employment contract?

In accordance with Article 127 of the Labor Code of the Russian Federation, not all subordinates can rest before terminating the employment agreement; these include the following persons:

1. Seriously violated their duties.
2. Having disciplinary sanctions.
3. Those who have made serious mistakes when working with money or valuable documents.

If an employee is laid off, then after notification of this he has the right to take days off before leaving.

Other situations

So, is it possible to fire an employee on the last day of vacation? Yes, if this happens on his initiative. Such a procedure cannot be carried out without the consent of the employee. In this case, he will have every right to appeal this decision in court.

Also, during vacation, various situations may arise. For example, a person gets sick. In this case, the organization is not obliged to extend vacation days or make any changes regarding the date of dismissal.

Responsibilities include only payment of sick leave, in accordance with established rules. Even if an employee dies due to illness, no changes are required, since from the start of the vacation the organization no longer bears obligations of this nature. Dismissal on the last day of vacation is a very real situation. The company only has to prepare all documents in accordance with labor laws.

Contract termination procedure

The algorithm for terminating a contract will differ depending on when the application for leave is submitted: while already on it, or in advance with subsequent dismissal.

In addition, there are nuances if the vacation is provided in advance. The main difference lies in the procedure for final payment to the employee.

If a subordinate decides to rest before leaving

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

If leave is granted, for example, from August 1 to August 29, then the official day of dismissal will be the 29th, and the issuance of compensation and documents to the subordinate must be made on the final day when the person is present at the workplace.

Algorithm for terminating a contract:

1. Providing subordinates with a statement of desire to terminate the agreement with the boss.
2. Agreeing with the manager on the nuances of termination of work (if there are disagreements).
3. Receipt of documents and all payments before the 1st day of vacation.

Even when the last working day is a day off, the manager is still obliged to terminate the employment contract with the employee on this date.

You cannot take 2 vacations at once before leaving. Additional days will be compensated when calculating dismissal payments.

For reference! For management positions, the period for submitting an application for leave before termination of employment is 1 month.

If a person submits an application while already on vacation

A person who is already on vacation can also leave on the final day of vacation. In this case, the procedure for dismissal and calculation is as follows:

1. Submitting an application in person to your boss or by mail.
2. After receiving the dismissal order, the boss signs it.
3. An order is issued to terminate the contract with the employee.
4. A person receives the final payment.

If a subordinate submits a request for dismissal during the rest period, then the calculation will be made after 14 days of notice. That is, if a person submitted a document for leaving on March 1, then the countdown of 2 weeks will begin on the 2nd, and he will receive work papers and monetary compensation on March 15. In this case, it is important that at least 14 days of the required days off remain, otherwise after that the employee may be asked to stay at the workplace until the warning period expires.

Features of calculation if a person rests in advance

It happens that a person takes a vacation in advance, that is, according to the schedule, it is too early to give days off, but the boss provides them. If during this period the employee decides to resign of his own free will, then up to 20% of the amount for days not worked can be deducted from each compensation due to him. In this case, personal income tax must be deducted from each payment. But under certain circumstances, the employer does not have the right to deduct this percentage from the subordinate’s compensation. For example, if he is drafted into the army or the company is liquidated.

If the payment due to dismissal is less than the employee’s debt for vacation taken in advance, then the director may demand the required amount through the court or refuse to collect it.

Nuance! The director himself decides whether to provide unscheduled rest to a subordinate before he leaves the organization or not. This is the right, not the responsibility of the leader.

Registration procedure

Everything is quite simple; there is no need to prepare any special documents for this procedure.

Application for leave

If you are planning to quit after your vacation, then you should wait for the annual vacation according to the schedule that was drawn up in advance, write a letter of resignation of your own free will before it leaves, and thus quit without working for 2 weeks.

If you have a good relationship with your superiors, then you can agree to postpone the planned vacation to the working period after writing the application.

The resignation letter will be standard, not particularly different:

• In the upper right corner, the information of the employer, the organization and the employee himself is indicated - full name and position, the organization indicates the address of the department in which the employee was specifically listed;
• This is followed by the name of the document with a small letter - “statement”;
• Then the contents of the document itself indicating the reason for dismissal;
• At the end, the date is indicated and the employee’s personal signature is necessary to verify if necessary and confirm the authenticity of the document.

Signing of the application by the authorities

After reviewing the document, the boss signs the document, but the resigning employee does not have to wait for this. You can go on vacation immediately after submitting your application to the HR department.

Order of dismissal

Finally, after this, a dismissal order is created, which is signed by both parties.

So, it turns out that dismissal after a vacation is a fairly simple procedure, and every employee who has not been found to have violated the Labor Code or local documents of the organization itself can use it.

Is it possible to withdraw an application?

When leaving on the last day of vacation at his own request, the subordinate has the right to change his decision and remain at the enterprise.

In the following cases, a person can withdraw an application:

• before the start of the rest;
• until a new employee was invited to take his place.

If a person decides to stay in the organization while on vacation, he can try to withdraw his application, but the manager has the right to refuse him.

Date of order: what date is considered the day of dismissal?

• If a person goes on vacation with subsequent termination of the contract, the date of dismissal is the last day of rest. The order is issued on the same date.
• When submitting an application for dismissal during vacation, the date of termination of the contract is indicated in the application, taking into account the work. Moreover, it can be inside the rest period or outside it (but then the person will have to go to work). It is also permissible to resign while on vacation by agreement of the parties.
• If the employer does not mind letting the employee go without working, the date of termination of the contract is reflected in the agreement and, accordingly, in the order.
• If an employee leaves without complying with the notification deadlines for good reasons, when carrying out professional activities is impossible, he has the right to resign on any day of his vacation. The order is issued on the date indicated in the application.
• If an employee is on vacation, taking days without pay, and decides to quit, the procedure has the same features.
• If a woman on maternity leave terminates the contract, she does not need to work. It is enough to submit a letter of resignation to the employer with a date designated at her discretion.

Termination of the employment contract at one's own request at this point in time

Labor legislation adheres to a policy of free labor, prohibiting forced labor (Article 4 of the Labor Code of the Russian Federation) and allowing you to resign at your own request (Article 80 of the Labor Code of the Russian Federation) at any time, be it during work, sick leave or vacation: you can write a statement at any time point in time when the employee himself decides.

Termination of an employment contract before or during a vacation allows an employee to avoid working off:

• at 2 weeks – as a general rule;
• 1 month – for directors of organizations, athletes and coaches;
• at 3 days – for interns and employees working under a temporary contract.

Dismissal on the last day of vacation will not relieve the employee of this obligation. Legislatively, there is no such thing as working off: the employee is only obliged to notify the employer in advance (14 days or another period specified above) of his desire to leave, continuing the work process as usual. This period is informally called working off.

Until the end of this period, the employee has the right to withdraw the application and continue working.

Since in accordance with Art. 14 of the Labor Code of the Russian Federation, the deadlines associated with termination of the contract begin to run the next day after the grounds arise (in this case, this is the employee’s statement).

Important! If the desire to leave work appears at the end of the vacation, the employee will have to return to his duties for the duration of his work.

Therefore, the employee will receive at the exit:

• salary worked during this time;
• compensation for 2.33 unused days of the next vacation (since the vacation itself, from which the employee leaves, is included in the length of service).

Procedure

Such termination of an employment contract is carried out according to general rules.

1. Submitting a resignation letter to management.

It is drawn up in writing and contains:

• in the header - the name and position of the head of the organization in whose name the application is being submitted;
• in the main part - a request to dismiss at your own request with reference to clause 3, part 1, art. 77 Labor Code of the Russian Federation;
• date and signature of the employee with transcript.

The employee is required to select the application submission method:

• in person, coming to work on the last day of vacation;
• by registered mail;
• by email (the employee must have an electronic signature).

1. Workout.

It has already been said above that the employee will have to work the required period if he does not have valid reasons specified in Part 3 of Art. 80 of the Labor Code of the Russian Federation (for example, he resigns due to retirement), or if he cannot agree on this with management, in accordance with Part 2 of Art. 80 Labor Code of the Russian Federation.

During work, the employee completes all remaining tasks. For example, employees with full financial responsibility will be required to transfer affairs after management conducts an inventory.

1. Preparation of dismissal orders and personnel documents.

Any changes in the state are recorded by local regulations. When terminating an employment contract with an employee or upon its termination (in cases where neither party initiates the dismissal), the head of the organization issues an Order (using the unified form T-8 or using company letterhead), which contains:

• a link to the contract being terminated;
• employee information;
• the reason for dismissal with reference to the norm of the Labor Code of the Russian Federation (in this case - clause 3, part 1, article 77).

The dismissed person must familiarize himself with this document with his signature.

On the last working day, the HR specialist:

• draws up a work book and personal card of the employee, entering information about dismissal;
• prepares other documents (certificate of income, information on insurance premiums, 2NDFL).

The work book with a package of documents is handed over to the person being dismissed, for which he signs on his personal card, which remains in the organization’s archives.

1. Settlement with an employee.

In accordance with Art. 140 of the Labor Code of the Russian Federation, it includes the employee’s salary, proportional to the days worked. Vacation compensation is controversial because the employee has just returned.

Reference. Since the vacation itself is included in the length of service, and the 2.33 days of vacation established by law are accrued after 15 days worked, the dismissed person will receive a certain amount of compensation.

However, if his previous leave was served in advance, 20% may be collected from the employee’s salary as compensation to the organization.

Rest followed by termination of the employment contract

We may also be talking about another situation when an employee applies for leave with subsequent dismissal. According to all personnel documents, termination of the employment contract will occur on the last day of rest, despite the fact that the last working day will be considered the day before going on vacation.

So, Derbanova E.M. submitted an application for leave with subsequent dismissal on 08/01/2019.

This vacation was not a regular one for her (she was supposed to be sent on vacation at the end of August according to the schedule), but the manager agreed to meet the employee halfway and give her the opportunity to go on vacation.

Derbanova’s last working day, in accordance with her application and two-week work, was 08/15/2019, and on August 16 she was listed as on vacation. The last day of rest is indicated as 09/16/2019, this date will be indicated as the day of termination of the employment contract.

On the last working day (the day before vacation), the employee is given:

• work book and other documents;
• calculation, which includes wage balances (calculation note in form T-61) and vacation pay (calculation note in form T-60).

If Derbanova’s vacation had come in the order of priority on August 16, and she had submitted an application before going on vacation, she would not have had to work 2 weeks.

Termination of contract during holiday

An employee can be fired on the last day of vacation and in one more situation: when submitting an application during vacation.

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

Let's say Ivanov L.D. went on vacation for 28 days. He decided not to return from vacation, and 2 weeks before the end of the vacation he handed over to the organization a letter of resignation of his own free will.

• the last day of vacation, the last working day and the day of termination of the contract will coincide;
• the employee must come to work on this day to obtain a work book or agree to have the documents sent by registered mail;
• as a settlement, he will be paid the remaining salary and compensation for the accrued 2.33 unused days of the next vacation.

Are they fired on parental leave for children under 3 years of age?

While on maternity leave or parental leave, an employee retains the right to resign at his own request.
Management will probably terminate the employment relationship with such a subordinate without requiring two weeks of work. After all, despite the employee retaining his position during such a long break in work, another person is already working in this place, and there is no need to find a new specialist and transfer cases. It is worth noting that parental leave for a child up to 3 years of age can be used by both the mother and other relatives or guardians.

So, the law does not prohibit an employee from resigning at his own request during vacation. The Labor Code provides for only one restriction: the employee must notify the director of his desire to leave the company in advance. But as practice shows, two weeks of work may well become a vacation followed by dismissal.

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At the initiative of the employer

There are also situations when the employee himself does not want to quit on the last day of vacation, but it is during this period that he is given a work book and a settlement is made with him.

In accordance with Part 6 of Art. 81 of the Labor Code of the Russian Federation, it is prohibited to dismiss employees during their vacation, if the termination of employment relations is not related to the liquidation of the organization. This also applies to the last day of vacation.

Liquidation of an organization

Since liquidation, in accordance with Art. 180 of the Labor Code of the Russian Federation, they warn 2 months in advance (the employee is sent a written notice in which he must sign), a situation with dismissal on the last day of vacation could arise in the following cases:

• the employee was notified in a timely manner, but went on vacation according to the schedule; the liquidation coincided with the last day of rest;
• the employee wrote an application for leave with subsequent dismissal due to liquidation.

Upon liquidation, the employer must:

• notify the employee in a timely manner;
• offer him to resign early, paying compensation for the days remaining before the liquidation of the organization in the amount of the average salary (the employee must write a statement of consent to such dismissal);
• pay severance pay for the duration of employment (within 2 months from the date of liquidation, sometimes this period is extended by 3 months).

Staff reduction

You cannot lay off an employee who is on vacation. But since this procedure is almost similar to liquidation (only in case of layoffs, the employer is obliged to offer the laid-off employee vacancies in the organization), it is necessary to highlight several situations:

• the employee was notified before going on vacation, wrote a statement with subsequent dismissal;
• The employee received notice of layoffs while on vacation and will be fired later, after returning from vacation.

The latter situation is controversial, since labor legislation does not directly indicate that dismissal must be made strictly two months after employees receive the notice . If we turn to the wording, then in Art. 180 of the Labor Code of the Russian Federation contains the words “not less than 2 months”.

Dismissal after vacation at your own request

Sometimes, after a good rest, you are completely reluctant to go back to work, either because you decided to connect your life with another type of activity, and this realization came precisely during the vacation period, or because you decided to move or make other changes in your life. life. Personally, this year I decided to change my job, wrote an application and immediately after that I went on paid annual leave, so my official resignation from work and the end of my vacation coincided.

As many probably know, within 2 weeks after writing a letter of resignation, an employee has the opportunity to change his mind, withdraw the letter and return to his previously occupied position in this organization. It was for these purposes that I combined work and vacation - so that I had time to think, weigh all the pros and cons, and finally decide whether this position, this place of work is suitable for me, or is it really worth changing place of employment. It is precisely this development of events in which a person wants to quit immediately after a vacation that I will talk in more detail about.

By agreement of the parties

On the last day of vacation, an employee can be dismissed by agreement with the employer (Article 78 of the Labor Code of the Russian Federation).

Unlike leaving voluntarily, such dismissal can be done in one day . That is, on the last day of vacation, the employee and the employer sign an agreement that includes the terms of dismissal, payments, etc., and the next day, which should have been the employee’s working day, he no longer goes to work.

Important! To carry out such termination of the contract, it is necessary that one of the parties sends a dismissal proposal to the other the day before the last day of vacation.

The proposal can be written (including in the format of an electronic document) or oral in front of witnesses.

After negotiations (it can also be carried out remotely, using audio or video communications), the parties sign an agreement. To do this, the employee will still have to come to work if it is not possible to sign a digital signature.

Unlike a statement, an agreement between the parties cannot be revoked.

Registration of a work book

The Labor Code, although it operates with the concept of “work book,” does not regulate in detail the procedure and rules for registration. When working with this document, you should rely on Government Decree No. 225 of 2003 and the Ministry of Labor No. 69, issued in the same year.

The notice of dismissal must contain the following information:

The fact that a person is on leave before dismissal can be detected if you pay attention to the dates of the order and dismissal. If they coincide or differ by several days, it can be said with a high degree of probability that the person was at work until the last day. If there is a significant difference in dates, it is likely that the citizen was on vacation before his dismissal.

Example

Date of dismissal: 06/01/2018

Text of the entry: The employment contract was terminated at the initiative of the employee, paragraph 3 of Article 77 of the Labor Code of the Russian Federation.

HR specialist: Moshkarova A.S.

Introduced by: Zakirov R.U.

Information about the order: Order No. 55-l dated May 15, 2018

When preparing a work permit, you cannot use abbreviations and abbreviated names; registration is done in water- and light-resistant ink in black, purple or blue.

For your information

If an error is made during registration, it is prohibited to correct it by applying a corrective agent. An additional entry is made indicating the error.

For other reasons

These include:

• expiration of the temporary contract or departure of the main employee;
• termination of the contract due to exceptional circumstances (for example, complete disability of the employee).

If the contract expires, the employer notifies the employee 3 days in advance (Article 79 of the Labor Code of the Russian Federation), while when the main employee returns, the temporary one can be notified 1 day in advance, having studied the Order of his dismissal.

Dismissal due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation) is formalized within one day.

Lawyers' answers (1)

In accordance with Part 1 of Art. 127 of the Labor Code of the Russian Federation, upon dismissal, the employee is paid monetary compensation for all unused vacations. According to Part 2 of Art. 127 of the Labor Code of the Russian Federation, upon a written application from an employee, unused vacations may be granted to him with subsequent dismissal (except for cases of dismissal for guilty actions). In this case, the day of dismissal is considered the last day of vacation. By virtue of Part 3 of Art. 84.1 of the Labor Code of the Russian Federation, the day of termination of the employment contract in all cases is the last day of work of the employee, with the exception of cases where the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal law, his place of work (position) was retained. On the day of termination of the employment contract, the employer is obliged to issue the employee a work book and make payments to him in accordance with Art. 140 Labor Code of the Russian Federation. Upon a written application from the employee, the employer is also obliged to provide him with duly certified copies of documents related to work (Part 4 of Article 84.1 of the Labor Code of the Russian Federation). According to Part 9 of Art. 136 of the Labor Code of the Russian Federation, payment for vacation is made no later than three days before its start. In accordance with Part 1 of Art. 140 of the Labor Code of the Russian Federation, upon termination of an employment contract, payment of all amounts due to the employee from the employer is made on the day of the employee’s dismissal. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment. According to the explanations given in the Determination of the Constitutional Court of the Russian Federation dated January 25, 2007 N 131-О-О, the employer, in order to properly fulfill the obligation established by the Labor Code of the Russian Federation (in particular, Articles 84.1, 136, 140 of the Labor Code of the Russian Federation) to formalize dismissal and pay with the dismissed employee, must proceed from the fact that the employee’s last day of work is not the day of his dismissal (the last day of vacation), but the day preceding the first day of vacation. The Letter of Rostrud dated December 24, 2007 N 5277-6-1 states that when an employee is granted leave followed by dismissal, the day of dismissal is considered the last day of leave, however, all settlements with the employee are made before the employee goes on leave, since after its expiration the parties no longer will be bound by obligations. Conclusion. When an employee is granted leave with subsequent dismissal, all settlements with the employee are made before the employee goes on leave, on the day preceding the first day of leave.

Explanations of Rostrud (letter dated December 24, 2007 No. 5277-6-1): “In accordance with Art. 127 of the Labor Code of the Russian Federation, upon a written application from an employee, unused vacations may be granted to him with subsequent dismissal (except for cases of dismissal for guilty actions).

Providing the employee with unused vacation followed by dismissal is the right of the employer, and not his obligation.

When an employee is granted leave with subsequent dismissal, the day of dismissal is considered the last day of leave, because upon its expiration, the parties will no longer be bound by obligations. 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.

Who cannot get leave upon dismissal?

There is a category of employees who are not granted leave with subsequent dismissal. Thus, an employee will be denied rest if he:

• missed work without a good reason;
• falsified documents or provided other false information during employment;
• ignored or dishonestly performed official duties;
• was observed at work in a state of alcoholic or other form of intoxication;
• revealed company secrets or disseminated government information;
• intentionally damaged company property, resulting in significant losses;
• stole or embezzled entrusted funds;
• neglected safety requirements, which could cause or lead to serious consequences both for the company and for other employees;
• committed an immoral act or lost the trust of management.

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

In this situation, the manager independently decides whether to grant the employee leave. In case of refusal, the person must be paid compensation, the amount of which is calculated individually.

Who can take advantage of this opportunity

Going on vacation and resigning immediately after it ends is, in fact, very convenient, but it is worth mentioning that not every employee can do this. The fact is that only those employees who quit not because of a violation of the Labor Code of the Russian Federation or other local documents of the organization can resign in this way.

So, among the violations that can lead to dismissal are the following:

• When applying for a job and signing an employment contract, the employee used or provided the HR department with invalid or counterfeit documents;
• Violation of work discipline, non-fulfillment or incomplete fulfillment of work duties, violation of labor regulations, etc.;
• Absenteeism without warning, frequent tardiness, which affects the overall performance of the employee;
• Also, if an employee comes to work in a state of intoxication, either alcohol, drugs, or any other state, which does not allow the employee to adequately perform his duties;
• If we are talking about an organization or position that involves cooperation with a trade secret, official or state secret, then the employee is accordingly obliged not to disclose such information, about which the person signs the relevant documents when applying for a job. If this secret is violated, that is, it is disclosed, the employee is also deprived of the opportunity to take advantage of such dismissal;
• Theft, embezzlement or intentional damage to property in the workplace;
• Actions on the part of the employee that led to an emergency event at the enterprise or to an accident, as well as entailing a serious threat of the occurrence of such cases;
• And finally, poor quality work or immoral behavior of the employee, which leads to the desire of the employer himself to dismiss, that is, dismissal does not fall into the category of “at will.”

This is important to know: Medical examination during vacation (if the employee underwent medical examination while on vacation)

It turns out that if you are an exemplary employee, and your bosses have no complaints about the quality of your work and compliance with the work schedule, then you can go on vacation without any obstacles before you quit, thereby replacing your work off.

Procedure

To comply with the dismissal procedure and prepare all documents, you must follow a certain algorithm:

• the employee draws up a letter of resignation in writing and submits it to the manager for review;
• the employer signs the application and submits it to the HR department. After which he issues an order to grant the employee leave;
• the order is registered in the relevant documents and submitted to the employee for review and signature;
• a settlement note is drawn up;
• an order is issued to terminate the employment relationship with the employee;
• the order is registered in the accounting journal and handed over to the employee for review and signature;
• compensation is calculated, all monetary payments due to the employee are issued;
• a record of dismissal is left in the employment record;
• Employees are given all the necessary documents.

General provisions

When dismissing at one's own request, one proceeds from two norms permissible by law (Article 127 of the Code of the Russian Federation):

1. Termination of the employment relationship occurs immediately after the required work or without it (by agreement with the administration).
2. The parties draw up documentation subject to the prior use of the next vacation days. The duration is determined according to standard rules, based on the calculation of 28 days/1 year.

When the resigning employee has taken the required number of days off, no additional compensation is due. When there is no desire in plans to use paid days while maintaining length of service and earnings (for example, if there is another, pre-agreed place of work), the person is paid monetary compensation in accordance with Article 126 of the Labor Code.

Statement

If an employee plans to take a vacation and then resign, then he needs to submit two applications: for vacation and dismissal. However, it is established at the legislative level that the text of both statements can be included in one.

The document itself can be drawn up either in printed or handwritten form. In the second case, you need to use a pen with black or blue ink. The unified form of the document is not approved at the legislative level, which allows the employee to draw it up in any form or use a specially designed form issued by the company’s HR department. The main requirement for the application is the complete absence of errors. It requires information to be reflected:

• on the exact name of the organization, as well as the position and full name of the person in whose name the application is being submitted;
• about the position and full name of the employee who plans to resign;
• about the title of the document – ​​“Application”;
• about an employee's request. This paragraph requires you to reflect the desired start date of the vacation, the exact number of calendar days, as well as a request to terminate the employment relationship.

At the end, you must indicate the date the document was drawn up, the applicant’s signature with a transcript.

The application must be submitted to the HR department or manager. This can be done in person or by registered letter with notification. The document must be submitted 14 days before the desired start date of the vacation.

After reading and signing the application, the manager must issue an order to grant leave, and at the end of it, an order to terminate the employment relationship in the T-8 form. The date of the dismissal order may coincide with the date of dismissal.

Is it possible not to allow an employee to go on vacation before dismissal?

First of all, let’s figure out whether the employer is obliged to let the employee go on vacation in such a situation. Let us say right away that in most cases such an obligation does not arise. There are only two circumstances when an employee must be given leave before dismissal:

1. The company has approved a vacation schedule, and the vacation of the resigning employee falls exactly at the time before dismissal . That is, in fact, the employee decided to work until the vacation included in the schedule in advance, and after that not to go to work.
2. The employee is a parent, guardian or trustee of a disabled child under the age of 18 or belongs to another category of persons entitled to leave at a time convenient for them .

If the situation is different, then the employer does not have an obligation to allow the employee to go on vacation before dismissal. The parties must come to an agreement.

Next, we will consider the situation if the employer and employee managed to agree on the provision of leave before dismissal.

General rules for dismissal

Labor legislation stipulates that the day of dismissal is the last working day (Article 84.1 of the Labor Code of the Russian Federation). It is on this day that it is necessary to give the employee his personnel documents and make all payments to him. Otherwise, the organization will face adverse consequences. The last day of dismissal is considered a working day for workers with a shift schedule. When the last day of a shift, for example, for a security guard falls on Saturday, and this day is a day off for the entire company, then settlements with the dismissed employee must still be made on Saturday. In order not to violate the letter of the law, an accountant and personnel officer will have to be brought in on a day off to make all the necessary payments and make the appropriate records. And it is not necessary to involve the general director on Saturday, because the dismissal order can be issued earlier, for example, on Friday.

Cases when the last day of vacation may be the day of dismissal

1. The most common situation when the last day of vacation is the day of dismissal is the provision of vacation with further dismissal. Often, an employee, having written a statement of his own free will, first takes a leave of absence, and then officially terminates his employment relationship with the organization. In accordance with Part 2 of Art. 127 of the Labor Code of the Russian Federation, the last day of vacation is the day of dismissal. However, it is necessary to make a full calculation and issue a work book before the start of the vacation itself - on the day the employee actually works.
2. It is necessary to distinguish between dismissal during vacation and vacation with further dismissal. The staffing procedure is different here. A person, already on vacation, notifies the employer of his intention to resign. This is especially true for workers who look after children. In this case, such an employee must be dismissed, taking into account a two-week notice period. But the employer and employee can mutually agree to dismiss from a different date specified in her application. Full settlement with the employee and issuance of a work book are made on the day of termination of the employment contract. In this case, the employee has the right to change her mind and withdraw her application.

Calculation and payments upon dismissal during vacation

An employee dismissed at his own request during vacation is entitled to the following payments:

1. Wages for all days worked before vacation.
2. If there are unused vacation days left, then compensation for them.
3. Severance pay, which is paid in the case and in the amount as provided for in the employment contract.

If an employee quit during the vacation period, and as a result, vacation pay was recalculated, then according to Part 2 of Article 137 of the Labor Code of the Russian Federation, the employer can (at its own discretion) withhold from the employee vacation pay paid in excess of the new calculation. He has the right to withhold no more than 20% of the amount paid (including personal income tax deduction). In situations where all payments have already been made, there is nothing to withhold from, then it is permissible to sue the former employee to demand recovery. It is prohibited to make deductions if the employee was dismissed due to:

• the absence in the company of another vacancy required by the employee on a medical prescription, or the employee’s refusal of the proposed transfer;
• liquidation of the company;
• staff reductions;
• conscription for military and alternative civilian service;
• reinstatement of the previous employee to his position (for example, such reinstatement is possible by court decision);
• obstacles to labor relations in emergency situations (natural disasters, epidemics and others).

If the vacation is taken “at your own expense”

Leave without pay can be either annual, provided to beneficiaries (for example, pensioners), or extraordinary, at the request of the employee.

Citizens are entitled to five days of administrative unpaid leave in the event of a wedding, the birth of a child, or the death of close relatives. Such leave is entitled to any employee on each occasion, the total annual amount is not limited (for example, an employee can go on leave if he gets married, and then another five days upon the birth of a child). An employee cannot be dismissed during such leave, but he has the right to apply for dismissal on his own initiative.

When an employee goes on unpaid leave without permission and does not notify the manager about it (which is equivalent to absenteeism), he can be fired at the initiative of the employer. Or if a vacationer is delayed on vacation, the manager has every right to get rid of the “truant.” He is obliged to notify the dismissed person 14 days in advance. If the employee does not return to the workplace and does not sign the dismissal order, all documents are sent to him by mail. It is always better to send such documents with a return receipt, so that there is evidence not only of sending the letter, but also of its receipt.