(in other words, at the initiative of the employee) is one of the most common grounds for termination of an employment contract. The initiative to terminate the employment relationship comes from the employee and does not imply its approval by the employer, because a person cannot be forced to work against his will. However, even when resigning at your own request, certain rules must be followed.
The procedure for dismissal at will
The procedure for dismissal at will involves, first of all, the employee writing a letter of resignation. The application indicates the date of dismissal and its basis (“at one’s own request”), it must be signed by the employee indicating the date of preparation.
Indicate in the application reason for voluntary resignation optional. However, if circumstances require you to resign, then the reason must be indicated, and HR employees may ask you to confirm it with documentation. In other cases, the phrase “I ask you to fire me at your own request on such and such a date” is sufficient.
After the resignation letter has been submitted to the personnel service, a dismissal order. Commonly used unified form such order (), approved by Resolution of the State Statistics Committee dated January 5, 2004 No. 1. The order must make a reference to the Labor Code of the Russian Federation, as well as provide details of the employee’s application. The employee must be familiarized with the dismissal order against signature. If the order cannot be brought to the attention of the dismissed person (he is absent or refused to familiarize himself with the order), then a corresponding entry is made on the document.
Timing of voluntary dismissal
By general rule, enshrined in, the employee must notify the employer of the upcoming dismissal no later than two weeks in advance. This period begins the day after the employer receives the resignation letter.
However, the so-called two week period working hours can be reduced by agreement between the employee and the employer. In addition, the law does not oblige the employee to be at the workplace during the period of notice of dismissal. He can go on vacation, sick leave, etc., while terms of dismissal will not change.
From general rule There are statutory exceptions to the two-week work period. Thus, if you are dismissed during the probationary period, the notice period for dismissal is three days, and if the head of the organization is dismissed, it is one month.
Calculation upon dismissal at one's own request
Calculation upon dismissal at one's own request, as well as for other reasons, must be made on the day of dismissal, that is, on the last day of work. Calculation upon dismissal involves the payment of all amounts due to the employee: wages, compensation for unused vacations, payments provided for by the collective and labor agreement. If the dismissed employee used vacation in advance, the paid vacation pay is recalculated, and the corresponding amount is deducted from the salary upon final payment.
If an employee was absent from work on the day of dismissal and was unable to receive a payment, he has the right to apply for it at any other time. The amount due to him must be paid no later than the next day after the application.
Dismissal at your own request during the vacation period
Resign at your own request during the vacation period the law does not prohibit. Such a prohibition is provided only for dismissal at the initiative of the employer. An employee has the right to write a letter of resignation while on vacation, or to include the date of proposed dismissal during the vacation period.
If an employee wants to submit a letter of resignation while on vacation, there is no need to recall him from vacation
An employee can also resign of his own free will after using his vacation. Please note that granting leave followed by dismissal is a right, not an obligation, of the employer. If such leave is granted, the day of dismissal is considered to be the last day of leave. However, for the purposes of settlements with the employee, the last day of work in this case is the day before the start of the vacation. On this day, the employee should be given a work book and all necessary payments should be made. This is a kind of exception to the general rule given, confirmed.
Dismissal at will during sick leave
Quit voluntarily while on sick leave Can. prohibits such dismissal only at the initiative of the employer.
An employee has the right to submit an application for dismissal during a period of temporary incapacity for work. A situation may also arise when the previously agreed upon dismissal date falls on the sick leave period. In this case, the employer will formalize the dismissal on the day specified in the resignation letter, provided that the employee has not withdrawn this application. The employer does not have the right to independently change the date of dismissal.
On the last day of work, even if it falls on sick leave, the employer makes the final payment and issues a dismissal order, in which he makes a note about the employee’s absence and the impossibility of familiarizing him with the order. The employee will come for the work book after recovery or, with his consent, it will be sent to him by mail. All amounts due to the employee will be paid to him
Dismissal during vacation is prohibited in Russia, but there are cases when an employee has to be dismissed from his position during the planned vacation period. How to properly complete this procedure without violating the law?
Reasons for employee dismissal
Vacation at your own expense is permissible no more than a certain period per year, which is specified in the employment contract. If an employee takes rest more often, it is not profitable to keep him at work.
Registration of a dismissal letter
Dismissal procedure:
- Based on the employee’s statement, you need to draw up a dismissal order. It indicates the employee’s full name, position, reason for dismissal, and date. The document below must be signed by the employer and the dismissed person. But if the employee, while on vacation, cannot put his signature, then a note is made in the order and a free form act is drawn up with the signature of several witnesses.
- After completing the order, the former employee must receive a settlement.
- On the day of dismissal, the employee must be given a work book with a note indicating the reason. For example, dismissed at his own request in accordance with Art. 70 Labor Code of the Russian Federation.
In addition to the above, a former employee may require a certificate of income 2 personal income tax and 4 N. You have no right to refuse its issuance.
What is included in the calculation
The calculation includes the following payments:
- Salary for the days a person worked in a month before going on vacation. For example, if the vacation began on May 10, then for working days from 1 to 10 the employee is entitled to wages.
- Compensation for days remaining from vacation. Of course, if the vacation ends on the day of dismissal, then payment is not due. If over the past years there are days left from vacations that have not been taken off, then they must be paid for (Article 127 of the Labor Code of the Russian Federation).
- Compensation if the employee took only part due vacation. The remaining days are paid.
- Severance pay, if specified in the employment or collective agreement. Otherwise, according to the law, upon dismissal of one’s own free will severance pay the employee is not entitled to.
The calculation is issued along with the work book on the day of the date specified in the dismissal order (paragraph 5 of Article 80 of the Labor Code of the Russian Federation).
During vacation, an employee cannot be dismissed without good reason. You should not fire a person from work during maternity or administrative leave. This could end in litigation. If an employee leaves for study, and you, as an employer, don’t like it, you can try to conclude an oral agreement with him and terminate his employment with the consent of the parties. In this case, the employee will require financial compensation for his time. But when work is idle, and it is legally impossible to fire the incumbent, this is a way out of the situation.
Dismissal during vacation is processed in the same way as in all other cases. The only difference in calculation is the payment of compensation for vacation.
Quitting while on vacation is very common. At the same time, the employer does not have the right to restrict the employee from severing the employment relationship. All this is specified in the Labor Code of the Russian Federation.
Features of this type of dismissal
The employee has the opportunity to break labor relations at any time, including during vacation. An employer may, at his personal request, dismiss an employee who is on vacation only in a few cases:
- dismissal is the desire of the employee himself;
- a dismissal agreement has been written, that is, mutual agreement to terminate the relationship;
- the organization is liquidated.
Vacation may not only be annual. There are types of leave such as nursing or maternity leave. All these cases imply a vacation, which is prescribed by law.
Is it possible to resign during vacation at your own request without working off - yes, if the duration of the vacation exceeds two weeks, that is, at least two weeks must pass from the moment the document is written and registered until the end of the vacation. The main thing is that the moment of working off is not provided for in the employment contract. In addition to these cases, there are two points that are prescribed in labor legislation. Quit with probationary period it is possible in three days instead of two weeks, and from a leadership position in a month. Thus, dismissal should take place taking into account this period if there is no desire to work off. It is quite possible to avoid even this working period. All cases are prescribed by the Labor Code.
How to quit
You can write a letter of resignation while on vacation, or submit an application for leave, that is, a person, after taking a full vacation, leaves his place of work. Dismissal features include:
- mandatory notification to management for the period provided by law before dismissal;
- if the vacation is not fully completed at the time of dismissal, then all days that have not been paid are paid;
- if a person resigns with full vacation pay, then no compensation is paid;
- independent dismissal of an employee by management while he is on any type of leave is impossible;
- if management dismisses an employee in absentia while he was on vacation of any nature, then the dismissed person may apply to the court with a statement of violation of his rights. Moreover, in addition to compensation and reinstatement in his position, he is entitled to a sum of money for the entire period while he was unemployed due to the fault of the manager;
- in cases of liquidation of an organization as an enterprise and dismissal of employees, they must be notified two months before this procedure, otherwise a compensation payment can be demanded;
- on vacation, only the submission of an application is required, and the employee is not recalled from vacation;
- Indicating the reason for dismissal in case of one’s own desire is not mandatory. The reason is indicated only if it is necessary to remove the processing. However, this reason may be required to be confirmed with evidence or documents.
The application is sent to the HR department, which registers it. Based on the application, a dismissal order is drawn up. If the employee is not present and it is not possible to familiarize him with the order, then an entry is made in the order that the employee did not sign for one reason or another. After the next vacation, the employee receives all documents in hand.
Features of dismissal while on vacation
When retiring from vacation, there are a few things you need to know:
- The usual dismissal period is two weeks. An employee has the opportunity to come back from vacation and take sick leave for the remaining days. It will be important to have a reason for this;
- pay the employee off on the day on which he is fired. This calculation includes wages, various benefits and compensation;
- if upon dismissal an employee was unable to receive a full payment, then he can receive it at any other time convenient for him. In this case, the delay in calculation according to the law may be equal to one day, but no more;
- if an employee leaves of his own free will and is granted leave, then he can receive all the necessary payment on the day that is the last day before the leave;
- on the last day, which is the date of dismissal, work book must be filled out and all entries must be made in it, including dismissal. This is due to the fact that along with the settlement, all of his documents are issued to the former employee.
If necessary, an employee who is on vacation may not even come to work in person. It is required to send the resignation letter by special mail, and it is necessary to use a return receipt, as this will help to avoid misunderstandings. It must be remembered that dismissal is possible for any type of leave, and all the rules are the same for each case.
Knowledge of the necessary nuances
Very often, employees make mistakes when leaving. In order to avoid misunderstandings, you need to know several nuances that will allow you to preserve your rights:
- if the application is sent by mail, then it is better to send it by mail to both the actual and legal address. This is especially useful if the addresses are not similar;
- when sending registered letter, notifications are required;
- According to labor law, the boss’s signature on the application is not fundamental. The main thing is the date of receipt of the application, and it is stamped on a copy of the document that the employee must have;
- after the date of receipt of the application written by the employee, the next day is already included in the two-week work period;
- the entire documentation package must be transferred to the employee no later than on the day of dismissal. This package should contain not only a work record, but also, if necessary, insurance contributions and a medical record;
- if the vacation does not fully cover two weeks of work, then the labor code provides for several cases that allow you not to work. For example, if an employee decides to retire or go to study. Also early dismissal possible if there are facts of violation by the organization of the Labor Code. Labor inspectorates and supervisory authorities can help you quit.
- You can request early dismissal from management due to relocation or serious illness of relatives. This formal request will allow you to prove your case in court if necessary.
In order to quit, you just need to be guided by the labor code and the contract.
If all the rules were followed during dismissal, then the manager does not have the right to keep the employee at work.
What to do if management infringes on the rights of an employee - go to court. With its help, you can achieve both dismissal and moral compensation.
The dismissal procedure has always raised a lot of questions, despite well-developed legislative norms labor law. The fact is that dismissal is always associated with specific situation, with emotional reactions (not always worthy), with different interpretations the law of two opposing parties: the employee and the employer.
Getting fired while on vacation is no exception. And although, according to the law, it does not matter whether you are on vacation or on a business trip, every employee has the right to leave work by notifying the employer 2 weeks in advance, however, the dismissal procedure is associated with a number of nuances.
Situation 1. Dismissal during unfulfilled vacation. Roughly speaking, every 2.5 months of work gives the right to 1 week of vacation (although the period depends on the length of the vacation, for example, teaching staff it is not 28 days, but 42). If an employee went on vacation before the right to it became available (took it “in advance”), then he must work this time or return money to the organization for unworked hours (spent on vacation). The bosses may react to your dismissal during vacation inadequately: they simply will not accept it and will not issue it; they may require you to rewrite the application, putting in different dates, motivating this by the fact that the employee is obliged to work.
What to do in this case? Do not rewrite the application, insist that they make a settlement with you, deduct unworked hours from your vacation pay if you have not received them yet. If you received it, you can return it against receipt. At the same time, always remember that the employer does not have the right to keep you, no matter what.
Situation 2. Dismissal during vacation can become a problem if the director is also on vacation and did not leave in his place a person with the right to sign (deputy, other responsible person), and if there is no opportunity to contact a senior manager (for example, the founder, if you employee of LLC or OJSC).
What to do? Use all possible methods to notify the employer: at least by telephone. In this case, the application can be sent by mail so that it arrives faster and the post office marks the receipt (it is not your fault that the employer did not leave a deputy). If the organization has a person who registers incoming letters (even better if you can do this yourself), he must sign for receipt of your application.
Situation 3. While on vacation and making an unexpected decision to quit, you may leave unfinished matters related to your responsibilities. If you are an accountant and have to submit reports, or you have to take inventory, such cases make it difficult to quit while on vacation.
What to do? You will have to go to work during vacation and finish unfinished business; for this you need a written order from the director to call you back from vacation due to “production” needs. This option is better than suffering dismissal.
Situation 4. You quit due to a transfer to another job.
To do this, you should write a letter of resignation in connection with a transfer to work in […] (specify the organization). In it, indicate the last day of vacation as the date of dismissal. But by agreement with the employer, you can quit on the same day (for example, in the middle of a vacation) and receive compensation for unused vacation.
The manager may require you to work for 2 weeks upon returning from vacation. This requirement has no legal basis. The word “working out” is not in the Labor Code of the Russian Federation. No employee is required to work, he is only required to give 2 weeks notice. In this case, it does not matter at all whether the dismissal occurs during vacation or during sick leave (on a business trip, while studying - it does not matter). Your absence from work for a valid reason does not oblige you to work it. You don’t even have to hand over business to a new employee (unless you hold a leadership position, are financially responsible person or accountant).
These cases are the most common, but can be complicated by a number of other circumstances. Always try to reach an agreement with your employer. Notoriety and legal proceedings none of you need it. If it doesn’t work out, follow the law - voluntary dismissal during vacation is provided for in Labor Code, in articles 77, 80.
Did your employee decide to quit while on vacation? Then you need to properly prepare the documents and complete all calculations with him. Our colleagues from the magazine “Salary” talk about how to do this.
The Labor Code prohibits dismissing employees while they are on vacation if the initiator of termination of the employment contract is the employer (Part 6 of Article 81 of the Labor Code of the Russian Federation). An exception is the liquidation of an organization or termination of activities by an individual entrepreneur.
If the employee himself expressed a desire to resign during vacation, then labor legislation does not establish any restrictions. In this case, it is important that the employee adheres to the deadlines for filing a resignation letter, and the employer adheres to the procedure for conducting the dismissal procedure.
Notice period for dismissal
The employee has the right to terminate by notifying the employer about this in writing no later than two weeks. This procedure is established in Part 1 of Article 80 of the Labor Code of the Russian Federation. This time is necessary for the employer to find a new employee for the opening vacancy.
Often in practice the concept of “warn” is replaced by “work”. Although the very concept of “work before dismissal” does not exist in the Labor Code. We are talking about the deadline for filing a resignation letter - no later than two weeks.
An exception to the general rule is cases when further continuation of work is impossible and the employee must resign on a certain day. This could be admission to educational institution, retirement and other cases when the employer is obliged to terminate employment contract within the period specified in the employee’s application (Part 3 of Article 80 of the Labor Code of the Russian Federation).
If an employee decides to leave the company at an earlier date without good reason, then this is possible only by agreement with the employer.
