Dismissal on weekends and holidays: rules and features

Dismissal on a day off at the employee's own request

Sometimes there are situations that baffle personnel officers. For example: if the last working day falls on a weekend, how to fire?

First, you need to figure out whose day off you mean - the employee or, say, the HR department? Such circumstances may arise during a shift work schedule.

So, is it possible to fire an employee on his day off? Of course you can. In Art. 84.1 of the Labor Code of the Russian Federation states that termination of an employment contract is formalized either on the last working day or during the period when the quitter retained his place of work. On a day off during a shift schedule, the employee has an employment relationship with the organization, so fire him without any problems.

How to fire someone if, for example, Saturday is the last working day for an employee, and the HR department is on vacation? It is impossible to delay the issuance of documents, which means that an employee of the HR and accounting department will have to go to work on a non-working day (and the employer will have to pay double for such an exit or provide another day of rest).

Practical examples

Example 1 . Employee P. wrote a letter of resignation without indicating the date of termination of relations with the employer. The dismissal date fell on 05.05 - a day off. The first working day is 06.05. She agreed to the registration on the 6th, since she only needed to go to her new place of work on May 20.

Example 2 . Employee P. wrote a statement with the date of dismissal after two weeks of work on 03.05. On May 6, he already needed to go to a new place of employment, so he agreed to receive a paycheck and work book on the last working day before vacation - April 30.

Example 3 . All employees of R LLC received notice of the liquidation of the enterprise. The two-month period expired on April 18, which is Saturday. At the general meeting, employees were offered to complete documentation on the 17th, but indicating the date of dismissal “April 19”. Everyone agreed, since many had already found a new place of work.

Example 4 . Employee N. repeatedly violated labor discipline by skipping work. In the period from 04/06 to 04/08, his immediate superior submitted 3 memos to management about N.’s absence from the workplace without good reason. On April 10, he was able to give written explanations, and on April 11 (this is Saturday) he was already dismissed “under the article.”

Example 5 . A fixed-term employment contract was concluded with employee D. for a period of 3 months, it expires on 05/09. The employer warned the employee about this in compliance with all deadlines, and suggested that she complete the documents on 05/08 – the last working day before the weekend. She agreed.

Example 6 . Employee Zh. decided to go on vacation with subsequent dismissal. He wrote a corresponding statement, the last day of vacation fell on Saturday. But since all personnel procedures must be completed before going on vacation, he received the work book and full pay 3 calendar days before going on vacation. During his legal leave, he can immediately take a new job. The law does not prohibit this.

Example 7 . Employee V. works on a shift schedule. She decided to quit and wrote a statement 2 weeks in advance. Its deadline expires on 10.05 - Sunday. The bosses offered to compromise and complete the documents on the last general working day before the holidays. But for V. it was a legal day off, so she refused. The management had to call a personnel officer and an accountant to the workplace on May 10, paying them double the rate for that day.

Termination of contract with employees with privileges

The Labor Code of the Russian Federation describes situations when the employer is obliged to formalize dismissal on the day the application is submitted. We are talking about situations where an employee may not give notice of his intention to terminate the employment agreement, for example, when retiring or being called up for service.

Based on Art. 14 of the Labor Code of the Russian Federation, if the date specified in the employee’s application is a day off or an official holiday, then the employer has the right to complete all paperwork on the next working day. However, there are situations when there is no time to wait, for example, a conscript needs to arrive at the appointed place on Monday, but he works until Saturday inclusive. In this case, by special order of the manager, all persons responsible for issuing the work book and the final payment are involved in performing duties during non-working hours.

In what cases can an employee be fired if he is absent from the workplace?

The day of dismissal is considered a working day, but not always. Situations may arise when an employee does not work for various reasons, but he must be dismissed regardless of his presence in the workplace. Worker:

• is absent from the workplace because he is a participant in collective bargaining;
• in accordance with a medical report, cannot continue to perform work duties;
• is on vacation, previously wrote a statement of his own free will, and at the end of the work period the vacation has not yet ended;
• at the time of dismissal due to liquidation of the organization or staff reduction, is on parental leave;
• participates in a strike on the day of dismissal;
• is a member of the election commission.

See also “Dismissal by agreement of the parties on sick leave”.

Dismissal on a holiday (fixed-term employment contract)

If the day of dismissal falls on a holiday, and the employee needs to be fired due to the expiration of a fixed-term employment contract, then the order can be issued either directly on a non-working day or holiday, or on the last working day preceding the holiday.

Please note that if you dismiss on a day off, you must make a full settlement with the employee at the same time. If the contract was terminated, for example, on Saturday, and the employee receives wages for days worked and other required payments only on Tuesday, then the employer must pay for the delay in wages. Based on Art. 236 of the Labor Code of the Russian Federation, compensation for each day of delay, starting from the next, is 1/150 of the Central Bank key rate on the unpaid amount.

Order date

According to current legislation, namely Article 84 of the Labor Code, it is impossible to dismiss an employee on a day off. The date of termination of employment should be postponed to the next working day (next). If the situation reaches a dead end and the employee decides to quit on a day off, you can still adjust the date due to working hours, making it, for example, not 14, but 12 days. This right is enshrined in Article 14 of the Labor Code.

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Answers to frequently asked questions (to summarize)

If the dismissal date falls on a weekend, what day should you dismiss?

To accurately answer the question, it is important to understand whether the day of termination of the employment contract was a day off for the employee or not. If he worked on that day, then he should be fired on that day. If you didn’t work - according to Art. 14 of the Labor Code of the Russian Federation, he will need to be fired on the next working day, for example on Monday. However, this may disrupt the employee's plans. Perhaps on Monday he will have to go to work in another organization. Then both the employee himself and the personnel officer and accountant will have to go to work (we wrote about this above).

If the dismissal date falls on a weekend, when should the order be made?

The order, of course, can be prepared in advance, as soon as an application has been received from the employee and management has decided not to object to the termination of the contract. As for the date of the order, there is a controversial point. Experts suggest, by agreement with the employee, date the order on the last working day before the date of dismissal (and issue all documents on the same day). In the work book, the date will be a day off, and the date of the order will be the day before. However, there is a danger in this method: the employee may change his mind on the last (day off) day and complain to the Labor Inspectorate that he was deprived of this right. To avoid this, it is better to document the agreement with the employee to complete all formalities on the eve of the day of dismissal (this could be a personal statement from the employee with a request to issue documents and make payments on the agreed working day).

If the day of dismissal falls on a weekend, when should the amounts due upon termination of the contract be paid?

As in the situation described above, it is recommended that all payments be made on the eve of the employee’s last day of work - on the last working day.

Normative base

To understand where work on a day off can come from, you need to refer to the procedure for calculating wages and find out how to make a dismissal on a day off and when to pay the salary.
The legislator allows enterprises to choose a payment system, for example, if production conditions require assigning shifts or working on weekends or holidays. The payment for such an organization of labor is quite equivalent - an employee who has written an application for termination of employment relations can count on the final payment under Article 140 on a non-working day.

The Labor Code states that the last day of work is the day of dismissal. On this date, the citizen still formally performs his duties and fills out a bypass sheet. There is no clear reference in the law as to which day may be selected for final settlement. Therefore, the opinion that it is impossible to fire someone on a day off is hasty and even erroneous.

Features of working off upon dismissal

Upon dismissal, an employee leaving the company is legally required to work a certain number of days. The duration of work can vary from three to fourteen days; some categories of citizens have the right to leave the company in one day without working at all. Those who will have to interact with the employer for some time after the application are very interested in the following questions:

• what day does the work start?
• can working hours include weekends and holidays;
• Is it possible to quit without working in principle;
• how to correctly determine the last working day.

We will answer each of the questions in turn.

The days of service are counted from the day following the submission (registration) of the resignation letter. The law does not say that the employee must work during the working days; thus, working days may include days off and holidays, days of paid or unpaid vacation and sick leave days. Certain categories of citizens have the right to resign without service, namely:

• persons of retirement age;
• women expecting a child;
• mothers and other persons who are adoptive parents of one or more children under the age of 14 years.

In addition, citizens who do not belong to the above categories also have the legal right to leave the company at any day. They can do this when specific life circumstances occur:

• admission to study at a higher education institution or other educational institution for a bachelor's or master's degree in a full-time education department;
• the arrival of the appropriate age (55 years for women and 60 years for men) and the employee’s retirement;
• violation by an employee of the rules of the Labor Code or the provisions of local labor or collective contracts;
• moving to another area to a new place of residence for the purpose of employment or for medical reasons;
• emigration of a spouse for employment abroad;
• obligations to provide care for a family member in a state of incapacity, a child in a state of disability, or a child whose age does not exceed 14 years.

If the employee does not belong to any of the listed categories, but he has a very strong desire to part with the company as soon as possible, you can try to negotiate with management directly. In some cases, the parties find the possibility of a compromise, and the desire to leave the company without working at all turns out to be feasible.

The author’s personal practice shows how you can use to your advantage the provisions of the Labor Code, according to which the working period includes weekends and holidays. The author of these lines once had to submit a letter of resignation from the company on the eve of the long New Year and Christmas holidays. The application was submitted on December 28, due to which almost the entire period of fourteen-day work fell on weekends and holidays. This simple method can help reduce the amount of work required upon dismissal, because the law does not require a citizen to work directly on the days of service. In the case where the work is only three days, by selecting the date for submitting the application in a certain way (for example, before the May holidays), you can ensure that all the work will take place on weekends, after which you can safely come to the company for payment and payment due documents. Of course, the employer may not like this very much, but in such a situation everyone is free to set priorities on their own.

Determining the last working day is very simple. It is enough to count the days of work, starting from the day following the day of filing the application. The last day of work will be the last working day in the company, as well as the day of dismissal.

In most cases, employees of the enterprise’s personnel department are able to answer any questions regarding the dismissal procedure. They are interested in ensuring that the dismissal is completed correctly, so they readily provide application templates and advise on the intricacies of the process.

Video: is it necessary to work for two weeks when leaving the company?

Can they be fired while on sick leave, on vacation or during a business trip?

It is impossible to dismiss an employee during a period of temporary disability or regular vacation only on the initiative of the employer. In all other cases, illness or vacation is not an obstacle to terminating an employment contract. It is also quite acceptable if the termination of the contract occurs on the last day of the business trip. It is acceptable, but not advisable, since the employee will not be able to receive the work book on time, and you will have to send him a corresponding notification by mail. Yes, and with the calculation there will be questions.

Arbitrage practice

N. filed a lawsuit for reinstatement at work and payment of wages for the period of forced absence.

At the court hearing, it was established that N. submitted a letter of resignation of his own free will. Three days before the date of dismissal, N. went on sick leave and was ill for two weeks. The employer terminated the employment contract with the employee on the day specified in his application. However, N. believes that he was fired illegally, because at that time he was on sick leave and changed his mind about leaving work.

The court refused to satisfy N.'s claims, pointing out that the prohibition on terminating an employment contract during a period of temporary incapacity for work by an employee does not apply to cases of voluntary dismissal.

Please rewrite the application

The employer can try to negotiate with the employee. For example, ask to rewrite the application and indicate a different, “working” date of dismissal. If the employee refuses, the employer does not have the right to unilaterally change the termination date of the employment contract. Unjustified dismissal of an employee on a different date is a violation of his rights, in particular the right to withdraw his resignation letter (Part 4 of Article 80 of the Labor Code of the Russian Federation).

Note. Payments on the day of dismissal

On the day of dismissal, the employer is obliged to make a full settlement with the employee and pay all amounts due to him, namely:

- wages for the time actually worked in the month of dismissal;

— compensation for all unused vacations;

— severance pay in cases specified by law.

The amounts of compensation for unused vacation and severance pay are calculated based on average earnings in accordance with:

- from Art. 139 Labor Code;

— with the Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922.

The Labor Code gives the right to an employee who has written a letter of resignation of his own free will, before the expiration of the notice period for dismissal, to withdraw his application at any time, that is, before 24 hours of the last day of the period (Part 4 of Article 80 of the Labor Code of the Russian Federation, Ruling of the Supreme Court of the Russian Federation dated 08/10/2012 N 78-KG12-10).

The employer has the right to refuse an employee to withdraw his resignation letter in the following cases (Part 4 of Article 80 and Part 4 of Article 127 of the Labor Code of the Russian Federation):

- an employee who is on vacation with subsequent dismissal did not withdraw his application before the start of the vacation;

- an employee who is going on vacation with subsequent dismissal has withdrawn his application, but another employee has already been invited to take his place by way of transfer;

- another employee is invited in writing to replace the employee, who, in accordance with labor legislation and other federal laws, cannot be refused to conclude an employment contract.

Payment and work record

According to Art. 84.1 of the Labor Code of the Russian Federation, on the day of dismissal, the employee must be given:

• settlement amounts;
• work book.

In addition, upon his application, documents related to work are issued: a copy of the dismissal order, a certificate of earnings for 2 years, a 2-NDFL certificate, information about contributions to the pension fund.

As a rule, the following are included in the calculation of dismissal pay:

• salary in proportion to the time worked per month;
• bonus (if mentioned in the collective agreement, as a rule, also in proportion to the period worked per month);
• severance pay (in case of layoffs and liquidation - mandatory, in other cases - according to the Labor Law);
• compensation for vacation if vacation was not used before dismissal.

The work book is handed over in person, with a confirming signature upon receipt. If an employee is absent on the day of dismissal or refuses to receive a document, it is necessary to send him a corresponding notice. It is best to obtain the employee’s written consent in advance to send the work book by mail. In case of non-receipt in person, such actions release the administration from liability for the delay of the document.

If the document remains unreceived, it can be issued within 3 days to the employee upon his application.

Results and conclusions

1. The day of dismissal is generally considered a working day, with the exception of situations in which the employee retains his place, but is absent from service. This day must be worked and paid. The day of dismissal is not considered a working day if the employee wrote a statement in advance with the intention of resigning and fell ill or went on vacation. The day of dismissal is not considered a working day if the employee missed it and was fired for violation of discipline.
2. If a citizen believes that his rights have been violated, he can contact the employer himself, then the labor inspectorate, the prosecutor’s office and the court for justice.
3. The work book is issued in person on the day of dismissal or sent by mail to the employee who did not receive it. An unreceived document is issued to a citizen upon written application within three days.

Paperwork

Responsibility for registering the dismissal lies with the HR employee and the accountant. These specialists should know about the new amendments made to the Labor Code of the Russian Federation and study other regulatory and legal acts related to labor activities. If an error is found in the documents during the inspection, the organization will be fined.

Expert commentary

Kolesnikova Anna

Lawyer

The legislation establishes a certain procedure for processing documents. It does not depend on what day the dismissal falls on. An order to terminate a contract is drawn up according to a standard template.

It contains the following information:

• Information about the dismissed specialist (full name, passport details, position);
• Grounds for termination of employment relations with an employee (link to article of the Labor Code).

At the end of the form, the manager puts the date of dismissal and personal signature. After this, the HR employee prepares documents for dismissal, and the accountant calculates payments.

Order to terminate an employment contract (sample)

On the last day of performing official duties, the citizen is given:

• A copy of the order to terminate the contract;
• Pay slip;
• Labor book;
• Salary certificate for 2 years of activity;
• Data on the transfer of contributions to the Pension Fund and the Social Insurance Fund.

The employee has the right to request other documents that he will need for further employment. For example:

• Diploma of completion of courses;
• Sanitary record;
• Thanksgiving letters.