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An employee can resign at his own request. For an employer, the sudden dismissal of an employee is associated with many inconveniences. Therefore, the law provides for a two-week working period. But there is always a possibility that the employee will not want to work the required 2 weeks. The law provides for such a possibility, and today we will talk about the nuances of dismissing an employee without working off.
How long does it take to notify the employer of dismissal?
The concept of compulsory service is not provided for in the law. The employee must only notify the employer in advance that he intends to resign. The deadlines for different categories of employees vary. An ordinary employee must report 2 weeks in advance, and the head of the organization 1 month in advance. Workers on a probationary period, fixed-term contract or seasonal work submit an application 3 days in advance. The working period starts from the next day.
At the same time, having announced their dismissal, many employees stop showing up at work, taking sick leave or vacation. Such behavior does not serve as a basis for extending the period.
Types of payments and compensations
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Labor legislation is complex: it is full of reservations and separate articles for fixed-term contracts, part-time work, seasonal work and activities in the Far North. Therefore, below we have focused only on general cases - they are relevant to the majority of Russians working under an employment contract in the 5/2 schedule.
Remaining salary
This payment is the main one. The employee is required to return the entire amount that he earned before dismissal. In addition to salary, this includes bonuses and additional payments provided for in the employment contract. The specific terms of such payments are determined by the company, but they are required to be paid to the employee strictly on the day of dismissal.
Vacation compensation
By law, every Russian is entitled to a vacation of 28 calendar days, each of which is paid. It happens that before dismissal, an employee does not have time to arrange and spend vacation. In this case, the company pays compensation - strictly for the number of vacation days that were not used.
Sick leave after dismissal
If, within a month after dismissal, an employee took sick leave, but did not find a job in another place, the former employer is obliged to compensate him for sick days. Few people know about this payment, so most often Russians receive treatment using their savings. But the Labor Code stipulates that even the unemployed can receive sick leave if the dismissal occurred recently.
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There is a nuance regarding the size of payments. If illness occurs at least a day after dismissal, sick leave will be paid in the amount of 60% of the average salary (regardless of the length of service). If sick leave is opened on the day before dismissal, 100% is paid.
Vacation followed by dismissal
By the time an employee ends their career with your organization, they may have unused vacation days. Before resigning, he has the right to give them time off. To do this, he submits an application for leave with subsequent dismissal. The day of dismissal is considered the last day of vacation. But you can withdraw the application only before the start of your vacation, then he will lose this opportunity.
It is more convenient for the employer to receive such a statement 2 weeks before the vacation, but the employee is not obliged to warn. The employer, for its part, also has no obligation to provide the employee with paid leave. It can be replaced with monetary compensation and the employee can be forced to work for the required period - except in the case where the vacation before dismissal coincides with the vacation schedule.
Having received the employee’s application, issue an order to grant leave followed by dismissal. The person resigning must sign the order. If an employee falls ill while on vacation, there is no need to extend it, but sick leave will have to be paid. All calculations must be carried out before he goes on vacation, that is, on the last day. Then the employment relationship is considered terminated.
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In what cases is dismissal without work service legal under the Labor Code of the Russian Federation?
First, let's look at what the Labor Code of the Russian Federation says about this. It directly provides for several cases (Article 80 of the Labor Code of the Russian Federation) when it is possible to quit without working off.
Dismissal by agreement of the parties
You have been looking for a job for a very long time and finally another employer offered you the coveted position. But the new employer urgently needs an employee and he offers you to leave on Monday, and the calendar says Wednesday. What to do in this situation? Approach your current employer and explain the situation. Perhaps he will agree to let you go without detention. According to paragraph 2 of Article 80 of the Labor Code of the Russian Federation, with the consent of both parties, it is possible to terminate the employment relationship earlier (before the expiration of the notice of dismissal).
Inability to continue working
Paragraph 3 of Art. 80 of the Labor Code of the Russian Federation allows you to quit without working off if you do not have the opportunity to continue working. The reasons may vary. The Labor Code of the Russian Federation contains an open list of them, and only 2 are indicated as an example: admission to an educational institution and retirement upon reaching retirement age. Another reason may be the spouse’s relocation for work reasons (resolution of the plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
Find out from ConsultantPlus whether dismissal due to relocation is a reason for dismissal without service. To get everything done correctly, get trial access to the system and go to the Ready Solution.
About the nuances of registering the dismissal of an employee in connection with his retirement, read the article “Dismissal of an employee in connection with retirement (nuances)” .
Violation of labor legislation by the employer
This clause contains the same paragraph 3 of Article 80 of the Labor Code of the Russian Federation; if the employer violates the norms of labor legislation (including those provided for by internal regulations), then you have the right to leave without 2 weeks of work.
Separately, the legislation considers the case when an employer delays the payment of wages to its employees for more than 15 days (Article 142 of the Labor Code of the Russian Federation). In such a situation, the Labor Code of the Russian Federation gives the employee the right to suspend the performance of his official duties. And along with the application for suspension of work, submit a letter of resignation. If the suspension of work lasts more than 14 calendar days, then there is no need to work off, since the days of suspended work are considered to have actually been worked.
You can also avoid working time if you go on vacation or sick leave before leaving. If the vacation lasts more than 2 weeks, then the date of dismissal will be the last day of vacation. And if an employee is sick longer than this period, then he must be fired on the 14th day.
The article “How to correctly arrange leave with subsequent dismissal ” will help you understand the peculiarities of registering leave with subsequent dismissal .
In addition to those listed above, there are several other opportunities to avoid two weeks of work upon dismissal. They are not directly provided for by law, but have become practically normative due to the frequency of their use in practice. For example, care for health reasons, when changing place of residence, due to the need to care for a child or a sick relative. All of them are applicable only with the consent of the employer.
IMPORTANT! In the resignation letter, the employee must clearly state his request to be dismissed without work, indicate the reason and the specific date of departure.
What to do if an employee changes his mind about leaving
The period of service is needed not only by the employer, but also by the employee himself, in order to think carefully about everything. Within two weeks, he can change his mind and not leave his workplace. But everything becomes more complicated if a new candidate has already been selected to replace him. In this case, the obligation to hire a new candidate should not arise voluntarily, but by force of law. For example, when transferring from another place of work, if the candidate has already quit there.
If the order is not signed, there are no problems - the employee simply leaves a request to withdraw the application. What if the order is signed, a settlement note is drawn up, an entry is made in the work book and wages and compensation are paid? Then you will have to spend a lot of effort: compensation must be returned, the entry in the book must be canceled, and the order must be cancelled.
Should an employee work
You should receive a warning from the employee that he wants to leave soon. But there are circumstances that give him the opportunity to independently choose the day of dismissal and not work for 2 weeks.
- Reaching retirement age. If an employee works while a pensioner and wants to quit, he is also not required to work.
- Enrollment in a full-time department of an educational institution.
- Transfer of the husband (wife) to a new workplace, and consequently, moving to another city or country.
- Change of residence to another city or country.
- Caring for a sick family member or a child under 14 years of age;
- Health problems.
- When authorized bodies (prosecutor's office, labor inspectorate) identify delays in wages, refusals to grant vacations and other violations of labor law. If the court finds a violation of labor laws, and you refused to dismiss the employee within the specified period, you will have to pay a fine.
- In addition, a pregnant woman or a conscript may leave the workplace without complying with the warning deadline. Under these circumstances, the employee must provide evidence. For example, an order to enroll a student in a university.
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Conditions that give the opportunity to quit without working
In part 3 of Art. 80 of the Labor Code of the Russian Federation mentions circumstances when you can quit at your own request without working for any period. These include:
- cases when further continuation of work is impossible for objective reasons ;
- an employee leaves due to violations of the law by the employer, officially .
A limited list of reasons for termination of an employment contract without prior warning is not established . In practice, circumstances that make further cooperation with an employer impossible
- admission to an educational institution;
- retirement;
- sending one of the spouses to the place of service or to work outside the Russian Federation;
- the need to care for a minor child (for example, due to illness).
This list is open and can be supplemented by the occurrence of other valid life circumstances that directly prevent the employee from continuing to work in the company.
IMPORTANT!
If an employee wishes to resign early and there is an objective reason for this that makes continued work impossible, it must be referred to in the application. You must attach copies of documents confirming the fact pointed out by the employee.
If the company does not agree to dismiss without work, even despite the presence of appropriate circumstances, the employee has the right to apply to the court or supervisory authorities to resolve the conflict (Article 382 and Article 391 of the Labor Code of the Russian Federation).
Is it possible to fire an employee without working for two weeks?
Above, we examined the reasons that oblige an employer to fire an employee in one day. But the director may consider other reasons valid or simply meet the employee halfway and immediately sign the application.
An employer can dismiss an employee on the day the application is submitted, without working off. In this case, the basis for dismissal will change - dismissal by agreement of the parties. Dismissal by agreement of the parties differs in that, in addition to the order, a dismissal agreement is signed with the employee.
- If the dismissal is formalized simply with a “Dismiss” visa on the application, write in the work book - the employment contract was terminated at the initiative of the employee, clause 3. Art. 77 Labor Code of the Russian Federation.
- If an agreement is signed with the employee and an order is issued, the employment contract is terminated by agreement of the parties, clause 1 of Art. 77 Labor Code of the Russian Federation.
In judicial practice, there are cases when employers force an employee to sign a statement on his own, while putting down false dates. It is unacceptable! Only an employee can initiate an application at his own request. Such requests from superiors are illegal and can easily be challenged in court. The least that a violator faces is payment to the employee of the average salary for the entire period of forced absence.
Common Questions
Are holidays and non-working days included in the working period for voluntary dismissal?
Yes, they do. According to Part 3 of Art. 14 of the Labor Code of the Russian Federation, the working period is calculated in calendar days. This means that it includes holidays, weekends and other non-working days.
Can a student resign of his own free will without work?
Maybe, subject to enrollment in an educational organization. In this case, the employer is obliged to dismiss the employee on the date specified in the application (Part 3 of Article 80 of the Labor Code of the Russian Federation).
If an employee studies and works successfully at the same time for quite a long time, and then suddenly asks to be fired without work, the need for work will depend on the management. We recommend that the employer assess whether the employee currently has an objective, valid reason why he cannot continue to work. For example, such a reason could be a change in the form of education from correspondence to full-time. In any case, there are fewer risks if the employer pays off the employee on the date he requires.
What to do if the employee gave notice of dismissal less than the period provided by law?
If the employee does not have valid reasons to quit without working, the employer has the right to insist on dismissal at a later date.
We also recommend asking the employee to rewrite the application, indicating the last day of the established notice period for dismissal. This will avoid the risk of such dismissal being declared illegal. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
Dismissal of an employee without working at his own request
To dismiss an employee on your own, you need to issue an order. The order is based on the submitted application and includes its details. As the basis for dismissal, indicate - clause 3, part 1, art. 77 Labor Code of the Russian Federation.
Submit your dismissal order no later than your last day of work. But keep in mind that the accounting department must prepare for the dismissal of an employee and make all the necessary payments and calculations. Therefore, it is better to issue an order in advance. Together with the order, a note-calculation is drawn up. Familiarize the resigning employee with the order; if it is impossible to obtain his signature, make an appropriate note. Before issuing it, make a note of dismissal in your work book indicating the article.
Even if the employee has not worked the required period, he retains all rights. On the last working day, it must be calculated, wages, vacation pay and compensation, if any, must be issued, and all documents must be submitted. The employee also retains the right to appeal to the prosecutor's office or to court if management violates his rights.
For all days of delay in payment, management must pay the average salary. The work book must also be returned on time, otherwise you will have to compensate for material damage for each day the book is retained, because its absence does not allow you to get a new job. The date of dismissal is entered in the book as a number when the employee receives it. If the employee did not come for the book and refused to receive it by mail, the employer has no responsibility.
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