Dismissal during vacation at your own request

Going on vacation and planning dismissal: action plan

Having decided to resign at his own request during vacation, the employee has the right to calculate and choose one of the schemes:

1. Writes an application for leave with subsequent dismissal (Article 127, Labor Code of the Russian Federation).

As a result, if the employee wrote it, then:

• having rested for the entire prescribed period, does not return to shift;
• receives a work book and full payment before the start of the rest period.

REFERENCE: Labor legislation states that a manager can reduce the time away from work to two weeks. This is exactly how long it should take from the moment the application is written. The balance of unused vacation pay is transformed into monetary compensation (Article 126 of the Labor Code of the Russian Federation).

2. Wants to quit while on vacation.

Methods for transferring documents while on vacation are not limited by law:

• if you wish, appear and submit yourself;
• sending by mail;
• delivery through a representative.

REFERENCE: the employer does not have the right to force the employee to return from vacation to work in connection with the received application (Article 125 of the Labor Code of the Russian Federation). He has the right to remain on vacation until its completion.

Important

Finding a new person and training him is not the problem of the leaving employee. The Labor Code obliges you to notify your employer about your departure half a month in advance. If the employee has done this, the employee has no other responsibilities.

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).

What you need to know about voluntary dismissal during vacation

Dismissal during the vacation period at one's own request, guided by the law, is the right of the employee himself. Before writing a letter of resignation while on vacation, you should know that:

1. Dismissal during the vacation period is your own decision. The employer does not have the right to independently terminate or dismiss an employee for any reason during this period.
2. It is better to take paid leave with subsequent dismissal for only 14 days. The rest will be included in compensation for unused vacation.
3. If there is not enough vacation time (less than two weeks), the rest can be replaced with sick leave, when there are grounds for this. Otherwise, the difference in days after the vacation will have to be worked out.
4. Receipt of the calculation and labor depends on the time of writing the application. If you choose to resign while on vacation, you can pick up your documents and your due salary on the last working day before your vacation or, at most, a day later, on the first day of your vacation. For paid annual leave followed by dismissal, payments and papers are handed over on the day of termination of the agreement.
5. A written statement (a sample is widely available on the Internet) can be withdrawn before issuing an order to terminate the employment agreement, but unless a new employee is hired.

How is the dismissal of an employee on vacation formalized?

The dismissal of an employee while he is on vacation for reasons permitted by law is formalized in the standard manner. As already noted, the permitted reasons for terminating a contract may include:

• The occurrence of certain events that do not depend on the wishes of both parties to the contract. The fact that such events actually occur must be documented. This may be a doctor’s conclusion about the impossibility of continuing to work, an employee’s conscription for military service in the army on the basis of a summons, or a sentencing of an employee in a criminal case, which naturally prevents the further performance of work duties;
• Dismissal that occurs as a result of the liquidation of an organization. In this case, there must be an appropriate decision to terminate the company’s activities, which is made personally by the owner or determined by a court decision;
• Termination of employment by mutual agreement of the parties. In this regard, an agreement is drawn up, which is signed by both parties - the employer and the employee. The date of separation must be recorded in the document. Also, during the discussions, participants have the right to agree on any additional conditions of dismissal that do not violate the law;
• The employee leaves at his own request. An employee who has decided to terminate cooperation provides a statement indicating the last working day. This document can be submitted personally to the employer, or, if the employee does not have such an opportunity or desire, the application can be sent by mail.

About voluntary dismissal: theoretically, an employee on vacation can communicate his desire to resign via email/social networks/messengers, however, based on the existing judicial practice in our country, it is better to follow the entire procedure and notify the employer of his intention officially. But, if an employee works remotely and such a work schedule is specified in the employment contract, then, according to judicial practice, a resignation letter can be sent by email.

If any of the above grounds occur, and the relevant documents for dismissal while on vacation are attached, then the employer must:

• Using a form in the T-8 form or in any form, issue an Order to terminate the contract (a sample order can be downloaded here);
• Make an entry in the labor record and register the relevant information in the register about the employee’s labor activity. You also need to report on the SZV-TD form within the prescribed period (doing this no later than the day following the date of dismissal). It is important not to forget to fill out the personal card of the person being dismissed;
• If an employee arrives at the office on the last day of work, all required documents must be handed over to him. On the last day, settlement of all stipulated payments must also be made. You can pay by bank transfer, or in cash, if the employee expresses his desire in this regard, supporting it with a corresponding statement. If the employee does not show up for work, then he should be sent a registered letter notifying him of the need to come to work to receive documents and a work book. In case of refusal of an employee, the employer sends the STD-R form to the dismissed person.

Note! The employer does not need to recall the employee with whom the dismissal is being formalized from vacation.

Options for dismissal during the vacation period without working off

How to quit without working? Wanting to leave the organization, an employee may, but is not required to complete the two-week period:

1. When the duration of the vacation he has taken is more than half a month. For those who work on probationary conditions, this period is reduced to 3 days (Article 71 of the Labor Code of the Russian Federation),
2. The management agrees to let him go immediately and unconditionally signs a statement with a date earlier than required by law.
3. The decision to leave was made during parental leave.

This is also important to know:
The procedure for dismissal due to staff or headcount reduction

When a resignation letter is submitted on the last day of vacation or closer to it, those who:

• became disabled and can no longer work;
• reached retirement age;
• entered the educational institution.

In these cases, the Labor Code allows an earlier date for termination of the employment agreement to be indicated in the application.

Fact

Calling out from vacation is a measure of interrupting vacation for strictly defined reasons. The employee's desire to quit is not one of these. Therefore, the employer does not have the right to recall the employee from leave to work.

Writing an application

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How to write a resignation letter during vacation? Labor legislation requires that the desire to quit be expressed on paper (Article 80 of the Labor Code of the Russian Federation). In this case, let's say:

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• printed text;
• handwritten text.

In both cases:

• the content of the document must clearly express the desire to terminate the employment relationship with the employer;
• The following attributes must be present: employee’s full name, number and signature.

The written form of the application allows you to use it as evidence of your intentions to resign if disputes arise with your manager. See the sample here.

What date to put and where to submit

Typically, the application is submitted 2 weeks before the expected date of dismissal. Exceptions are cases when:

1. The employer is not against the employee leaving earlier than this period.
2. There are reasons to reduce the wait for dismissal:

• moving long distances;
• retirement (both old age and disability pension);
• admission to the University;
• violation by the employer of the employment agreement (for example, failure to comply with labor protection rules and other regulatory documents, timely payment of earnings, etc.)

This is also important to know:
How to fire a part-time worker at the initiative of the employer

To comply with the rule about warning the employer by letter, it is not enough to simply draw up a statement. It still needs to be brought to the attention of the manager. To do this you can:

1. Take it personally to the office and register it by affixing the incoming registration number to the responsible employee. Personal attendance at work does not mean leaving after vacation. This is simply a way to convey the document to management.
2. Send by mail in the form of a registered letter. Ideally, with an inventory and notification of delivery of this letter. Sending by email is also legal, but difficult to prove.
3. Issue a one-time power of attorney for another person. This option is especially acceptable when the employee is physically unable to get to the company or post office to send a letter.

Important

By putting a date on the application and submitting it to the employer, the employee does not lose the opportunity to change his mind. The main thing is to have time to withdraw your application before hiring a new person for the position.

Is it possible to quit after vacation?

From the point of view of legislation, namely Article 80 of the Labor Code, the priority is the issue of notifying the employer of the intention to terminate the employment agreement. At this time, the employee may perform his job duties or be absent from the enterprise, for example, on vacation or sick leave.

If the reason for absence is unexcused - absenteeism, then the employer can change the article under which the citizen is dismissed. The majority of employees must notify management 14 days before leaving work. If you have a vacation during this time, you can leave the organization immediately after the vacation.

For your information

If the reason for exclusion from the list of employees at the initiative of a citizen is the inability to continue labor interaction in connection with, for example, entering a university or reaching retirement age, then the organization must fire the employee within the time frame specified by him.

It should be remembered that working time may be reduced or absent if management does not need the employee’s services. In this case, dismissal is possible within 24 hours from the date of filing the relevant application.

For your information

The procedure for dismissal of military personnel serving under a contract has significant differences from the usual ones, therefore, if you want to terminate your service, you should be guided by the Federal Law “On Military Duty,” in particular, Article 51.

Is it necessary to work out

As the code established, fourteen days must pass from the moment the application is delivered to the management until the moment of dismissal. An employee can spend these days in different ways:

1. Be at home if the vacation period is more than 2 weeks.
2. Use vacation days and complete those that were not enough for the specified period. The organization is prohibited from forcing employees to go on shifts during “vacations” to resolve current issues and transfer cases.

The expiration of the period prescribed by law gives the employee the right not to return to work.

Conclusion - working hours directly depend on the duration of the next vacation and the day the application is submitted.

Right to change your care decision

The 14-day period is also provided by the legislator so that the employee has the opportunity to change his mind and request the withdrawal of his application. However, a refund is possible when:

1. The application was written during the vacation period and the employer did not invite in writing employees who, by law, cannot be refused employment (for example, a pregnant woman).
2. The leave was taken with further dismissal and a new person was not hired to the vacated position by way of transfer. The peculiarity of the situation is that the application is withdrawn before the start of the vacation (Article 127 of the Labor Code of the Russian Federation).

Important

If after two weeks the employer has not terminated the contract and the employee continues to work, then the employment contract between them continues to be valid on the same terms. This does not contradict the law. It is forbidden to interrupt him

Taking leave followed by dismissal: the final stage

Paying an employee is an important, but not the last step in the multi-stage “vacation - dismissal” event. Without additionally filling out the paperwork, it will not be possible to say goodbye to the employee.

The first important and mandatory document issued to any resigning employee (in addition to the work book), even if he did not ask for it, is a certificate of earnings for the two calendar years preceding the dismissal .

IMPORTANT! A certificate of earnings is issued to the employee in the form approved. by order of the Ministry of Labor dated April 30, 2013 No. 182n (Clause 3, Part 2, Article 4.1 of the Law “On Compulsory Social Insurance” dated December 29, 2006, No. 255-FZ). The procedure for filling out such a certificate can be found here.

Other mandatory documents to be issued to employees upon termination of employment are (Clause 4, Article 11 of the Law “On Personalized Accounting” dated 04/01/1996 No. 27-FZ):

• an extract from SZV-M for the month in which the employee quits;
• SZV-EXPERIENCE for the person resigning (for the year of dismissal);
• Section 3 of the unified calculation of insurance premiums for the quarter in which the employee is dismissed.

Usually, contacts with the resigning employee do not end there - the employee can contact the company’s specialists with a request to provide additional certificates and copies of documents. At the same time, the issuance of papers cannot be carried out uncontrolled according to the “asked and received” scheme. Communication between a resigning or already resigned employee and a former employer is based on an algorithm (Article 84.1 of the Labor Code of the Russian Federation).

This rule applies to the employee’s desire to obtain certificates (Article 62 of the Labor Code of the Russian Federation):

• on accrued and paid insurance pension contributions;
• period of work in this company;
• income in form 2-NDFL (the procedure for issuing it is described here ).

In addition to the specified papers, the employee has the right to request the necessary information about his transfers in the course of his work in this company, copies of orders for hiring and dismissal - the employer has no right to refuse this request. The employee is not obliged to pay money for the copies received (Article 62 of the Labor Code of the Russian Federation, letter of Rostrud dated December 20, 2012 No. PG/9518-6-1).

How is the day of dismissal determined?

An employee may, if there is unused vacation, take it off with subsequent dismissal. The date of dismissal is considered the last day of rest, which will be recorded in the work book. This scheme is acceptable for those who have not yet found a new job. This will minimize the chances of interruption of work experience.

Fact

Such leave is not available to employees who have violated labor discipline.

If the completion of current activities needs to be completed faster, it is better to exercise the right to monetary compensation for unused vacation days. The date of dismissal in this case will be the last working day.

Vacation, dismissal, length of service

Workers who have the right to preferential pensions: doctors, teachers, workers in hazardous industries, etc., often ask the question: how is leave followed by dismissal included in the length of service?

The period of annual paid leave, regardless of whether the employee plans to quit, is included in the length of service. During this period, the employee retains his position, average earnings, and insurance premiums are paid from vacation amounts. There are no restrictions on leave followed by dismissal in the Labor Code of the Russian Federation.

But to the question about vacation experience, HR experts do not have a single answer. Proponents of the decision not to include such a period of rest in the length of service for calculating annual compulsory leave argue their position as follows: if the leave is followed by dismissal, a new person can be invited to the employee’s workplace, and the employment relationship with the person leaving actually ends on the last day of work.

Experts who defend the opposite point of view refer to Art. 121 of the Labor Code of the Russian Federation, which states that the length of service giving the right to annual paid leave also includes those periods when the employee did not actually work, but he retained his job, including the time of annual paid leave. There are no clarifications about leave with dismissal in labor legislation. This position is also supported by the fact that the date of dismissal in the work book will be the last day of vacation.

What decision will be made regarding your employee largely depends on the opinion of the territorial branch of the Pension Fund of Russia. Your task is to prepare the documents correctly so that in a controversial situation the department does not have questions for you.

When is the calculation made?

Is it possible to independently determine the day of payment and dismissal? You can calculate it if you know the rules for such payments:

1. When on leave with subsequent resignation, it is not equal to the day of dismissal. The first one falls on the last working day before vacation, and the day of dismissal falls on the last day of vacation.
2. If you quit while on vacation, the day of calculation and dismissal coincides: either two weeks after submitting the application or on the day the vacation ends (if the employer agrees).

Fact

Interrupting the vacation too early by leaving the organization (for example, the application is written on the 3rd day, but the vacation lasts 28 days) leads to the employee’s debt to the company.

Notice period for dismissal

The employee has the right to terminate the employment contract by notifying the employer in writing no later than two weeks in advance. 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 even 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 may be admission to an educational institution, retirement and other cases when the employer is obliged to terminate the 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 valid reasons, then this is possible only by agreement with the employer.

Note.
The employee has the right to notify the employer of termination of the employment contract earlier - within a period exceeding two weeks.

What documents are issued?

Termination of employment relations is accompanied by the issuance on the day of dismissal:

1. A work book with a record of dismissal (the work book is drawn up as follows: date, basis, order number, seal and signature of the person responsible).
2. Certificates of salary for the last two years.
3. Information on payments of pension contributions.
4. Certificates with tax decoding in form 2-NDFL.
5. Other documents requested in writing by the employee before leaving for receipt.

This is also important to know:
How to fire a part-time worker at the initiative of the employer

The severance of labor ties is formalized by order. The employee must read the text carefully before signing the document. The grounds for dismissal are transferred to the work book. The employment record should not contain any errors after the personnel officer has made entries. This should be checked specifically.

How to go on another vacation and quit immediately after it: Art. 127 Labor Code of the Russian Federation

Vacation followed by dismissal is a phrase used in labor legislation as a separate concept.
IMPORTANT! In accordance with Art. 127 of the Labor Code of the Russian Federation, an employee has the right to leave before dismissal (except for dismissal for guilty actions).

This double maneuver by the employee entails additional steps for the employer to formalize and implement it. Each component of the furlough-furlough scheme requires compliance with legal requirements.

For example, dismissal is a whole complex of events, the initial step of which is the employee writing a statement. It launches a mechanism for interaction between management, personnel officers, accountants and other specialists of the company. Each of the listed “cogs” of the internal company apparatus performs its own function, the result of which will be the dismissal of the employee, formalized in accordance with the law.

At the same time, the interests of both parties to the terminated employment contract should not be affected - the employee will receive the money due to him, and the employer will fulfill the functions assigned to him in complying with the dismissal procedure.

“Unified Form No. T-8 - form and sample of completion” will help you fill out an order in connection with the termination of an employment relationship .

No less important in terms of compliance with legally established procedures is the process of an employee going on leave.

This material will help you understand the specifics of issuing a “vacation” order. .

And combining these events into one requires an even more careful and scrupulous approach, since it contains a number of mandatory legal requirements.

ConsultantPlus experts explained whether it is possible to provide a worker with leave at his own expense followed by dismissal. Get free trial access to the system and move on to the Ready-made solution.

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Leaving the campaign during the rest period leaves an imprint on the registration of the work book.

When a person works, issuing him a document on the day of dismissal is not a problem. But it’s not so easy to “lure” a vacationer to work. Therefore, it is allowed to send a notice, which will acquit members of management if they are accused of late issuance of a document.

It is better to pick up the papers in person. This will protect against their loss.

If the vacation is taken in advance

The basic rule is that you can take vacation only six months after starting work. However, Article 122 of the Labor Code of the Russian Federation allows certain categories of persons to take leave earlier than this period:

• employees who are under 18 years of age;
• pregnant and postpartum women;
• adoptive parents of children not older than 3 months.

Such advance rest does not prevent you from writing a letter of resignation. The main difficulty is overpaid vacation pay.

They can be:

• return to the employer voluntarily;
• give by forced deduction from salary;
• pay according to a court decision, since the company has the right to initiate a process to return overpaid amounts. Especially when the salary was not enough to pay off advance vacation pay.

Important

The dismissed employee must refund the overpayment of vacation pay only upon the relevant request of the employer.

If you have taken study leave

In these cases, the employee performs all required actions:

• expresses in writing his desire to leave the campaign;
• submits the document to the organization for processing;
• waits the required two weeks, gets acquainted with the order and receives payment, including vacation pay;
• picks up the work book, which contains all the necessary entries and certificates required for the occasion.

Important

Such leaves are required to be given to part-time workers, people caring for children, and those who study and work. During this period, the organization does not have the right to dismiss an employee on its own.

If you have taken leave without pay

The specificity of this vacation is that the organization does not pay for the vacation. But this does not prevent you from resigning according to the same scheme as before. The only difference is in the calculation of the money allocated before leaving. After signing the order, the employee will only be able to receive compensation (for example, an assigned temporary disability benefit).

Important

The duration of such leave is established by agreement of the parties. The employee should take this into account when calculating days worked.

When is the employer liable?

All violations prescribed in labor legislation entail consequences for management. An employer is liable under the Code of Administrative Offenses if he:

1. Refused to sign an application for voluntary resignation during vacation.
2. Delays the deadline for dismissal, promises the next day after some event, etc.
3. Did not sign the order or used incorrect wording of the reasons for dismissal. Issuing an order requires the most precise wording.
4. Due to various situations, I did not calculate the resigning employee’s wages and compensation on time.
5. He did not make entries and did not issue a work book.

Important

An employer cannot force a person to work if the employee himself does not want it. There are many and different situations, but the will of the worker in this matter is the law.

We prepare documents

Vacation order. The basis for granting leave is an order drawn up according to the unified form N T-6 (T-6a) or a form independently developed by the employer (letter of Rostrud dated 02/14/2013 N PG/1487-6-1). A note-calculation on granting leave to an employee is also drawn up according to the unified form N T-60 or an independently developed form.

Note.
Forms N T-6 (T-6a) and T-60 were approved by Decree of the State Statistics Committee of Russia dated 01/05/2004 N 1.
Cancellation of the original order. If an employee is dismissed before the end of the vacation, the duration of this vacation changes, and the amount of vacation pay changes accordingly. The legislation does not directly indicate the need to cancel the original leave order and issue a new leave order of a different duration. However, given that the accountant needs documentary justification to recalculate vacation payments, it is better to issue the above orders and, on their basis, re-fill out the calculation note for granting vacation. It would also be useful to draw up an accompanying memo.

Example 2. Let's use the condition of example 1. The employer does not object to the dismissal of the employee on June 5, 2013. What actions should the employer take to dismiss V.I. Samsonov before the end of his vacation?

Solution. The employer must:

— cancel the initially issued vacation order and settlement note;

— issue a new order for leave of a different duration and draw up a settlement note;

- draw up an accompanying memo.

You can cancel the initial order to provide an employee with annual paid leave:

- issuing two orders. In the first order, drawn up in any form, the wording may be as follows: “Consider the order dated 05/08/2013 N 39 on granting annual paid leave to V.I. Samsonov invalid in connection with the issuance of the order dated 05/27/2013 N 47.” At the same time, issue another order establishing a new duration of annual paid leave for the employee (up to and including the day of dismissal) and resolving the issue of recalculating vacation pay;

- an order that establishes a new duration of annual leave. In this order, you can cancel a previously issued order to grant an employee leave (in connection with his dismissal) (clause 1 of the order), set a new date for annual paid leave (up to and including the day of dismissal) (clause 2 of the order), resolve the issue of canceling earlier executed note-calculation and recalculation of vacation pay (clause 3 of the order).

Service note. A sample memo is shown below.