How to properly arrange vacation followed by dismissal

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.

Benefits of the application

This form of application gives obvious preferences to the employee who has decided to resign. The main thing is the time that he gains to look for a new job without losing his seniority and without having to work the required two weeks. For the employer, there are fewer advantages in this situation, but they also exist - the law is followed, more time remains to find a new employee, and good relations with the former subordinate are maintained.

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Application - the starting point for registration

The set of measures to formalize the “vacation-dismissal” procedure begins with an application from the employee. The employee writes it in his own hand in a generally accepted form addressed to the head of the company, indicating his position and surname. There is no special form for such a statement, and there are no restrictions on its volume and content.

Since a double event is planned (vacation - dismissal), there can also be 2 applications. The first will contain a request for leave with a special clause regarding its duration and starting date. The second statement will contain a written desire to sever the employment relationship with the employer.

There is no restriction on the number of statements in the law, so it is possible that the employee will combine the texts of both statements into one document.

If an employee decides to leave immediately after the vacation due to him according to the approved vacation schedule, then a separate application for vacation does not need to be written, since the schedule is already the basis for receiving vacation.

Applications can be found on our website using the link below:

Example

Timofeev N.L., an auxiliary worker in the mechanical section, decided to quit, having previously taken his legally earned regular vacation. He considered fiddling with individual applications to be an unnecessary waste of time and effort, so he expressed his will in one phrase: “I ask you to allow me to go on vacation from April 16, 2021 for 28 calendar days, followed by dismissal of my own free will.”

We will tell you how to apply for leave followed by dismissal in the following sections.

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.

We respect rights and take into account restrictions

In order for the procedure for going on leave with subsequent dismissal to be carried out within the framework of labor legislation, the employer and employee must not forget about their rights, responsibilities and restrictions.

Example (continued)

Timofeev N.L., an auxiliary worker at the mechanical section, was refused his desire to go on vacation before his dismissal, and his attempts to complain to the labor inspectorate about his employer were unsuccessful. In this situation, the employer’s consent or refusal is his right, not his obligation, in accordance with the determination of the Constitutional Court of the Russian Federation dated 02/05/2004 No. 29-O.

If the director of the company changes his mind and allows Timofeev N.L. to go on vacation before resigning, Timofeev N.L. has a chance to change his mind and not sever the employment relationship.

There is one exception to this rule: it will not be possible to refuse leave before dismissal if a clause on the provision of leave before dismissal is present in the agreement between the employee and the company (employment contract).

Legislation allows an employee to express his desire to return to his workplace after a vacation, but there is a time limit for such a step: he can change his mind only before going on vacation (letter of Rostrud dated December 24, 2007 No. 5277-6-1, ruling of the Constitutional Court dated January 25 .2007 No. 131-О-О).

The next point that requires attention is the legal ban on the “vacation-dismissal” event for a certain category of employees.

Example (continued)

A colleague of the auxiliary worker Timofeev N.L., a truant and rowdy mechanic Gulyaev I.T., who was dismissed under an article for malicious violation of labor discipline, decided, following the example of his friend, to write an application for leave with subsequent dismissal. But the employer refused. According to Art. 127 of the Labor Code of the Russian Federation, malicious violators of labor discipline and those dismissed for this reason do not have the right to leave before dismissal.

The above legislative nuances must be taken into account by both the employee (before writing an application) and the employer (when considering this application).

Right to vacation

Not every employee can exercise the right to leave followed by dismissal.
So, in Art. 127 of the Labor Code of the Russian Federation establishes a restriction for those dismissed for guilty actions. And here we need to figure out what actions of employees are considered guilty.

note

An employee’s action or inaction associated with failure to perform or improper performance of labor duties, in which there is guilt in the form of intent or negligence, is considered guilty.

The list of such actions is in Art. 81 Labor Code of the Russian Federation:

• repeated failure by an employee to fulfill work duties without good reason if he has received a disciplinary sanction (clause 5, part 1);
• one-time gross violation of labor duties by an employee (clause 6, part 1):
• absenteeism;
• appearing at work in a state of alcohol, drug or other toxic intoxication;
• disclosure of secrets protected by law that became known to an employee in connection with the performance of his job duties, including disclosure of personal data of another employee;
• committing theft of someone else's property, embezzlement, intentional destruction or damage at the place of work;
• violation of labor protection requirements;
• the commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer (clause 7, part 1);
• failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party (clause 7.1, part 1);
• the commission by an employee performing educational functions of an immoral offense that is incompatible with the continuation of this work (clause 8, part 1);
• making an unfounded decision by the head of an organization (branch, representative office), his deputies or the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9, part 1);
• one-time gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (clause 10, part 1);
• submission by the employee of false documents to the employer when concluding an employment contract (clause 11, part 1).

Thus, an employee dismissed for one of the listed reasons does not have the right to leave followed by dismissal.

Date of dismissal after vacation: an important aspect

In a “vacation-dismissal” situation, the dates of the last working day and dismissal do not coincide.

In accordance with Art. 84.1 of the Labor Code of the Russian Federation, the day of dismissal (termination of an employment contract) is the last working day of an employee with a given employer. This is the general approach. However, in the situation of going on vacation with subsequent dismissal, the date of dismissal is considered the last day of vacation (Article 127 of the Labor Code of the Russian Federation). And the last working day is the last day the employee goes to work (determination of the Constitutional Court of the Russian Federation dated January 25, 2007 No. 131-О-О).

IMPORTANT! It is necessary to make a final settlement with the employee and issue a work book on the last day of his work before the vacation.

At the same time, from the norms of labor legislation described above, it follows that the dismissal in the work book and order is dated by the last day of the employee’s vacation.

The date of dismissal (as well as the vacation itself) are not postponed if the employee who went on vacation gets sick. The employer has no obligation to extend the rest period for the employee's sick days, despite the general rule prescribed in Art. 124 of the Labor Code of the Russian Federation, since with the start of vacation the employment relationship is considered severed (letter of Rostrud dated December 24, 2007 No. 5277-6-1).

Two ways to go on vacation before quitting

The first option: the employee goes on vacation according to a pre-approved schedule, having written a statement of his own free will before or while already on vacation. At the same time, he can take time off both on pre-planned days according to the schedule, and on those days that he did not have time to use previously.

Second option: the employee writes an application for leave at the same time as an application for resignation of his own free will. In this case, you may not adhere to the established schedule.

The date of termination of the employment contract under Article 127 of the Labor Code of the Russian Federation is in any case considered the last day of rest.

But management can hire a new employee to replace a resigning employee immediately, without waiting for the end of the vacation.

The only chance to retain his position for an employee who has changed his mind about resigning is to withdraw his application on the last day before going on vacation. You can’t do this while you’re on vacation.

Choosing the form of an order for leave with subsequent dismissal

Taking into account the above, having received an application from the employee, the employer will have to issue an order - a local internal act related to the “vacation - dismissal” procedure (Article 84.1 of the Labor Code of the Russian Federation). He also has the right to choose: to order leave and dismissal in one document or to issue 2 orders separately for each part of the “vacation-dismissal” event.

With the first registration option, it will be necessary to issue an order in a independently developed form and provide for the entire scheme in full: granting leave and subsequent termination of the employment contract.

The second option will not require unnecessary actions from the employer - it is enough to fill out the usual unified forms of “vacation” order (T-6, T-6a) and “dismissal” (T-8, T-8a).

IMPORTANT! The formats of documents used by the company (both unified and created in-house) must be approved by the manager and developed taking into account the recommendations of GOST R 15489-1-2007 “Document Management”.

For information on mandatory personnel documents and personnel records, see the material “Personnel documents that must be in the organization .

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.

Sample order for leave with subsequent dismissal at will

Dismissal after vacation is formalized by an order containing 3 main components: introductory part, main text and final elements.

The introductory part of the order contains 2 names: the name of the company (this attribute is required for any internal document) and the title of the order. It may sound like this: “On granting leave with subsequent dismissal.”

The listed elements are supplemented by the order number and its date.

The main text of this document should reflect all the necessary components of the “vacation-dismissal” procedure. Namely: order the provision of leave to the employee (indicating its starting date and duration) and provide for the termination of the employment contract after its end (indicating the details of the contract itself and the date of dismissal).

An integral element of the main text of the order is the instruction from the management to the involved services (HR and accounting) to pay the employee and take care of issuing him a set of “dismissal” papers.

The material “Unified Form No. TD-1 - Employment Contract” .

An example of the design of the main part of the text of an order regulating the stages of dismissal after voluntary leave:

1. Provide mechanic Khusnutdinov P.N. with leave followed by dismissal from November 3 to November 30, 2021, lasting 28 calendar days.

2. Terminate the employment contract dated February 12, 2018 No. 134 with Khusnutdinov P.N. on the basis of clause 3 of Art. 77 Labor Code of the Russian Federation. The day of dismissal is considered to be November 30, 2021.

3. The head of the financial and accounting group, Kamaletdinova R.R., make the final settlement with Khusnutdinov P.N.

4. The head of the personnel department, Aidarov N.G., issue Khusnutdinov P.N. with a work book and other documents provided for by labor legislation, 12/01/2021.

ATTENTION! If you keep work books in electronic form, upon dismissal the employee must be given an electronic version of his work record in the STD-R form. How to fill out the form correctly, see here.

The final elements of the order are a reference to the basis for its execution (Articles 77, 84.1, 127 of the Labor Code of the Russian Federation, personal statement of the employee, etc.) and the signature of the head of the company. An employee going on vacation with subsequent dismissal is familiarized with the order, which he also signs.

How to make an entry in the work book if an employee is granted leave with subsequent dismissal? Find out the answer to this and other questions by getting a free trial access to the ConsultantPlus system.

In what cases can you go on unpaid leave?

The opportunity to go on unpaid leave is provided for in Art. 128 Labor Code of the Russian Federation. This type of leave is provided at the request of the employee, and if there are grounds for it.

The grounds for granting unpaid leave to an employee include:

1. Family circumstances in the life of an employee that the Labor Code of the Russian Federation does not specify.
2. The presence of other valid reasons, an exhaustive list of which is not determined by the Labor Code of the Russian Federation. The reasons can be any, and whether they are valid or not is decided by management.

The duration of the vacation is negotiated separately by the parties to the labor relationship; its minimum and maximum amounts can vary - from one day to infinity (upon reaching an agreement between the employee and the employer).

The procedure for granting unpaid leave to an employee is as follows:

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• the employee applies for unpaid leave;
• the employer is considering it;
• a decision is made and the manager puts a resolution on the application about its satisfaction or non-satisfaction.

Part 2 art. 128 of the Labor Code of the Russian Federation provides for cases when the employer does not have the right to deny an employee his right to go on unpaid leave. The law defines the minimum number of days that an employee can use, depending on the situation. For clarity, we present the reasons for the mandatory provision of unpaid leave and its minimum terms in the table.

Providing leave with subsequent dismissal: the stage of processing payments

An integral part of the “vacation-dismissal” event is the settlement stage. Since the employee not only goes on vacation, but also quits immediately, it is necessary to take into account both types of payments: those related to both the vacation and the final payment.

The executed order, which was described in the previous sections, serves as the basis for issuing a settlement note. If a company has established by its internal local act the use of unified forms in its work, it will have to complete 2 calculations:

1. T-60 “Note-calculation on granting leave to an employee” is filled in with information about the billing period and earnings for the specified period. The average daily earnings, calculated in accordance with the Government Decree on the procedure for calculating the average salary dated December 24, 2007 No. 922, is multiplied by the number of vacation days. As a result, the amount of vacation pay is formed.

The sample posted on our website in the material “Unified Form No. T-60 - Form and Sample” .

1. T-61. “Note-calculation upon termination (termination) of an employment contract with an employee (dismissal)” is drawn up as follows:

• on the front side of the form information about the employee (full name, position) and details of the dismissal order are reflected, and a note is made that the employee did not take full leave or used it in advance;
• on the reverse side of the form, the billing period and earnings for the months of this period are indicated, then the average daily earnings are calculated and the amount of compensation for the part of the vacation not taken off.

IMPORTANT! Compensation is calculated taking into account the payments provided by the company - clause 2 of Resolution No. 922 contains their full list. In this case, individual payments listed in paragraph 5 of Resolution No. 922 are not taken into account.

For the completed version of Order T-61, see the material “Unified Form No. T-61 - Form and Sample” .

We will tell you more about how to calculate “vacation” compensation and in what cases you can do without this calculation in the following sections.

How to calculate the number of vacation days upon dismissal

Payroll calculation should not be difficult, but the question of how to calculate leave upon dismissal is more complicated, since the number of days may exceed the basic duration. This is possible due to previously unused or additional days.

In order not to make a mistake, you first need to determine the total working time, which gives the right to receive annual paid rest (Article 121 of the Labor Code of the Russian Federation). In this case, it is necessary to take into account the specifics of providing additional vacation periods: for work under hazardous working conditions, etc.

Then you need to determine the total number of days that are due for the entire period of work with the employer.

IMPORTANT!

If the number of days turns out to be fractional, then the number is rounded in favor of the employee (letter of the Ministry of Health and Social Development of the Russian Federation dated December 7, 2005 No. 4334-17).

After this, based on the data from time sheets (or other labor accounting documents), the days that the employee has already used are subtracted from the result obtained. As a result, the remaining quantity is calculated.

Step 1. Actual time worked (FOV) = the last 12 months (or less, but actually worked) - excluded periods.

Step 2. Number of days per time worked (KDOV) = (FOV / 12 months) / (the required number of vacation days in the employment contract / 12 months).

Step 3. Number of vacation days (KDO) = KDOV +/- remaining days.

Calculation of vacation compensation

In a situation where an employee goes on vacation and is subsequently fired, compensation for unpaid vacation days is not always calculated. There is no need for calculation if the employee has taken all vacation periods in full.

However, often workers are not allowed to fully rest due to production needs, or the reduced vacation is due to the desire of the employee himself. Then, before dismissal, the employer needs to calculate and pay “vacation” compensation. Its value depends on the number of unused vacation days and average daily earnings.

For information on the specifics of calculating vacation days not taken off, see the material “How to calculate the number of vacation days upon dismissal?” .

The calculation of “vacation” compensation is made not only by the number of vacation days not taken in the current year, but also taking into account the duration of all vacations not used by the date of dismissal. For example, for the last 3 years, an employee has only had 14 of the required 28 days of rest, but this year he earned 20 days of vacation, of which he used only half. By summing up the indicated non-vacation days, we get the number 52 (14 × 3 + 20 / 2) - it must be multiplied by the average daily earnings to determine the amount of “vacation” compensation.

Read more about calculating compensation for unused vacation here .

Duration of vacation

Before dismissal, an employee can use not all vacation, but part of it, and receive monetary compensation for unused vacation.
Therefore, before dismissal, the employee and employer must agree on how many vacation days can be used.

When calculating unused vacation days, the employer should take into account the length of service giving the right to vacation and the number of vacation days already used by the employee for the previous and current years.

However, the question may arise as to how long the employer should provide a rest period to a person who has worked for the organization for six months.

On this matter, Rostrud in Letter No. 5277-6-1 dated December 24, 2007 (hereinafter referred to as Letter No. 5277-6-1) spoke as follows: since the Labor Code does not provide for the provision of incomplete annual paid leave, that is, in proportion to the time worked in a given working year , then full leave is granted (regardless of the time worked in the working year) - the established duration.

When taking a vacation followed by dismissal, leave of the full duration is granted, but in fact only those days of it that would be subject to monetary compensation upon dismissal of the employee will be paid, since the leave that is subject to replacement by monetary compensation upon dismissal is calculated based on the fact that full leave is due to the person who has worked full working year.

Not everyone agrees with this position of officials. In this regard, please note that the opinion of Rostrud officials is not an official explanation or regulatory legal act, and therefore is not subject to mandatory application.

Final settlement

In addition to determining the amount of “vacation” compensation, it is necessary to make a number of calculations and calculations. It all depends on the terms of the employment contract or agreement on its termination, as well as the presence in the company’s internal local acts of reference to compensation, severance pay or other “dismissal” payments.

First of all, you will need to calculate the salary for the days worked, and then make all the necessary deductions to obtain the final settlement amount issued to the employee in connection with his dismissal.

How to calculate salary upon dismissal, read here.

In addition, it is necessary to take into account that labor legislation protects the interests of the employee in a situation of dismissal, providing for the need to pay severance pay.

IMPORTANT! If an employee resigns due to the closure of a company or staff reduction, Art. 178 of the Labor Code of the Russian Federation obliges the employer to pay him severance pay in the amount of the average monthly salary. Find out how to calculate the amount of severance pay here . In addition, this article provides for cases of maintaining the employee’s average monthly earnings during the second (if he brings evidence that he is not yet employed) and third (by decision of the employment service) months after dismissal.

In some cases (for example, an employee is called up for military service), severance pay will have to be paid in the amount of two weeks' average earnings (Articles 77, 83, 178 of the Labor Code of the Russian Federation).

When making a final settlement with a resigning employee, it is necessary to take into account all benefits and compensations due to him (both under labor legislation and those provided for in the employment contract and internal company regulations).

When is it better to leave work: before or after vacation?

The difference between dismissal and vacation under various circumstances was given above. The dismissed employee can only choose which method suits him best, weighing the pros and cons.

1. Before vacation.

Pros:

• the opportunity to reduce the two-week work period or get rid of it altogether;
• calm job search, because the vacation is paid for by the employer;
• Before leaving, they pay a fairly large amount (salary + vacation pay).

Minuses:

• the application can be withdrawn only before going on vacation;
• length of service ceases to be calculated after the last working day.

Similar advantages and disadvantages apply to leave followed by dismissal.

1. During vacation.

Pros:

• no need to work 2 weeks;
• You can withdraw your application before the end of the two-week period;
• being on annual leave is counted toward length of service, i.e., if an employee has had more than 15 days of rest, taking into account a two-week period, then he will have accumulated 2.33 days of the next vacation, which will be paid.

Important! Disadvantage: there is a risk that the vacation was provided to the employee in advance, which means that vacation pay will have to be reimbursed.

It is also important to note that there are some types of leave, for example, to care for a child up to 1.5 or up to 3 years, which are not included in the length of service. If the employee was on vacation due to employment and labor regulations, then she will be compensated for the accumulated days for this period.

1. After vacation.

It often happens that employees, having had a good rest, rethink their work life and come to the conclusion that they want to change it or at least get a job in an organization with more favorable conditions. These thoughts push them to apply immediately after their vacation.

Pros:

• annual leave is included in the length of service (an employee accumulates 2.33 vacation days in 28 days), which means compensation will be added to the salary;
• the right to withdraw the application remains within 2 weeks of processing.

Minuses:

• the need to work 14 days;
• the risk that the vacation was served in advance, which means that part of the money will have to be returned.

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).

An employee fell ill while on vacation

One of the situations that deserve attention when granting leave with subsequent dismissal is the illness of the employee during or after the leave.
Employers often ask the question: should they accrue temporary disability benefits to the employee and is leave extended during illness? There are no particular difficulties regarding the extension of vacation. In contrast to the general rules established in Art. 124 of the Labor Code of the Russian Federation, leave is not extended by the number of days of illness. Such an explanation, in particular, is given in Letter No. 5277-6-1.

But as for calculating benefits, you will first have to refer to Part 2 of Art. 5 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity” (hereinafter referred to as Law No. 255-FZ), according to which temporary disability benefits are paid to insured persons during the period of employment contract, carrying out official or other activities, during which they are subject to compulsory social insurance in case of temporary disability and in connection with maternity, as well as in cases where an illness or injury occurred within 30 calendar days from the date of termination of said work or activity or the period from the date of conclusion of the employment contract until the day of its cancellation.

That is, the employer is obliged to accrue temporary disability benefits if the illness occurs within 30 days from the date of termination of work. In our case, the day of termination of work is actually the day before the start of the vacation. But should we start counting from this day? Some people count from it, and others from the day of dismissal, that is, from the last day of vacation.

In the Ruling of the Supreme Court of the Russian Federation dated November 23, 2015 No. 34-KG15-13, the judges noted that an employee who is in an employment relationship, by virtue of Art. 2 of Law No. 255-FZ, for the entire period of his work until the day of termination of the employment contract, he is an insured person under compulsory social insurance in case of temporary disability. In part 2 art. 127 of the Labor Code of the Russian Federation states: when an employee is granted leave with subsequent dismissal, the day of dismissal is considered the last day of leave, which means it is the day of termination of the employment relationship. That is, in relation to the provisions of Part 2 of Art. 5 of Law No. 255-FZ, the moment of termination of the employment relationship and the beginning of the 30-day period during which the employer is obligated to pay for the sick leave certificate of the dismissed person will be the last day of the employee’s vacation.

The employer’s opinion that the calculation of the 30-day period during which the employee has the right to receive temporary disability benefits from the insurer at the last place of work (that is, the employer) begins from the day preceding the first day of vacation followed by dismissal is erroneous , based on incorrect interpretation and application of substantive law governing disputed relations.

Based on the findings of the court, it can be argued that 30 days should be counted from the last day of vacation. And if the employee no later than 6 months from the date of restoration of working capacity in accordance with Parts 1 and 3 of Art. 12 of Law No. 255-FZ applied for temporary disability benefits and the date of onset of the disease falls during the vacation period, the benefit is paid according to the general rules - based on the employee’s insurance record.

note

If the employee falls ill during vacation (since the law does not provide for the preservation of average earnings on two grounds simultaneously (for vacation and for the period of incapacity) in case of illness during vacation), then the employer must recalculate the benefit in case of incapacity for work that occurred during the period of vacation followed by dismissal .

If the insured event occurred after the end of the vacation, then we count 30 calendar days from the last day of the vacation and, if the employee fell ill during this period, we pay “sick leave” in the amount of 60% of his average earnings (Article 7 of Law No. 255-FZ ).

Results

The procedure for registering leave with subsequent dismissal is initiated by the employee’s application, followed by orders for leave and termination of the employment contract.

An integral stage of this event is the calculation of “vacation” compensation and other payments and deductions. The process is completed by issuing the resigning employee a set of documents (work book, certificates, etc.).

Sources: Labor Code of the Russian Federation

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Registration procedure

Vacation and dismissal at your own expense are very popular in both private and public companies. The main feature is that in this case the time that the employee spends on vacation is not paid by the employer. Thus, the employee actually rests at his own expense. Some categories of citizens are granted such leave on a preferential basis. This applies, for example, to pensioners, disabled people, military veterans and citizens with small children. This type of rest may be provided in the following cases:

• Family circumstances (for example, the need to urgently leave for a certain period of time).
• Marriage. In this case, short-term leave is granted to organize wedding celebrations.
• Birth of a child.
• Death of a loved one.

In the event of a wedding, birth or death, the employee must attach to the leave application a document certifying the authenticity of this event: a marriage (death, birth) certificate.

Also, in private and public companies, employees may be provided with additional unpaid leave for other reasons. The main thing is that these reasons are indicated in the charter of a particular organization. Thus, it is known that many companies let their employees go out at their own expense on their birthday.

It should be borne in mind that providing an employee with unpaid leave does not exempt the employer from providing the same employee with annual paid leave of 28 (or more) calendar days. An employee has the right to add business leave to paid vacations in order to extend the rest period. If ordinary rest is provided strictly in accordance with the schedule, then a person can take rest at his own expense at any time and for any period, as soon as the need arises.

Procedure for provision

Leave without pay followed by dismissal is granted to an employee upon submission of a written application. An employee has the right to resign either at his own request or by agreement of the parties. The second option is used if both the employee and the employer are satisfied with the decision made. There is a third method of dismissal - dismissal under an article of the Labor Code. As a rule, dismissal “under an article” is compulsory and is initiated by the employer.

This happens if there are flagrant violations of labor laws on the part of the employee: absenteeism, prolonged absence from the workplace (more than four hours) without a valid reason, theft of property belonging to the organization or the employer, drunkenness in the workplace.

The article that the employee violated is indicated in the work book as the main reason for dismissal. Such a departure from work can have a very negative impact on the subsequent reputation of the employee; in the future, such an employee may have serious problems with employment. Therefore, the ideal option is to leave by agreement of the parties or at your own request.

According to the Labor Code, an employee is obliged to notify his immediate superior about his resignation two weeks before the actual departure . In other words, after submitting a letter of resignation, a person is required to work for 14 days. However, the law does not stipulate that the outgoing employee must be at work for these two weeks.

At this time, he may be on vacation, on sick leave, on maternity leave, or on a business trip. Therefore, if an employee does not have the desire or opportunity to work the required two weeks (for example, he needs to leave urgently), the ideal option is to take a two-week vacation, followed by a final departure from work. To do this you need:

• Fourteen days before leaving, notify your boss of your intentions.
• Write a letter of resignation and indicate the reason for leaving (“at your own request” or “by agreement of the parties”).
• Write an application for leave at your own expense (sometimes called “household leave”), indicating the reason. The most common formulation of the reason is “for family reasons.”
• Submit both applications for signature to the secretary and the head of the department. Next, the documents go to the director for signature.

It should be borne in mind that the employee must be given a work book immediately after dismissal. You can get it from the secretary or the human resources department. An employer does not have the right to retain an employee’s work record after that person has already quit.

If work books and other documents are located at the main office of the company, and the main office is located in another city, the costs of traveling to the parent organization from the branch are paid by the employer.

Violation of the Labor Code

Having looked at the contents of the Labor Code of the Russian Federation, you can clearly see: management does not have the right to forcibly send its employees on vacation, much less force them to resign. Failure to comply with these labor laws may result in criminal or administrative liability. At best, the employer will be forced to pay a large fine. In the worst case, he may be sentenced to imprisonment or community corrections.

If a worker believes that his boss is violating his rights by forcing him to take leave with subsequent resignation, he must contact the trade union organization. Such organizations, as a rule, exist in all government institutions (hospitals, schools, cultural institutions). Even if this person is not a member of a trade union, he is obliged to provide the necessary assistance and advice. Things are worse for those who work in private companies, because in such organizations there are usually no trade union committees. But even in this case, you can find justice for a negligent boss by filing an application in court.

If an employer sends employees on unpaid leave, citing the fact that the enterprise is idle (for example, there are no raw materials for work or there are no clients), this is also a gross violation of Russian labor legislation. According to the Labor Code, for each day the plant (factory, company) is idle, the boss is obliged to pay his subordinates the average daily wage. Forced downtime must always be paid.

If the employee knows labor law well, it will not be difficult to arrange for economic leave with aftercare . The main thing is to try to maintain a good relationship with your superiors. To do this, you need, first of all, to notify your manager in advance about your plans and try to complete all your business. Then the company will calmly bear the departure of the employee, and the manager will have time to find a replacement for the one who quits. Household leave before leaving is a great way to avoid compulsory work for two weeks and significantly save the time that will definitely be required to find a new job.

Dismissal after vacation in “1C: Salary and Personnel Management 8” (rev. 3)

Let's consider the procedure for reflecting in 1C: Salaries and Personnel Management 8, edition 3, the dismissal of an employee after a vacation.

In the organization, local regulations stipulate that upon dismissal, deduction for vacation used in advance is registered as a reversal of accruals and reduces personal income tax and insurance premiums.

Employee S.S. Gorbunkov has been working since February 22, 2018. Starting from the next working year - 02/22/2019 S.S. Gorbunkov did not use his right to basic annual leave. Starting from the first day of the next working year (02/22/2019), the employee can use a full 28 days of vacation. The employee announced his intention to go on vacation in accordance with the schedule for 28 days from 08/01/2019. As of 08/01/2019, the accumulated vacation balance is reflected in the Certificate of Vacation Balances report and amounts to 8.67 days (Fig. 2). This means that 19.33 days of vacation are provided to the employee in advance.

Rice. 2. Certificate of vacation balances

The employee was accrued and paid for 28 days of vacation for the period 08/01/2019-08/28/2019 in the amount of RUB 28,668.92.

Example 1

During the final calculation in the Dismissal document, on the Vacation Compensation tab, the number of days for which the vacation used in advance should be Withheld is calculated (Fig. 3).

As of the day of dismissal, September 12, 2019, this is 14.67 days. Of the previously accrued vacation pay, 15,020.47 rubles are reversed, and personal income tax in the amount of 1,953 rubles. returnable. If the employee had accrued amounts, then the vacation reversal could be offset. In accordance with the condition of Example 1, accruals upon final settlement from S.S. There is no Gorbunkov, therefore, there is no reason for the employer to receive excessively accrued vacation pay from the employee.

Rice. 3. Analysis of the vacation balance during the final payment upon dismissal

Dismissal at the initiative of the employee

An application for dismissal on the initiative of an employee (at his own request) does not imply approval by the employer and is of a notification nature. However, Article 80 of the Labor Code of the Russian Federation, which regulates the procedure for terminating an employment contract at the initiative of an employee, provides for compliance with certain rules by both the employee and the employer.

Note

The article does not discuss dismissal at the initiative of the employer.

As a general rule, an employee must notify the employer in writing of his dismissal no later than 2 weeks in advance. The two-week period begins on the day after the date the employer receives the application. The specified two-week period includes non-working days.

Please be aware of statutory exceptions. For example, dismissal during the probationary period: in this case, it is enough to notify the employer just 3 days before dismissal. If the head of an organization resigns, notice of dismissal must be given one month in advance.

By agreement between the employee and the employer, the period before dismissal can be shortened or extended by indicating the corresponding date in the resignation letter.

On the day of dismissal, the employer should complete all documents and issue the final payment to the employee (Article 140 of the Labor Code of the Russian Federation). If the last day of a two-week period falls on a non-working day, then the end of the period is considered to be the next working day following it (Article 14 of the Labor Code of the Russian Federation).

The law does not oblige an employee to be at the workplace during the period before dismissal. The Labor Code does not contain such a thing as “working two weeks before dismissal.” Part 1 of Article 80 of the Labor Code of the Russian Federation states the need to warn the employer in writing at least 2 weeks before dismissal.

An employee may go on vacation (according to a schedule or in agreement with management), be on sick leave, etc. In this case, the specified period is not extended and is provided to the employer to select a replacement for the resigning employee. The employee should be dismissed on the day agreed with the employer and specified in the application at his own request.

Deductions upon dismissal in “1C: Salaries and personnel management 8” (rev. 3)

In the section Deduction upon dismissal for vacation used in advance, select the appropriate switch position: Retention and does not reduce taxes and contributions or Reversal of accruals and reduces taxes and contributions (Settings menu - Payroll - link Setting up the composition of accruals and deductions - Deductions tab), rice. 1.

Rice. 1. Setting up deduction upon dismissal for vacation used in advance

By default, in the program “1C: Salary and Personnel Management 8” (rev. 3), the deduction upon dismissal for vacation used in advance is reversed and reduces personal income tax and insurance premiums.