Dismissal of employees must be carried out in accordance with regulations. The procedure involves issuing an order, making calculations, and making entries in the work book. This is a standard process and usually does not cause problems. However, sometimes employers face problems. They are associated with non-standard situations. For example, many employers do not know whether it is possible to fire employees on a day off. Let's look at the question in this article.
Question: On what day should an employee be dismissed at his own request and a work book be issued if the two-week notice period for dismissal expires on a holiday, which is a day off for the employee? View answer
Is the last day of work paid upon dismissal?
Labor relations are terminated according to the general rules established by Art.
84.1 of the Labor Code of the Russian Federation, taking into account the specifics of the legislation for some cases (termination of a fixed-term contract, preservation of a job for a non-working employee, etc.). The same norm contains an answer to the question of whether the day an employee is dismissed from his position is considered a working day.
Based on Part 3 of Art. 84.1 day of dismissal is the last working day. However, there are exceptions, which we will discuss below.
On the last working day, the employer is obliged to complete all procedures provided for by the Labor Code of the Russian Federation (including handing over a work book). This day is paid in full as a working day.
What document should be issued if an employee chooses an electronic format for maintaining a work record instead of a paper one? The answer to this question is in ConsultantPlus. Get free demo access to K+ and get tips from the experts.
The date of dismissal is determined:
- expiration date of the fixed-term employment contract;
- the expiration of the two-week period allotted for working out when filing an application on the initiative of the employee;
- on the day of issuance of the dismissal order upon termination of employment relations at the initiative of the organization;
- the day of expiration of the notice period for staff reduction established by labor legislation;
- the date on which the parties to the employment relationship agreed to terminate it.
basic information
The specialist’s work schedule and the administration’s work schedule may not coincide. The final working day may fall on Saturday or Sunday. What to do in such a situation? The procedure for terminating an employment agreement is regulated by Article 84.1 of the Labor Code of the Russian Federation. On the last day of work with an employee, a calculation is made based on Article 140 of the Labor Code of the Russian Federation. He is given all the required documents.
Question: Which day is considered the date of dismissal if the vacation followed by dismissal ends on a day off? View answer
Regardless of the reasons for which the contract is terminated, the date of dismissal is considered to be the final day of work. There is only one exception to this rule: the specialist does not actually work in the company, but his place is reserved on the basis of laws.
The closing date may be a day that is a day off for the administrative and personnel departments. Such situations are not regulated by the Labor Code. The procedure is determined based on established practice. Let's consider the employer's options.
Question: When to make a calculation, issue an order and issue a work book to an employee if his last day of work is a day off for the accounting department? View answer
Changing the provisions of the resignation letter
Let's give an example. The employee submitted a letter of resignation. He must work for 2 weeks. The end of these two weeks falls on Wednesday, which is a day off for the employee. In this case, to avoid difficulties, the employer can reach an agreement with the subordinate. He may ask to rewrite the application so that the dismissal date falls on a weekend.
Question: What are the features of dismissal due to reduction if the day of dismissal falls on a day off ? View answer
If the specialist refuses, the boss does not have the right to change the dates on his own. Everything must happen with the consent of the worker. Dismissal on another date violates the employee's rights. In this situation, the employee’s right to withdraw the application is violated (Part 4 of Article 80 of the Labor Code of the Russian Federation). This right is granted on the basis of Part 4 of Article 80 of the Labor Code of the Russian Federation. Recalls can be made up to 24 hours before the scheduled date. An employee’s request can be denied if the following circumstances exist:
- The review is carried out during vacation. The employee did not complete the review before the first day of vacation.
- The employee is going on vacation with subsequent termination of the agreement, but another employee has already been invited to take his place.
- Another specialist has been invited to take the place of the employee, who cannot be denied employment on the basis of the law.
Typically, the issue of the date of dismissal is not fundamental for the employee, and therefore he easily agrees to the employer’s conditions.
IMPORTANT! An employer cannot change the date when reducing staff. If the deadlines are violated, employees are reinstated at the company.
Dismissal on a day off
Part 3 of Article 84.1 of the Labor Code of the Russian Federation does not stipulate that dismissal can only be carried out on an employee’s working day. Therefore, terminating the contract on a weekend will not be contrary to the law. What to do if the employee does not show up for work on the day of his dismissal? These options exist:
- Sending a notification that the employee must pick up his work book. To do this, he can either come to the company or give his consent to send the document by mail (Part 6 of Article 84.1 of the Labor Code of the Russian Federation).
- Settlements with the worker are made no later than the day when he presented the relevant demands (Article 140 of the Labor Code of the Russian Federation).
Termination can be carried out on a day off. However, this does not relieve the employer of his responsibilities. He must pay the employee the required funds, as well as hand over the work book.
The administration does not work on the day of dismissal
It is quite simple for an employee to terminate an employment agreement on a day off. Difficulties arise when the administration is on vacation on the selected date. In particular, the HR officer and accountant are expected to have a day off. Part 1 of Article 113 of the Labor Code of the Russian Federation states that work on weekends is prohibited.
What to do in this situation? The Labor Code of the Russian Federation does not provide for the transfer of settlement obligations to another date. That is, calculations are made, the book must be issued on the date of dismissal. The employer will have to involve a personnel officer or accountant in the work. In order not to break the law, the employer must compensate for work on a day off. There are two compensation options:
- Double wages.
- Providing a day off on another day.
Compensation is regulated by parts 1 and 3 of Article 153 of the Labor Code of the Russian Federation.
Termination of a fixed-term employment agreement on a day off
There are two positions regarding the termination of a fixed-term agreement:
- If the contract expires on a weekend, the termination date will be the last work shift that precedes the weekend.
- The date of dismissal will be the next shift after the day off (based on Article 14 of the Labor Code of the Russian Federation, a number of appeal rulings).
There is also a position that the date cannot be postponed. That is, the employer must involve a personnel officer and an accountant to work on the day off.
In what cases can an employee be fired if he is absent from the workplace?
The day of dismissal is considered a working day, but not always. Situations may arise when an employee does not work for various reasons, but he must be dismissed regardless of his presence in the workplace. Worker:
- is absent from the workplace because he is a participant in collective bargaining;
- in accordance with a medical report, cannot continue to perform work duties;
- is on vacation, previously wrote a statement of his own free will, and at the end of the work period the vacation has not yet ended;
- at the time of dismissal due to liquidation of the organization or staff reduction, is on parental leave;
- participates in a strike on the day of dismissal;
- is a member of the election commission.
See also “Dismissal by agreement of the parties on sick leave”.
What is calculation
The common concept of “payment upon dismissal” hides a large number of different payments that an organization must make if the employment contract with an employee is terminated. However, the composition of such payments may vary depending on the reason for leaving. It always includes:
- wages for the last days worked;
- compensation for unused vacation or vacation pay if a person goes on vacation with subsequent dismissal.
The remaining components, such as severance pay, depend on the reason for dismissal (staff reduction, liquidation of the organization, agreement of the parties).
It is worth noting that if, upon termination of an employment contract before the end of the calendar year, a person has already used vacation for this period, then the accounting department has the right to withhold funds previously paid from him for vacation days not taken off. In this case, the due salary is reduced by the corresponding amount, but not more than 20% (Part 1 of Article 138 of the Labor Code of the Russian Federation). If more money has been accrued for return, then the person who resigned can return it voluntarily (to the cash desk or to an account), or they can be recovered in court.
What date should be indicated in the employee’s resignation letter and in the dismissal order?
On the day of dismissal of the employee, an order is issued in form No. T-8 or another, if the organization does not use unified forms. However, the date in the order does not always coincide with the day of dismissal.
If the initiator of dismissal is the employer, then the order indicates the employee’s last working day when he went to work.
In addition, the order may contain a date for future dismissal, i.e., the day on which the employee will receive payment and be dismissed is determined. In this case, the date of issue of the order precedes the date of dismissal. However, if the grounds for dismissal for some reason no longer exist, for example, the employee withdrew his application, then the order will have to be canceled.
If an employee resigns of his own free will, he can indicate in the application any date outside the two-week period of work, regardless of what day of the week it falls on. In this case, the day of dismissal in the order will indicate the day following the last day of work.
If an employee is dismissed by agreement of the parties, the order indicates the date reflected in the agreement on termination of the employment contract.
How to correctly calculate compensation upon dismissal in 2021, read here.
Question No. 3
What actions does the employer have the right to take if the employee does not show up for work the day after submitting his resignation?
Based on Art. 80 of the Labor Code of the Russian Federation, an employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, and by agreement between the employee and the employer, the employment contract can be terminated before the expiration of the notice period for dismissal.
If there is no agreement between the employee and the employer on the timing of termination of the employment contract before the expiration of a two-week period, and there are no circumstances guaranteeing the employee the right to dismissal on a day determined by the employee himself, his application to terminate the employment relationship at his own request can only be correlated with a two-week period. warning period.
Thus, if an employee, who has declared in writing to terminate the employment contract of his own free will, does not go to work the next day after submitting his letter of resignation to the employer, such absence may be classified by the employer as a disciplinary offense and lead to consideration of the issue of dismissal of such an employee under paragraphs. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. If there is no intention to dismiss the specified employee for absenteeism, the employer has the right to terminate his employment contract on the day of expiration of the corresponding two-week period.
Responsibility for delay
If the employer does not meet the payment deadline provided for by labor legislation, in accordance with Article 236 of the Labor Code of the Russian Federation, he must pay compensation for each day of delay in the amount of 1/150 of the Central Bank key rate in effect during the period of delay. In addition, Article 5.27 of the Code of Administrative Offenses of the Russian Federation provides for fines for late payment of wages, which equally apply to calculations upon dismissal. The fine is:
- for officials - from 20,000 to 30,000 rubles (including with disqualification for up to 3 years);
- for individual entrepreneurs - from 10,000 to 30,000 rubles;
- for organizations - from 50,000 to 100,000 rubles.
In addition, in some cases, criminal liability of officials is provided.
Let's turn to the legislation
If the day of dismissal falls on a holiday, what should you do in such a situation? Let's turn to Art. 14 of the Labor Code of the Russian Federation, which is devoted to determining deadlines in the work process. According to it, if the employee’s departure date falls on a weekend or holiday, the next working day should be considered the day of termination of the contract.
For example, if an employee works five days a week, and the day of leaving the organization falls on Saturday or Sunday, the calculation and issuance of the work book are postponed to the next working day, i.e. Monday.
