Dismissal on a day off at the employee's own request
Sometimes there are situations that baffle personnel officers. For example: if the last working day falls on a weekend, how to fire?
First, you need to figure out whose day off you mean - the employee or, say, the HR department? Such circumstances may arise during a shift work schedule.
So, is it possible to fire an employee on his day off? Of course you can. In Art. 84.1 of the Labor Code of the Russian Federation states that termination of an employment contract is formalized either on the last working day or during the period when the quitter retained his place of work. On a day off during a shift schedule, the employee has an employment relationship with the organization, so fire him without any problems.
How to fire someone if, for example, Saturday is the last working day for an employee, and the HR department is on vacation? It is impossible to delay the issuance of documents, which means that an employee of the HR and accounting department will have to go to work on a non-working day (and the employer will have to pay double for such an exit or provide another day of rest).
Instructions
Article 84 of the Labor Code does not say that you can fire a person on a day off. The employee will be able to receive a book with all entries. There are, of course, cases where an employer does not have the right to change the employee's expulsion date. It should also be taken into account that an employee who is not dismissed on time and continues to perform his duties automatically continues his employment relationship. In this case, the dismissal will need to be repeated again. If an employee does not show up for work on a day off, which is also considered the day of his dismissal, the organization’s administration must act as follows:
- First of all, an application for termination of the contract is drawn up. It is important to clearly state all the grounds for dismissal.
- Next, an order must be drawn up, which contains all the information about the employee, the reason why he should be excluded from the staff and the date. The employee must familiarize himself with such an order with his personal signature.
- The next step is to fill out a work book. All statements for payments are being prepared.
- The final stage will be the settlement of the employee.
Of course, when leaving on a day off, there are certain nuances, for example, they may be associated with hiring a new employee. If the employee who previously held the position was not fired and was not given a work book, then the new employee who took his place will not be able to officially work in this position for now.
Termination of contract with employees with privileges
The Labor Code of the Russian Federation describes situations when the employer is obliged to formalize dismissal on the day the application is submitted. We are talking about situations where an employee may not give notice of his intention to terminate the employment agreement, for example, when retiring or being called up for service.
Based on Art. 14 of the Labor Code of the Russian Federation, if the date specified in the employee’s application is a day off or an official holiday, then the employer has the right to complete all paperwork on the next working day. However, there are situations when there is no time to wait, for example, a conscript needs to arrive at the appointed place on Monday, but he works until Saturday inclusive. In this case, by special order of the manager, all persons responsible for issuing the work book and the final payment are involved in performing duties during non-working hours.
Settlement for a misdemeanor
If an employee commits an offense, then there is no reason to fire him without warning him in advance. The employer has the right to choose any nearest day for dismissal. It is worth noting that in this case, proof of misconduct plays an important role, then dismissal from the position will be carried out legally.
For example, Petrov S.V. constantly violated labor discipline. The manager submitted three notes to the chief with a report on absenteeism that occurred during a certain period. Also attached to the report was an act that was drawn up by a special commission, which must include at least three people. After this, the employee received a written notice with a requirement to explain the reasons for absenteeism within two days. The next day after such notification, Petrov was able to provide an explanation, indicating that he could not go to work because he was intoxicated. After this, the manager terminated the employment contract with him, guided by Article 81 of the Labor Code.
Dismissal on a holiday (fixed-term employment contract)
If the day of dismissal falls on a holiday, and the employee needs to be fired due to the expiration of a fixed-term employment contract, then the order can be issued either directly on a non-working day or holiday, or on the last working day preceding the holiday.
Please note that if you dismiss on a day off, you must make a full settlement with the employee at the same time. If the contract was terminated, for example, on Saturday, and the employee receives wages for days worked and other required payments only on Tuesday, then the employer must pay for the delay in wages. Based on Art. 236 of the Labor Code of the Russian Federation, compensation for each day of delay, starting from the next, is 1/150 of the Central Bank key rate on the unpaid amount.
Upon liquidation of an organization or reduction
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If an employee must leave his workplace due to impending dismissal, then management must warn him in advance, the period is two months. It happens that this period expires on a weekend, especially if the working week is five days. The dismissal order must be written on Friday. The document may include a late date for the release of the position, for example, it may fall on Saturday or Sunday.
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This is also important to know:
What certificates must an employer issue when dismissing an employee in 2021?
For example, T.E. Ustinova was warned on July 31, 2021 that the staff was being reduced and she was being fired. After this, the two month count started and her dismissal date falls on Saturday 30th September. The dismissal order may be ready as early as the 28th, and the dismissal date itself will be September 29th.
Answers to frequently asked questions (to summarize)
If the dismissal date falls on a weekend, what day should you dismiss?
To accurately answer the question, it is important to understand whether the day of termination of the employment contract was a day off for the employee or not. If he worked on that day, then he should be fired on that day. If you didn’t work - according to Art. 14 of the Labor Code of the Russian Federation, he will need to be fired on the next working day, for example on Monday. However, this may disrupt the employee's plans. Perhaps on Monday he will have to go to work in another organization. Then both the employee himself and the personnel officer and accountant will have to go to work (we wrote about this above).
If the dismissal date falls on a weekend, when should the order be made?
The order, of course, can be prepared in advance, as soon as an application has been received from the employee and management has decided not to object to the termination of the contract. As for the date of the order, there is a controversial point. Experts suggest, by agreement with the employee, date the order on the last working day before the date of dismissal (and issue all documents on the same day). In the work book, the date will be a day off, and the date of the order will be the day before. However, there is a danger in this method: the employee may change his mind on the last (day off) day and complain to the Labor Inspectorate that he was deprived of this right. To avoid this, it is better to document the agreement with the employee to complete all formalities on the eve of the day of dismissal (this could be a personal statement from the employee with a request to issue documents and make payments on the agreed working day).
If the day of dismissal falls on a weekend, when should the amounts due upon termination of the contract be paid?
As in the situation described above, it is recommended that all payments be made on the eve of the employee’s last day of work - on the last working day.
Normative base
To understand this issue in detail and determine where the work comes from on a day off, you should initially carefully study the issue of calculating wages. The law states that organizations can choose a payment system, so if an employee is assigned shifts at that time, he can work them on holidays or weekends. This means that the employee who submitted the application may be paid on a weekend or holiday.
The Labor Code also states that the last day on which the employee went to work will be considered the day of dismissal; a bypass sheet is filled out on the same day. The law does not specifically say which day should be the settlement day, so a day off is acceptable for this.
Agreement of the parties
In case of dismissal, which is carried out by agreement of the parties, the rules apply that are relevant for dismissal at one's own request. The main thing that is important is the date indicated in the order. In this case, the working period does not apply. The actual date of dismissal is chosen by the employee together with the employer. In this case, both parties can agree and set a date on a working day; the law in this case has no restrictions.
There are different situations, for example, in 2008, when there was a big crisis, the head of the organization needed to fire a large number of employees, he proposed to do this by agreement of the parties.
When to pay taxes when dismissing an employee
All payments made as part of the calculation:
- are subject to personal income tax and insurance contributions (except for severance pay);
- are subject to inclusion in the organization's expenses for tax purposes (income tax or single tax on the simplified tax system).
Severance pay, if it does not exceed three times the average monthly salary, is not subject to personal income tax and insurance contributions. For persons who work in the Far North and equivalent areas, the amount of non-taxable benefits is 6 average monthly wages.
The transfer of personal income tax to the budget must be made the next day after the payment of money to an individual (clause 6 of Article 226 of the Tax Code of the Russian Federation), and the transfer of insurance premiums occurs according to the general rule: on the 15th day of the calendar month following the calendar month for which they were accrued .
Calculation on vacation and sick leave
In the event that a citizen is undergoing treatment, his position must be retained. In this case, it is also allowed to set a day off as dismissal. Taking into account the law, it is necessary to remember that it is possible to terminate a contract without an employee only if he has written a letter of resignation of his own free will. If the idea of layoffs belongs to the head of the organization, then you will need to wait until the employee returns to his place.
A special case is leave with aftercare. When to make the calculation? If the date of departure falls on the final day of vacation, regardless of whether it is a vacation, the employee receives a payment before the vacation, and at the same time he must be given a work book. If an employee goes on vacation and then plans to resign, he must understand that he will not be able to withdraw his application and his job will not be saved.
This is also important to know:
Paying sick leave after dismissal
For example, April 28, 2021, O.I. Casanov decided to leave his job of his own free will, but did not indicate the date of termination of the agreement. Having worked for two weeks, the dismissal date fell on Saturday - May 12, but from May 7 the employee was officially on sick leave until May 18. The employee did not withdraw his application, and an order was prepared for him on May 11, with the date of termination of the contract with him indicated as May 12. As soon as the employee completed treatment, he brought the sick leave to the manager, they made a calculation for him, gave him the work book and paid the sick leave.
