Among the circumstances that serve as a reason for termination of an employment agreement, regardless of the desire of both parties, the law names conscription for military service or an alternative civil service. At first glance, the procedure for completing labor relations in such a situation is simple - the military registration and enlistment office called the citizen, the employer fired him. However, in practice, most employers, when applying the considered grounds for dismissal, are faced with many problems and questions that require clarification - what document should become the basis for issuing an order, how to determine the date of dismissal, what to do if the employee is “forcibly” taken away from work, and familiarize yourself with the administrative documentation and it is not possible to calculate it?
Is a working person drafted into military service?
Termination of labor relations due to a person’s conscription for military service is regulated by Art.
83 Labor Code of the Russian Federation. Such a basis does not depend on the will of the employer and employee and provides for the presence of a third party starting the process (military registration and enlistment office). Men whose age is in the range of 18-27 years, who are registered with the military and who are not in the reserves are subject to being sent to the army (Article 22 of Federal Law No. 53 of March 28, 1998).
Persons not invited:
- Exempt from military duty, including those previously involved in alternative civil service (Article 23 of Federal Law No. 53 of March 28, 1998).
- Having a deferment - provided for health reasons, if there are two or more children under 3 years of age, or the need to support disabled parents (Article 24 of the Federal Law No. 53 of March 28, 1998).
The employer learns about the employee’s obligation to serve in the army from the military ID presented upon employment. Organizations (with the exception of individual entrepreneurs) must maintain military records (Article 8 of Federal Law No. 61 of May 31, 1996). Therefore, the employer has information whether his employee can be called up to serve.
For failure to submit data on employees liable for military service to the authorized body, penalties are imposed on the employer (Article 21.1 of the Code of Administrative Offenses of the Russian Federation).
An employee can be drafted into the army in standard periods: from April to July or from October to December. For some persons, a change in period is provided. For example, teachers are involved in service from May to July, agricultural workers - from October to December.
The summons came to the authorities
Since the employer is interested in the military activities of his employee, a second copy of the summons can be sent to the employee’s manager. If the document arrived at the company's address:
- The supervisor must verify the reason for the call. If he finds even one error, he can ignore receiving the paper.
- The summons must be delivered at least 3 days before the call to duty. This period is necessary so that the employer can prepare an order and legally dismiss the person.
- Any agreements between the personnel officer and the employee after signing the order must be documented (sometimes the company agrees to retain the position after service).
Important. Upon receipt of a summons addressed to the company, management does not have the right to force you to work for 2 weeks.
Do I need to resign because I am leaving?
In some cases, employees do not notify the employer of the need to serve in the army. That is, a person does not intentionally or due to certain circumstances resign before leaving for service. If the employer can confirm that the person has left for the army, he has the right to terminate the contract with him unilaterally.
In this case, the algorithm of actions is as follows:
- A note about a person’s absence from work due to undetermined circumstances is made daily on the working time sheet.
- If a person is liable for military service, as indicated by his age and military ID data, a corresponding request is sent to the military registration and enlistment office at the employee’s place of registration.
- When confirmation of the call comes from the authority, the employer has the right to terminate the employment relationship with the employee on the basis of paragraph 1 of Art. 83 Labor Code of the Russian Federation.
If a person is absent for another reason that is considered unexcused, the employer has the right to fire him for absenteeism.
When a working relationship is terminated in absentia, difficulties arise in familiarizing the employee with the order and handing over the work book to him. Then the corresponding mark is placed on the order. The work book remains in storage at the enterprise for 75 years or until demanded by the citizen.
At the written request of the employee, documentation can be sent by mail to the designated address or transferred to the person’s representative acting on the basis of a power of attorney.
What amounts of money are due upon leaving?
Wage
First of all, the person leaving must receive money for the days actually worked. Both the salary and all incentive and compensation payments due to the conscripted employee must be paid.
Compensation for missed vacation
Payment to a conscript for unused days of annual paid leave is carried out on a general basis with normal dismissal. The amount of money to be transferred is calculated using the formula below:
The amount of compensation for vacation = the number of calendar days of vacation not used by the employee * his average daily wage.
Calculation example:
Conditions: the employee leaving for the army worked at the current enterprise for 5 months before his conscription into the Armed Forces of the Russian Federation and was not on vacation for a single day; his salary for the year amounted to 500,000 rubles.
Average daily fee = 500,000 / 12 / 29.3 = 1,422.07.
Number of unused days = 28 calendar days of vacation * 5 months / 12 = 11.66.
To be paid to the conscript = 11.66 * 1,422.07 = 16,581.33 rubles.
In this case, as in some others, the employer will not be able to claim back vacation pay transferred “in advance.”
How can such a person be fired from his job?
An employee called up to the army is dismissed under paragraph 1 of Art. 83 Labor Code of the Russian Federation. The basis is a summons from the military registration and enlistment office. Regulatory documentation does not regulate the date of termination of the contract, however, the procedure must be completed at least one day before the employee departs for the gathering place. The citizen must have time to arrive at the address specified in the summons.
If a person has not notified the employer about leaving, the day of termination of the working relationship is set as the last working day in the institution. There is no need to dismiss a person directly on the day the notice is submitted from the military registration and enlistment office - this is possible only at the request of the employee.
An employee has the right not to work for the period specified by law in the organization upon termination of the contract due to military conscription.
Dismissal under paragraph 1 of Art. 83 of the Labor Code of the Russian Federation to the termination of working relationships due to departure for military service under a contract. In the latter case, dismissal is formalized at the initiative of the employee, which involves employment with another employer.
What documents are needed?
The basis that triggers the procedure for terminating a working relationship is a summons from the military commissariat. The document acts as a notification to the citizen about the need to undergo military or alternative civilian service.
Other subpoenas (for medical examination, submission of documentation) are not recognized as grounds for termination of employment relationships.
Since the dismissal does not occur by the employee’s decision, he is not required to write a letter of resignation. However, some employers ask to fill out an application to record the date of termination of the working relationship.
The dismissal order is issued in a standard form (T-8 or developed on the basis of T-8) indicating the reason for the citizen’s departure with reference to the normative act (Clause 1, Article 83 of the Labor Code of the Russian Federation).
The summons can be sent either directly to the employee or at his place of work.
In the latter option, the employer is obliged to notify the citizen about this (against signature) up to 3 days before the specified date of appearance at the commissariat. If the employer conceals the fact of the existence of a subpoena, he may be subject to penalties (Articles 21.2, 21.3 of the Code of Administrative Offenses of the Russian Federation).
In what order should I apply?
The procedure for terminating an employment relationship due to military conscription is carried out according to a standard algorithm, but with some features:
- The dismissal is triggered by a summons from the military registration and enlistment office. A resignation letter is not a mandatory registration stage. The employer has no right to force the employee to write it. Working off is also not provided in this case.
- Based on the summons, an order is issued, which the employee is introduced to upon signature. If a person is absent from the workplace, a corresponding mark is placed on the document. The date of termination of employment is the last working day of the conscript.
- Information about dismissal is entered into the employee’s personal card and work book.
- On the final working day, payments are settled with the citizen. Working documentation is handed over to him (work book, upon request, a copy of the order, certificate of income).
After the dismissal, the employer must inform the military registration and enlistment office about this within 2 weeks.
Filling out a work book
The entry in the work book includes the following data:
- record number;
- date of termination of the employment relationship;
- reason for leaving;
- order details.
The grounds for termination of the contract are entered in accordance with the wording in the order and must contain a reference to the legal act: “Dismissed due to conscription for military (or alternative civilian) service, paragraph 1 of Art. 83 Labor Code of the Russian Federation."
Sample entry in the work book about dismissal due to conscription into the army:
The work book is handed over to the employee on the final working day or remains in storage at the enterprise (in the absence of the employee).
Upon written request, it can be sent by mail or given to an authorized person.
The legislative framework
Dismissal from work due to conscription into the army is usually understood as the termination of the employment relationship between the head of the company and the employee due to the presence of important grounds that cannot be ignored or attempted to be eliminated. The process for terminating a contract depends on the wording of the agenda.
Dismissal based on conscription into the army is regulated by the following regulations:
- Labor Code of Russia (in particular, Article 83, paragraph 1 part 1, article 178);
- Decree of the Government of Russia No. 719 “On approval of the Regulations on military registration” dated November 27, 2006 (amendments and additions dated March 16, 2021);
- Federal Law No. 53 “On Military Duty and Military Service” of March 28, 1998.
The following categories of men are subject to military registration:
- over 18 years of age but under 28 years of age;
- which are in reserve in accordance with Russian Federation Law No. 53.
Payments to an employee who leaves to serve
Payments to the dismissed employee are made on the final working day.
Payouts include:
- earnings for actual hours worked;
- monetary compensation for vacation days not taken off;
- severance pay - in the amount of 2 weeks' average salary for the last year.
If an employment contract was drawn up with a person for a period of up to 2 months, then severance pay is not accrued to him.
If the employee is absent, the payment is transferred to his card or the salary is deposited. In the latter case, the money is not paid until:
- the appearance of a former employee or his representative acting on the basis of a power of attorney;
- receiving information from the leadership of the military unit about the procedure for transferring funds (for example, referral to the place of service).
The employer does not have the right to demand that the employee return funds for vacation used in advance before terminating the contract in connection with military conscription.
When to calculate
On the day of dismissal, final payment must be made to the employee. The payments he should receive include:
- wages for the time actually worked before the day of dismissal due to conscription;
- monetary compensation for unused vacation (if vacation pay is accrued in advance, it cannot be withheld);
- severance pay, the amount of which is two weeks’ average earnings, which is not subject to personal income tax.
Possible difficulties
When terminating an employment relationship with a person serving in the military, some difficulties may arise:
- When choosing grounds for dismissal. It is important to take into account that termination of the contract under paragraph 1 of Art. 83 of the Labor Code of the Russian Federation is allowed only during army conscription. This article does not apply and dismissal is not carried out upon receipt of a summons for training, upon entering service under a contract, and so on. However, such a basis (clause 1. Article 83 of the Labor Code of the Russian Federation) is mandatory when calling a citizen to alternative civil service. In this case, forcing a person to write a letter of resignation at will is unlawful.
- When determining the date of dismissal. Termination is not carried out on the day the employer receives the summons. The date is calculated taking into account the day when the citizen must arrive at the collection point (at least one day). The date of dismissal is the last day actually worked by the person.
- When familiarizing yourself with the order, issuance of the work book, calculation. Difficulties arise when an employee is absent from work. In this case, an appropriate note is made on the order, the money and documentation remain in storage in the organization or, upon official request, are sent to the citizen.
We can briefly summarize what has been discussed: termination of employment relationships in connection with military conscription is carried out on the basis of a summons sent from the military registration and enlistment office to the employee or employer. In this case, processing is not provided. Registration of dismissal is carried out according to the standard algorithm based on the order.
In addition to basic payments, the employee is also provided with severance pay in the amount of 2 weeks' earnings. A person’s job is retained only if he is employed in a government agency.
When should a conscript be dismissed?
When an employee receives a summons to serve in the army, the head of the company has a question about the time frame for dismissal. The Labor Code of the Russian Federation does not describe how the date of termination of a contract with a conscript employee is determined.
It is clear that the period of dismissal must precede the day of reporting to the place indicated in the summons for the man to perform military service. As a rule, the deadline for terminating an employment contract due to conscription into the army is quite short.
They depend on how many days the employee has left before leaving for service. There are cases when a person manages to work a few more days.
But there are often situations in which it is necessary to fire a person immediately after receiving a summons from the military registration and enlistment office.
It is important not to confuse dismissal based on conscription into the army with contract service. In the latter case, the relationship between the head of the company and the employee is terminated by agreement of the parties or the desire of the employee himself. You must understand that contract service is equivalent to employment at another place of work. The timing of dismissal in this case is negotiated individually.
Employee does not come to work
If an employee who can leave for service does not show up for work, then he may have been sent to the army. He might not have had time to warn his superiors about his mandatory departure, or he might not have wanted to do it. In this situation, the following actions must be observed:
- The boss is obliged to mark the days that the employee missed without notifying management.
- If you suspect that an employee has been drafted into the army, you need to send a request to the military commissariat to which the employee is assigned.
- After receiving confirmation from the military registration and enlistment office, the company must draw up an order indicating 2 different dates. The first number is the acceptance of the order (the date when a positive response came from the commissariat). In the line with the date of dismissal, you must indicate the date when the employee last returned to his position.
Reviews
Dear readers, you can leave your review about the characteristic features of dismissal of an employee due to conscription in the comments, your opinion will be useful to other users of the site!
Basil
I quit because I was drafted into the army. I had to say goodbye to my place, and it wouldn’t even have been possible to evade it, since the employer was obliged to notify me against a personal signature. And so it happened. I served for a year, but they didn’t hire me back.
Artem
I had a question about the workplace. I was drafted into the army, I resigned, but agreed that after a year I would be returned to the same position. So I served, came to this company, and they told me that there are no places, the staff is staffed and they will not fire anyone from my place. It's a shame.
Severance pay article
According to Article No. 178 of the Labor Code of the Russian Federation, an employee of an institution or company is obliged to exercise his own right to receive severance pay. Its volume is equal to the average earnings of a citizen, which is calculated over 14 days.
The legality of the basis obliges the manager to make a final payment for the actual time worked. If the employee was not on paid leave this year, then he is entitled to compensation. The conscript employee must receive other monetary payments provided for in the agreement at the time of dismissal.
Labor Code of the Russian Federation, article No. 140. Payment terms upon dismissal
If the employment agreement is terminated, the payment of funds due to the employee from the manager is made on the day the employee is dismissed. If the manager did not carry out his work activities for certain reasons on the day of dismissal, then payments must be paid no later than the next day after the dismissed employee submits a request for payment.
In case of disputes about the amount of the amount that is due to the employee upon dismissal, the manager must pay the undisputed amount within the period of time specified in this article.
If the dismissed employee is not in the organization on the day of payment, his wages must be deposited. A notification is sent to your home address about the presence of amounts due at the organization's cash desk. The funds can be collected by a relative of the employee, however, for this purpose it is necessary to issue a power of attorney, which will be certified by a notary or by the unit commander.
Note! The manager does not have the right to demand that the employee return money for the vacation period used in advance before dismissal due to service in the army unit.
What documents can be obtained from the military registration and enlistment office?
Companies and the military registration and enlistment office exchange data about the employee’s work and military activities. The personnel officer may request information from the military commissariat in the following cases:
- When an employee provides a questionable subpoena
- An employee who is due to leave soon does not show up for work.
If the answer is positive, the manager must prepare a dismissal order, and if required by the commissariat, then notify him that labor relations with the conscript have been terminated.
Recording in labor
HR professionals in every organization are required to make correct records. At the time of dismissal, the documents read:
- date of departure of the employee;
- reference to the article of the Labor Code (clause No. 1 of Article No. 83);
- number and date of the internal order;
- signatures of the personnel employee and the conscript.
The company's management sends a notification letter to the military commissariat. It reflects information about the dismissal of a conscript. Only 2 weeks are given to provide the document.
Information
Dismissal of young people who left to serve often occurs in their absence. After all, they do not have enough free time to resolve all civil matters. But there are also conscripts who specifically do not come to the personnel department in order to be reinstated in the organization upon returning from service.
According to the law, the administration has the right to independently dismiss a conscript without his participation. The order states that all documentation was completed only by the employer.
Maintaining a job when conscripted into the army
This article describes in detail about maintaining a job when conscripted into the army, and everything you need to know about it. In fact, in every company there are young people in the service of an age when a summons to the army might come.
For this reason, employers have a responsibility to be aware of what they need to do when an employee is called into military service. Should he fire the employee? Can the worker retain his position? What kind of papers should be made?
Call for service
Persons from 18 to 27 years of age who are registered with the military and who are not in the reserve are eligible for conscription for military service. Persons who have been withdrawn from fulfilling military obligations, being called up for service, or persons who have been delayed in being called up for service will not be recruited for military service.
Dear readers! Our articles talk about ways to resolve legal issues, but each case is unique.
It must be said that, in accordance with the law, persons who are not in the reserves will be sent to serve several times a year, based on the order of the President of the Russian Federation.
As a special feature, other call deadlines will apply to the following persons:
- Which ones live in certain areas of the Far North or in some areas similar to areas of the Far North.
- Living in the village and working on sowing and harvesting work.
- Shown by teaching workers of educational organizations.
Calling up for military service persons who are not in the reserves includes:
- Attendance at medical research and recruitment committee meetings.
- Appearance at the time shown in the military commissariat agenda, as well as the place of serving military service and presence at the military commissariat before military service.
The call to serve in the military unit of the indicated persons is made by the commissariats through their units and by commissions, which are organized in districts, districts, cities and localities within the city by decision of the highest official of the constituent entity of the Russian Federation by order of the commissariat.
It is worth saying that for processes that involve a call for military service, persons are called up by documents of the commissariat of military significance.
Informing conscripts about appearing for medical research. The meeting of the council for conscription or for transfer to a military-type unit to serve service is carried out with the papers of the commissariat.
This is important to know: Age limit for conscription into the army
Submission of summons to conscripts against signature by employees of the commissariat or at the conscript’s place of work to owners, other official citizens of the companies, as practice shows, no later than three days before the deadline shown on the paper.
Compensation
In Art. 170 part 1 of the Labor Code of the Russian Federation, the boss is obliged to protect the employee from service by leaving behind him a vacancy for work for the period while he fulfills the obligations of the state or society in situations where, according to the Labor Code of the Russian Federation and other federal legislation, these obligations are required to be fulfilled during working hours .
Indeed, Part 1 of the federal law, persons for the period of medical research, examination or treatment to fulfill the tasks of conscription or independent transition to military service and, of course, for the period of fulfillment of their obligations combined with conscription or independent transition to military service, are released from work with leaving their place of work behind and paying them the usual wages at the place of work.
They also cover expenses combined with renting an apartment and paying for travel from the place of residence and back, and expenses for business trips.
How to fire a conscript
Art. 83 Part 1 Clause 1 states that when an employee is notified of service, the employment contract is immediately terminated. The basis for its termination in the presented case seems to be the summons shown to the workers for conscription into the army.
It must be said that the worker is not required to submit a letter of resignation, since the termination of the contract will be carried out according to provisions that do not depend in any way on the will of the parties.
Since the labor law does not have any definitions about the expiration date of an employment contract based on the terms associated with the employee’s conscription into the army, it is shown that this must take place no later than the time of appearance shown in the summons. It is worth saying that the day of expiration of the employment contract shows the employee’s most extreme day of work, for the omission of such situations when he in fact did not work, but his service actually remained under the Labor Code of the Russian Federation or another law.
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The end of the employment contract will be determined by the position of the boss according to a certain form.
On the day when the employment contract is terminated, the boss must give the employee a work book and calculate it in accordance with Art. 140 Labor Code of the Russian Federation. Besides everything else, indeed Art. 178 part 3 of the Labor Code of the Russian Federation, a worker in connection with a call-up to the army must be paid a severance allowance in the amount of his total earnings for two weeks.
In this article you learned about saving a job when conscripted into the army. If you have any questions or problems that require the participation of lawyers, then you can seek help from the specialists of the Sherlock information and legal portal. Just leave a request on our website and our lawyers will call you back.
Terms of dismissal
The law does not stipulate how long a conscript must terminate his contract with his superiors. Dismissal must take place no later than the date of dispatch to the military unit. The procedure usually takes about 3 days and includes:
issuance of an order- statement in the work book about the reason for dismissal
- cash payment calculation
The period for termination of an employment contract may be violated if the conscript late notified his superiors that he was subject to service. After receiving the information, the company administration must ask the military registration and enlistment office whether the employee is actually leaving his position legally. Then, in a short time, you need to prepare an order and pay the employee.
