Can the date of the dismissal order be earlier than the dismissal date?

Order for a dismissed employee: general provisions and procedure for drawing up

An order is an order from the company’s management, drawn up in writing. One of the types of such documents is a dismissal order. It can be drawn up either in any form or in form No. T-8, which is approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1.

The legislator does not exclude the possibility of approving his order form in a specific organization. In this case, it is recommended to include all the information contained in Form No. T-8.

The order may contain the following information:

Company name.
The date of its compilation.
FULL NAME. employee, the unit in which he performed duties, his personnel number.
The date on which the employee will be terminated.
Grounds for dismissal and a link to the article of the Labor Code of the Russian Federation under which the worker is fired.
A link to the documents that served as the basis for dismissal, for example, a statement from the employee.
Signatures of the manager and employee (that he has read the document).

When and how is a dismissal order drawn up?

An order is the employer’s main document for terminating an employment contract (EA) with an employee. The document is drawn up on a unified form according to f. T-8 or on your own. If the company develops the form independently, it is required to approve the form in the document flow schedule.

The order (order) for dismissal is filled out in accordance with the regulatory basis (reason) for termination of the trade union. In this case, such a basis must be documented. For example, if an employee leaves of his own free will, an application addressed to the employer is drawn up. If the employment relationship is terminated by mutual consent of the parties, a written agreement is signed. But in any situation, regardless of the regulatory basis, the employer is obliged to issue an order.

According to general rules, the date of the order and the date of dismissal coincide. But sometimes the date of the dismissal order is earlier than the date of dismissal and this is not considered a violation. Why? More details below.

What date (what date) is it optimal to sign the dismissal order when it is issued?

As a rule, the order is issued and signed on the date of dismissal. In this case, there are no nuances when issuing the document; the procedure is standard.

After drawing up and signing the order and familiarizing the worker with its contents, a number of necessary actions are carried out. In particular, according to Art. 140 of the Labor Code of the Russian Federation, the calculation is carried out, the worker is given the necessary documents (work book, copies of documents at the request of the worker, calculation, etc.)

However, the order is not always issued immediately at the time of dismissal. It may be published earlier or later. Let's consider in what situations this is possible.

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Canceling an order

If the document was issued on a previous date, it may be cancelled.
This happens in cases where the grounds for termination of legal relations cease to exist. For example, an employee changed his mind about quitting and withdrew his application. Another common situation is the restoration of an employee’s rights. Based on a number of provisions prescribed in Art. Art. 129 and 234 Labor Code, as well as Art. 106 Federal Law “On Enforcement Proceedings”, the restoration procedure is carried out by canceling the previous document. If the issued document was not canceled before the specified date inclusive, it will terminate the employee’s work activity, with the exception of situations provided for by the Labor Code and other regulations. As a general rule, on the last working day the employee receives a work book and other required documents , as well as a payment, including compensation for unused vacation.

If the employee or worker was absent on the last day, he must submit an application to make the calculation. Then all payments due must be made on the same or the next business day.

Is it possible that the date of drawing up the order is later or earlier than the day of dismissal?

As already mentioned, the law does not contain restrictions regarding the date of drawing up the order. In particular, it can be issued before the date of dismissal, in advance. In this case, the future date of dismissal of the employee is entered, upon which the administrative document will begin to take effect.

Example. Sidorov V.G. submitted an application on March 12, 2021, in which he expressed a desire to resign. In the document, he indicated the date of the last day of service - March 27, 2021. The employer issued an order that Sidorov V.G. will be dismissed on the day the application is received - March 12, 2021. At the same time, the dismissal date was set for March 27, 2021. Thus, when March 27, 2021 arrived, the order began to take effect and Sidorov V.G. was fired.

Important! Although the order can be issued before the employee is dismissed, the best option is to issue it on the day of dismissal. This is due to the fact that after drawing up the order, the worker has the opportunity to withdraw the application. In this case, the employer will have to cancel the administrative document.

The only case when an order is issued after the date of dismissal (termination of the contract with the employee) is the death of the employee, which the employer did not know about.

What date should the order be dated?

If you carefully study the provisions of stat. 84.1 of the Labor Code, it becomes clear that the generally accepted normative procedure for terminating a contract with personnel implies the mandatory drawing up of an order from the manager. The contents of the order are communicated to the specialist against his personal signature. At the request of an individual, the personnel officer is obliged to give him a copy of the document, duly certified. If an employee refuses to sign an order for various reasons, a corresponding entry is made on the form.

However, neither the Labor Code of the Russian Federation nor other legislative acts say what date the order should be generated. Since this document reflects information about the employer, about the employee, as well as about the moment of termination of the TD, we can conclude that the date of drawing up the order is not important. The main thing is to correctly indicate the day of termination of the contract. Subsequently, on the basis of the order, an entry is made about the employee’s length of service in his work book and a calculation is calculated.

When is payment made for a dismissed employee?

By virtue of Part 1 of Art. 140 of the Labor Code of the Russian Federation, the worker must be paid on the day of dismissal. If the employee is not present at work, the calculation is made within one day from the moment the employee submits a request for the need to prepare it.

***

Thus, the dates of the order and dismissal most often coincide, but there may be situations listed in the publication when the dates may not correspond to each other. To avoid the need to cancel a pre-issued order, it is better to issue it directly on the day when the relationship with the worker ends.

Rules for issuing an order

The order can be drawn up in any form or according to a standard template developed by Goskomstat. The order is a key document regulating the procedure for terminating a contract with an employee. On its basis, accruals are made for the final payment of an individual and a work book is drawn up.

The structure of the document must provide fields for the following information:

company name;
number of the order and date of its issue;
content - the essence of the regulated procedure, the reasons for termination of the contract (indicating the details of this agreement), a link to the article of the Labor Code of the Russian Federation, information about the employee from his personal card, the date of dismissal.

The document is certified by the handwritten signature of the head of the organization. If the company has a seal, its imprint must be affixed to the form. After registering the order in the journal of issued orders, the dismissed employee must be familiarized with the text of the document.

The fact of reading is recorded by the signature of the specialist leaving the position. If the order concerns several employees, each of them must sign at the bottom of the sheet on which the order is printed.

Grounds for issuing an order to terminate an employment contract

Termination of labor relations is possible at the request of the worker, at the insistence of the employer (absenteeism, failure to fulfill duties, etc.), in the presence of mutual consent, as well as due to circumstances that do not depend on the parties (conscription, death, conviction, etc.).

Organizational administrative acts are issued on the basis of any documents: an employee’s personal statement, an act of absence from work, an act of committing a disciplinary offense, a summons for conscription, a court verdict, etc.

How many days does this document take to publish?

The deadline for issuing a dismissal order is not established by law. This may occur earlier or later than the actual dismissal. Therefore, the personnel officer can begin preparing the document both immediately after the grounds arise (for example, during absenteeism) and on the day of dismissal. Therefore, it does not matter what date it will be indicated . They may not match.

The video provides a list of general grounds for signing an order to terminate an employment contract, in accordance with Art. 77 Labor Code of the Russian Federation:

Dismissal at your own request

According to the Labor Code, an employee who wishes to terminate an employment contract must notify the employer at least 2 weeks in advance (Article 80 of the Labor Code of the Russian Federation). Thus, from the moment the application is written to the actual dismissal, 14 days usually pass. In this regard, questions arise:

what date and how exactly to write in the resignation letter;
from what date should the period of so-called working off be counted?

When a person writes a statement about terminating an employment contract at his own request, it is usually required to indicate the last working day.
The law is not clear on the exact wording, but it is recommended not to use the preposition "with". It is advisable that the phrase read “I ask you to fire me of your own free will on January 20,” and not “from January 20.” The latter option allows for double interpretation, confuses the personnel officer and may raise questions among inspectors. The interval between filing an application and dismissal is counted in calendar days. In this case, the reference date is not the date when the application was written, but the next day. For example, if an employee wrote a statement on December 1, then the last working day will be December 15. It does not matter how many weekends and holidays there are during this period. However, if this date falls on a non-working day, then the dismissal is formalized on the next working day. Thus, if December 15 falls on a Sunday, then the work book will contain an entry dated December 16 (Article 14 of the Labor Code of the Russian Federation).

Article 14 of the Labor Code of the Russian Federation - Calculation of deadlines

The period of time with which this Code relates the emergence of labor rights and obligations begins from the calendar date that determines the beginning of the occurrence of these rights and obligations.
The period of time with which this Code relates to the termination of labor rights and obligations begins the next day after the calendar date that determines the end of the employment relationship. Terms calculated in years, months, weeks expire on the corresponding date of the last year, month or week of the term. The period calculated in calendar weeks or days also includes non-working days.

If the last day of the period falls on a non-working day, then the end of the period is considered to be the next working day following it.

Expert commentary

Kamensky Yuri

Lawyer

This rule only applies if a person works on a standard 5/2 schedule. If he works in shifts, then the date of dismissal will in any case coincide with the last working day, even if it falls on a holiday or calendar day off (Rostrud Letter dated 06/18/12). On the same day, it is required to issue the employee a work book and salary, including all benefits and compensation. If necessary, the head of the organization brings an accountant and a personnel officer to work so that they formalize the dismissal. In return, they are provided with compensation provided for by the Labor Code (double pay or an additional day of rest).

Everything about filling out an order for termination of an employment contract using the sample: recommendations for execution

One of the documents that employees of an organization's personnel department regularly fill out is a dismissal order.

An order to terminate an employment contract is confirmation of the termination of the employment relationship .

This document must correctly include information about the reasons for dismissal and about the employee.

Our article will help you understand this issue in more detail.

How many days in advance must a dismissal order be made?

Questions and answers on the topic

Good afternoon, tell me, an employee wrote a resignation letter 2 weeks in advance, how many days in advance do you need to submit a resignation order?

Current legislation does not regulate this issue. It can be regulated in your local acts. In any case, the order must be prepared within such a period of time that will allow the accounting department to calculate all payments due to the employee upon dismissal.

Accounting makes calculations on the basis of form N T-61 “Note-calculation upon termination (termination) of an employment contract with an employee (dismissal). In the column the basis of the named document, the order https://1kadry.ru/ is indicated

Instructions for filling out this form: https://1kadry.ru/

From which it follows that the order must already be signed before the calculation of the amounts due to the employee upon dismissal begins. At the same time, the legislator does not determine what the gap may be in the dates of issuing the order and, in fact, the dismissal of the employee. It seems that this should be determined by the accounting policy of your organization. The gap can be insignificant 1-2 days or large, it all depends on your corporate policy and the time it takes the accounting department to pay the employee.

Contents and design of the document

An order in the established form T-8 is an internal document drawn up upon termination of an open-ended employment contract or at the end of the stipulated period. If an employee resigns on his own initiative, the basis for drawing up documentation is a statement drawn up and signed by the resigning person.

This is important to know: Example of an application for voluntary resignation: sample 2021

According to established practice, the number indicated on the form will be the last working day of the resigning person . Guided by this document, the responsible person writes in the work book that the employee is fired, with the obligatory indication of the reason, month, date and year. But there are exceptions when the date of the dismissal order and the date of dismissal may not coincide. This circumstance alone is not enough to speak of a violation of the law, although many citizens think otherwise.

Until January 1, 2013, T-8 forms were filled out and issued in accordance with the approved resolution of the State Statistics Committee. It is called “On approval of document forms” and was published on January 5, 2004. Since this act was abolished, T-8 forms have ceased to be mandatory. In particular, a dismissal order can be issued before the day of dismissal , and sometimes the head of the company is obliged to do this.

Currently, enterprises are not required to use unified forms, but have the right to develop their own, as well as create documentation in free form. However, there is a list of information that must be present:

name of the company, institution or individual entrepreneur;
the basis on which the worker or employee is considered dismissed, indicating Art. TK;
Full name and position of the employee;
signature of an authorized person or director;
signature of the person who is about to resign;
date of preparation and document number.

The name and legal status of the employer is usually indicated at the top of the document. Here, the HR department employee puts down the date and serial number. The number of the employment contract and the date of its preparation are indicated below in a special line. It also contains information about the termination or termination of the contract.

Information about an employee is usually written out from his personal card. In addition to the full name and position, the contract may indicate the number assigned to the employee on the timesheet and the department in which he worked. The reason for termination of the employment relationship is stated in the “Grounds” column. The employee is required to sign the completed form, unless this is impossible. If he does not want to sign, the employer draws up an act of refusal.

Date of dismissal in difficult situations

The employee can indicate the desired date of dismissal, which occurs earlier than two weeks after the application, go on vacation with subsequent dismissal, quit during illness or on a day off. In these situations, the termination date and termination date will be determined differently.

The day of termination of the employment contract in all cases is the employee’s last day of work, with the exception of cases where the employee did not actually work, but, in accordance with the Labor Code of the Russian Federation or other federal law, retained his place of work (Article 84.1 of the Labor Code of the Russian Federation). When terminating an employment contract at the initiative of the employer, it is impossible to dismiss the employee during the period of his temporary incapacity for work or while on vacation. Exceptions are the liquidation of an organization or termination of activities by an individual entrepreneur (Part 6 of Article 81 of the Labor Code of the Russian Federation) or the case of termination of a fixed-term employment contract due to its expiration.

IMPORTANT IN WORK
All grounds for termination of an employment contract are enshrined in Art. 77 Labor Code of the Russian Federation.

If an employee resigns of his own free will, he is obliged to notify the employer in writing no later than two weeks in advance, unless the employee has valid reasons according to the Labor Code of the Russian Federation. In this case, the specified period begins the next day after the employer receives the employee’s resignation letter. A dismissal situation is possible even before the expiration of two weeks, if an agreement is reached between the employee and the employer. An employee may withdraw a notice of dismissal before the expiration of the notice period unless another employee is invited in his place in writing, who, in accordance with the Labor Code of the Russian Federation and other federal laws, cannot be denied an employment contract. Regulatory documents do not establish rules for filing a resignation letter, and in this regard, various conflicts may arise between the employee and the employer.

ORIGINAL SOURCE
If both parties agree, it is possible to terminate the employment contract before the expiration of the notice period.
Part 2 Art. 80 Labor Code of the Russian Federation.

Example 1.

The employee submits an application in which he does not indicate the date of dismissal, but only the date of writing the application. In such a situation, the employee is considered to express his intention to work for another two weeks. He cannot be fired before this period unless an agreement is reached between him and the employer.

IMPORTANT IN WORK
On the last day of work, the employer is obliged, upon a written application from the employee, to issue the employee a work book and other documents related to the work, as well as make final payments to him.

Example 2.

The employee indicates in the application the date of dismissal, which is less than two weeks away. The employee has no valid reasons. In this case, the employer may refuse and not agree on the employee’s dismissal on the day he requests. At the same time, the employer cannot independently change the date so that the date of dismissal falls within two weeks after submitting the application.

Example 3.

Let's take example 2 as a basis and assume that the employee insists on this date, and upon its arrival does not go to work, despite the objections of the manager. In this case, the employee’s statement will not have legal force. And if the employee does not go to work, then it will not be a question of dismissal of his own free will, but of the dismissal of the employee, for example, for absenteeism.

See diagram on page 99.

GOOD TO KNOW
For an employee seeking to terminate the employment contract in any case, it makes sense to indicate in the application, in addition to the desired date of dismissal, that if early dismissal is not possible, he asks to be dismissed on the day the minimum notice period expires. If not immediately in the application, then in any other way it is worth bringing to the attention of the employer that the employee insists on early dismissal.

A resignation letter can be written by an employee during a period of vacation or temporary disability. In this case, two weeks begin to count as usual. Also, the Labor Code of the Russian Federation does not prohibit filing a resignation letter of one’s own free will in any form, including by sending it by mail or fax. In this case, the countdown of the two-week period begins the next day after the employer receives a letter of resignation from the employee (Part 1 of Article 80 of the Labor Code of the Russian Federation).

Termination of an employment contract is formalized by order (instruction) of the employer.

The employee must be familiarized with the order (instruction) of the employer to terminate the employment contract against signature. In the event that an order (instruction) to terminate an employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it against signature, a corresponding entry is made on the order (instruction).

If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book.

Vacation followed by dismissal

In relation to this situation, the Labor Code of the Russian Federation distinguishes between such concepts as “last day of work” and “day of dismissal”. If the vacation involves subsequent dismissal, the last day of work will be considered the day preceding the first day of vacation, and the day of dismissal will be the last day of vacation.

GOOD TO KNOW
Severance compensation is paid regardless of the reason for the employee's dismissal and must be paid to the employee for all unused vacation time. Upon dismissal, an employee has the right to refuse compensation for unused vacation and take off allotted vacation days.

Therefore, all settlements with the employee are made before going on vacation, since at the end of it the parties will no longer be bound by labor relations. The same should be done with the work book and other documents related to work activities, which the employer is obliged to provide to the employee. They must be issued before the resigning employee goes on vacation, that is, on the last working day.

A special case is when an employee went on vacation with subsequent dismissal and the day of dismissal falls on a Sunday. In such a situation, the day of dismissal is considered the last day of vacation. Labor legislation does not establish a ban on dismissing an employee on a day off (Sunday).

Dismissal of an employee during a period of temporary incapacity for work

In this case, sick leave must be paid in full. The amount of temporary disability benefits depends on the employee’s insurance length and his salary in accordance with Law No. 255-FZ of December 29, 2006. As for the dismissal procedure, let’s look at it using an example.

Example 4.

On June 11, 2014, the employee wrote a letter of resignation effective June 25, 2014. On June 19, he went on sick leave, which lasted until June 28.

Actions of the organization: if on June 25 the employee did not appear at the organization and did not withdraw his application for dismissal, then an entry about dismissal is made in the work book on June 25 - the date of dismissal according to his application. On the same day, the employee is sent a notification that he has been dismissed according to his application and he is asked to appear to receive a work book and payment to the organization or give written consent to send it by mail (Article 84.1 of the Labor Code of the Russian Federation), as well as indicate details for transferring money funds (calculation).

IMPORTANT IN WORK
The Labor Code of the Russian Federation does not contain the concept of “abuse of law”. According to the Civil Code of the Russian Federation, abuse of rights is prohibited (clause 1 of Article 10 of the Civil Code of the Russian Federation), but civil law norms are not applicable to labor relations.

Dismissal of an employee who is on vacation with subsequent dismissal and issuing sick leave

In such a situation, unused leave is not extended and the end date of the employment relationship is not changed, since this is a special way of providing leave. During the period of temporary disability, the organization only needs to pay the employee benefits. He is not entitled to additional payment for days of rest that were not used due to illness, since all calculations were made and work documents were given before the start of the vacation with subsequent dismissal.

GOOD TO KNOW
As for the calculation of vacation pay upon dismissal while on vacation, Art. 137 of the Labor Code of the Russian Federation provides for cases in which deductions can be made from an employee’s salary. Thus, according to this rule, if an employee has already received annual leave for the current year and decided to quit in the same year, then the unworked vacation days must be compensated to the employer from the employee’s salary.

The employee is dismissed on a day off

Such situations are possible when working on sliding schedules.

Example 5.

The employee works on a 7/7 schedule, i.e. Saturday and Sunday are working days. The day of dismissal falls on Sunday. What is the date to fire an employee if the HR and accounting departments are closed on that day?

The day of termination of the employment contract in all cases is the employee’s last day of work. This is the date on which the documents are drawn up. The employee must work on this day, and on this day he must receive payment. The head of the organization must ensure compliance with the requirements of the law. For example, call an employee of the HR department and an accountant in accordance with the Labor Code of the Russian Federation to work on their day off.

IMPORTANT IN WORK
The date of the dismissal order for long absenteeism should be the date of its actual issue, but the date of dismissal should be the last day of work of the employee, except for cases where the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal law, his place of work was retained (job title).

On the day of dismissal, after the work book was issued, the employee withdrew his application

Example 6.

The employee wrote a letter of resignation of his own free will. On the morning of the last working day, he was given a completed work book, a payment was made, and by the end of the working day the employee withdrew his resignation letter on the basis of Art. 127 Labor Code of the Russian Federation.

In this case, there is no dismissal. It is necessary to issue an order to cancel the dismissal order. And on the basis of this document, invalidate the entry in the work book.

Dismissal of pregnant women in cases where the fixed-term employment contract ended during the period of maternity leave

In this case, the employer is obliged, upon written application and upon provision of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of pregnancy.

IMPORTANT IN WORK
Employees with whom an employment contract has been concluded for a period of up to two months are not paid upon dismissal. The Labor Code provides additional guarantees for the head of the organization, his deputies and the chief accountant in the event of dismissal for special reasons.

A woman whose employment contract has been extended until the end of her pregnancy is obliged, at the request of the employer, but not more than once every 3 months, to submit a medical certificate confirming the state of pregnancy. If the woman actually continues to work after the end of her pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day the employer learned or should have learned about the end of the pregnancy.

Dismissal due to disability

Example 7.

The employee was on sick leave until June 16, 2014. On June 17, he was sent to ITU. An ITU certificate indicating that this employee was assigned a non-working disability group as of June 17 was issued only on June 29. On what date should an employee be fired?

If the employee has submitted such a certificate, then he must be dismissed in connection with recognition as completely incapable of working (Article 83 of the Labor Code of the Russian Federation). But on what date should an employee recognized as disabled be fired?

On the one hand, the employee did not work from June 17 to June 29. On the other hand, there are no grounds for his dismissal during this period (until the 29th), since he was examined at a medical institution. At the same time, it is impossible to terminate the employment contract in connection with his recognition as completely disabled, since the medical certificate confirming the disability was issued only on the 29th. You can’t fire someone retroactively either. Thus, it is better to use a compromise option. Dismiss on June 29, and take leave without pay for the period from June 17 to June 29.

GOOD TO KNOW
Sending an employee a warning about upcoming dismissal due to staff reduction is not considered by law to be the basis on which an employee has the right to demand annual paid leave at a time convenient for him.

Features of filling out the document

There is a single form for filling out an order to terminate an employment contract - T-8 , enshrined in Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1. You need to fill in the form with the following information:

name of company;
registration number and date;
Name;
details of the employment contract;
date of dismissal (that is, what number should it be);
FULL NAME. employee;
Personnel Number;
structural subdivision;
job title;
basis for issuing the act (reason);
details of the paper that is the basis for issuing the act;
signature of the manager with transcript;
signature of the employee and date of familiarization with the order;
information on consideration of the issue of dismissal by the trade union body.

Most of the points do not require any explanation, but I would like to draw attention to a number of points.

Grounds for issuing the act (reason). When entering this information, you must strictly follow the norms of the Labor Code, and also indicate the article number.

Is it possible to issue a dismissal order before the dismissal date?