The interaction between an employee and an employer is based on compliance with the spirit and letter of labor legislation, as well as related industries. Particular attention is paid to the process of ending interaction. Quite often a person does not want to be at work for the 14 days allotted for working off.
If an employee does not take a vacation, then exclusion from the company’s lists after the vacation is the optimal solution. Let's consider some aspects of care after leave at the employee's will.
Is it possible to quit after vacation?
From the point of view of legislation, namely Article 80 of the Labor Code, the priority is the issue of notifying the employer of the intention to terminate the employment agreement. At this time, the employee may perform his job duties or be absent from the enterprise, for example, on vacation or sick leave.
If the reason for absence is unexcused - absenteeism, then the employer can change the article under which the citizen is dismissed. The majority of employees must notify management 14 days before leaving work. If you have a vacation during this time, you can leave the organization immediately after the vacation.
For your information
If the reason for exclusion from the list of employees at the initiative of a citizen is the inability to continue labor interaction in connection with, for example, entering a university or reaching retirement age, then the organization must fire the employee within the time frame specified by him.
It should be remembered that working time may be reduced or absent if management does not need the employee’s services. In this case, dismissal is possible within 24 hours from the date of filing the relevant application.
For your information
The procedure for dismissal of military personnel serving under a contract has significant differences from the usual ones, therefore, if you want to terminate your service, you should be guided by the Federal Law “On Military Duty,” in particular, Article 51.
Is it possible to fire on the last day of vacation?
An employee has the opportunity to resign during vacation in two situations:
During a vacation, a subordinate decides to leave the organization. To do this, the resignation letter is handed over to the employer personally or addressed by registered notification letter. It is worth considering that the company will begin counting the two-week work period the next day after receiving the application. If the citizen calculates everything correctly, the last day of vacation will be the date of his dismissal and full payment:- When planning to leave the company, an employee wants to exercise his legal right to leave. To do this, you first need to reach an agreement with management. By agreement of the parties, payment of funds due and issuance of labor will be made on the last production day before the vacation.
At your own request
Inexperienced personnel officers may wonder whether it is possible to dismiss an employee on the last day of vacation at his own request. The Labor Code of the Russian Federation gives each employee the right to choose the date of leaving the company at his own discretion, notifying the manager two weeks in advance.
The most convenient way for an employee is to write two statements at once. One of them will be about leave, the second - a request for dismissal. Based on them, the organization will issue two orders.
If the applicant decides to retain his job, it will be easier to formalize this if there is a separate application for dismissal. If the date of dismissal falls on a weekend, the director has the right to involve responsible persons in fulfilling the duties of issuing documents and funds to the dismissed person during non-working hours.
At the initiative of the employer
Art. 81 of the Labor Code of the Russian Federation prohibits an employer from laying off an employee who is on any type of leave (annual paid, at his own expense, educational, maternity or child care).
Requirements of Art. 81 of the Labor Code of the Russian Federation do not apply if:
- the enterprise is liquidated;
- The individual entrepreneur has ceased its activities.
If an employee decides to resign before the end of his student leave, management has the right to withhold part of the previously paid funds.
Practice shows that an organization, guided by the recommendations of Rostrud, can refuse to dismiss a subordinate immediately after a vacation at its own expense and not let him go without working out.
Dismissal procedure
As mentioned above, if you want to stop working at the enterprise, the employee is required to write a letter of resignation and submit it to the personnel service or manager. The working time begins from the moment the application is registered. Thus, if there is a possibility of losing the application, the document can be sent by registered mail with a list of attachments and delivery notification. In this case, the counting day will be the date following the date of delivery of the letter.
If the organization keeps records of incoming documents, then it is recommended to write the application in two copies: the first copy is given to the secretary for further processing, and the second copy, which remains with the employee, is marked with the date and number of the incoming document.
When writing, you must indicate:
- In whose name it is written (the head of the company or structural unit in which the citizen works);
- From whom (name of the applicant and his position);
- Subject of appeal (please exclude at your own discretion);
- Preferential grounds that exempt or reduce the time of service (entry to a university, retirement for a well-deserved retirement in old age, etc.), if available.
- End date of interaction;
- Date of application, signature of the worker.
For your information
When dismissing at the will of a citizen, he has the right not to give reasons for leaving.
A citizen must remember that providing leave before leaving the company is not the duty of the enterprise. The organization may refuse leave by paying compensation for unused time off during care. At the same time, the person must continue to perform labor duties under the contract.
For an employee who wants to leave the employer after the next vacation, it is not of fundamental importance whether the application was written before the vacation or the decision was made and stated during the next vacation, but not later than the time established by law for working out. From the point of view of personnel records management and accounting, there is a difference. The differences relate to the moment of financial calculations and the issuance of a work book, as well as the drawing up of a dismissal order.
The organization is obliged to make payments on the last day of cooperation. Then the work book is handed over. This is directly stated in Government Decree No. 225, as amended on March 25, 2013 and Art. 140 Labor Code of the Russian Federation. If an employee has expressed his desire to resign before the vacation, the organization pays vacation pay 3 days before the vacation, and an order is issued to send him on vacation with subsequent dismissal. The final payment and transfer of the completed work book occurs on the last working day before the vacation.
If a citizen expresses his will to resign, expressed on vacation, a dismissal order is issued within the period established by law. If the employee does not appear in person for labor and financial payments (if any) on the day of exclusion from the company’s lists, then the organization sends a registered letter informing of the need to obtain a work book or allow it to be sent by mail.
The dismissal order is drawn up on the basis of the standard T-8 form. It reflects who is being dismissed and from what position, the reason, the date of termination of the employment relationship, and other necessary data (for example, the availability of preferential grounds). The expelled citizen must be familiarized with the issued order in writing.
For your information
Upon dismissal, in addition to the work record book, the employee is issued a certificate in Form 2 of personal income tax, a document on income for the last 2 years, subject to work in this organization, certificates containing information about transfers to the pension fund. At the request of a citizen, he may be provided with other documents relating to his work activity.
Application for leave and dismissal
In one of the previous articles, we examined the issue of the need to draw up a vacation application and came to the conclusion that it is necessary to write it if the vacation schedule has not been approved. But this applies to cases when an employee plans to return to work after vacation. If leave is taken before dismissal, it is necessary to take an application from the employee . This is directly stated in Article 127 of the Labor Code.
So, the employee must write an application addressed to the manager, in which he sets out his request for leave from a certain date . The application must also indicate that the leave is taken before dismissal of one's own free will . The application form is not regulated, but you can use the following example:
How to resign of your own free will after maternity leave
At the current legislative level, there is no concept of “maternity leave”. This definition arose and became entrenched in the public consciousness after the adoption in 1917 of the Decree establishing the right of women to receive benefits for a certain period before and after childbirth. Currently, maternity leave at the household level is understood as a set of leaves for pregnancy and childbirth, for caring for a child up to one and a half years old, and for caring for a child up to three years old.
There is a direct prohibition on dismissing an employee who is on maternity or child care leave, except in exceptional circumstances. The restriction does not apply to the citizen’s own desire to end the relationship.
The procedure for dismissing an employee on maternity leave does not differ from the generally accepted one. When a resignation letter is written and submitted to the personnel service at least 14 days before leaving leave, the employee does not need to begin performing his job duties.
Read more: “Resign after maternity leave.”
How to leave an organization without work
When submitting a letter of resignation after returning from vacation, you can resign without working for several reasons:
- By agreement with management. If the company does not need the services of a citizen, then the work may not be assigned.
- If the employer violates labor laws.
- If there are compelling reasons. Deteriorating health, a spouse's long business trip associated with a family move, and other reasons can lead to a quick dismissal. The employer may require supporting documents.
- Certain benefits are provided for pregnant women and parents of large families.
The legislative basis for interaction when setting a working period is primarily Art. 80 Labor Code of the Russian Federation.
Can an employee change his mind?
Russian legislation leaves the employee the right to change his own decision to leave. But in order for the employer to agree with this, the following deadlines must be met:
- According to the rules of Article 80 of the Labor Code of the Russian Federation , a written application can be withdrawn before the end of the notice period, even if during this period the employee is on vacation;
- If the registration is carried out in accordance with norm 127 of the Labor Code of the Russian Federation , the application must be withdrawn before the first day of vacation; a later application will not be taken into account by the employer.
Expert opinion
Polyakov Pyotr Borisovich
Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.
If the employee’s decision took management by surprise, then this is not a reason to prevent him from leaving or recall him from leave. Any such attempt will be regarded as illegal, unless, of course, there is the written consent of the employee himself, Art. 125 Labor Code of the Russian Federation.
A change in the decision to dismiss must be reflected on paper; without a written response, it will be impossible to prove your position.
Payments
Since the termination of labor interactions at the will of the employee is a positive reason, he is entitled to all payments:
- Salary calculated per day of care;
- Reimbursement for unused vacation time (if any);
- Bonuses and incentive payments provided for in the employment contract.
If a citizen has used vacation without working the required period, deductions will be made to him upon final payment. The procedure and terms of calculation are regulated by Art. 140 Labor Code of the Russian Federation.
Payments can be made in cash through the company's cash desk or by transfer to a citizen's salary card. It is not allowed to transfer wages to a card registered to a third party, even with a written application from the dismissed employee.
For other reasons
These include:
- expiration of the temporary contract or departure of the main employee;
- termination of the contract due to exceptional circumstances (for example, complete disability of the employee).
If the contract expires, the employer notifies the employee 3 days in advance (Article 79 of the Labor Code of the Russian Federation), while when the main employee returns, the temporary one can be notified 1 day in advance, having studied the Order of his dismissal.
Dismissal due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation) is formalized within one day.
Registration of a work book
The Labor Code, although it operates with the concept of “work book,” does not regulate in detail the procedure and rules for registration. When working with this document, you should rely on Government Decree No. 225 of 2003 and the Ministry of Labor No. 69, issued in the same year.
The notice of dismissal must contain the following information:
| No. | Information |
| 1 | Record serial number |
| 2 | Date of dismissal |
| 3 | The fact of termination of the employment agreement and its basis |
| 4 | Details of the order to exclude a citizen |
| 5 | Signature of an authorized person, sealed with the organization's seal |
The fact that a person is on leave before dismissal can be detected if you pay attention to the dates of the order and dismissal. If they coincide or differ by several days, it can be said with a high degree of probability that the person was at work until the last day. If there is a significant difference in dates, it is likely that the citizen was on vacation before his dismissal.
Example
Date of dismissal: 06/01/2018
Text of the entry: The employment contract was terminated at the initiative of the employee, paragraph 3 of Article 77 of the Labor Code of the Russian Federation.
HR specialist: Moshkarova A.S.
Introduced by: Zakirov R.U.
Information about the order: Order No. 55-l dated May 15, 2018
When preparing a work permit, you cannot use abbreviations and abbreviated names; registration is done in water- and light-resistant ink in black, purple or blue.
For your information
If an error is made during registration, it is prohibited to correct it by applying a corrective agent. An additional entry is made indicating the error.
Who can take advantage of this opportunity
Going on vacation and resigning immediately after it ends is, in fact, very convenient, but it is worth mentioning that not every employee can do this. The fact is that only those employees who quit not because of a violation of the Labor Code of the Russian Federation or other local documents of the organization can resign in this way.
So, among the violations that can lead to dismissal are the following:
- When applying for a job and signing an employment contract, the employee used or provided the HR department with invalid or counterfeit documents;
- Violation of work discipline, non-fulfillment or incomplete fulfillment of work duties, violation of labor regulations, etc.;
- Absenteeism without warning, frequent tardiness, which affects the overall performance of the employee;
- Also, if an employee comes to work in a state of intoxication, either alcohol, drugs, or any other state, which does not allow the employee to adequately perform his duties;
- If we are talking about an organization or position that involves cooperation with a trade secret, official or state secret, then the employee is accordingly obliged not to disclose such information, about which the person signs the relevant documents when applying for a job. If this secret is violated, that is, it is disclosed, the employee is also deprived of the opportunity to take advantage of such dismissal;
- Theft, embezzlement or intentional damage to property in the workplace;
- Actions on the part of the employee that led to an emergency event at the enterprise or to an accident, as well as entailing a serious threat of the occurrence of such cases;
- And finally, poor quality work or immoral behavior of the employee, which leads to the desire of the employer himself to dismiss, that is, dismissal does not fall into the category of “at will.”
This is important to know: Annual paid additional leave in the report card: designation
It turns out that if you are an exemplary employee, and your bosses have no complaints about the quality of your work and compliance with the work schedule, then you can go on vacation without any obstacles before you quit, thereby replacing your work off.
