What is the date to formalize the dismissal of an employee after sick leave?

27.08.2019

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4 min.

Termination of an employment agreement can occur for various reasons. If we are talking about an initiative on the part of an employee, then the employer has the right to oblige the employee to work for two weeks. This period is required by management to find a replacement for the departing specialist. Let's consider how the situation is resolved if this period of time falls on sick leave.

At the initiative of the employer

The last day of sick leave includes the period when a person is temporarily incapacitated. In this regard, dismissal at the initiative of the employer is considered illegal. There are a number of exceptions when the procedure for terminating a contract with a person on sick leave is completely legal:

• employee ignoring job descriptions;
• during the liquidation procedure of a branch or office of a company;
• upon complete liquidation of the organization;
• if the validity period of a previously concluded contract has expired.

It is important to know!
It is prohibited by law to dismiss an employee who is on sick leave due to staff reduction. However, the procedure for terminating an employment contract can be carried out if the employee is on sick leave due to the need to care for a sick relative or a newborn child. In this case, dismissal is carried out according to the standard procedure. In addition, there are a number of circumstances beyond the control of the parties that may allow the employer to terminate the contract with the employee on the last day of incapacity:

• the need for compulsory military service;
• detention or arrest of an employee;
• if the employment contract was not renewed or the person was not re-selected to his previously held position.

In other cases, the employer will be forced to wait until the sick leave is closed and the employee returns to work. Only after this will it be possible to send notice of the upcoming termination of the employment agreement.

If the employer, for some reason, fired the employee on the last day of sick leave, the former employee can go to court and demand reinstatement and payment of moral compensation if it is proven that the director’s unlawful actions had a detrimental effect on him. In addition, the court has the right to apply penalties to the organization, the amount of which depends on the degree of violation and can range from 30 to 50 thousand rubles.

Read on the topic: The procedure for dismissing employees in the event of bankruptcy of an organization

Is it possible to open the BC of your own accord before leaving?

For health reasons, you can issue a certificate of incapacity for work at any time : before filing an application, during the period of dismissal and after the end of the employment relationship. In any case, the due temporary disability benefit will be paid.

The specifics depend on whose initiative the employment contract is terminated. If an employee wants to resign himself, he can resign directly during illness. The Labor Code obliges the employee to notify the employer of his intention to terminate the relationship two weeks in advance (Article 80 of the Labor Code of the Russian Federation). During this period, the employee may be on a business trip, vacation or sick leave.

Physical absence from the workplace for a valid reason does not in any way affect the right to quit . If an employer wants to fire an employee while sick leave is open, this cannot be done. Some employees try to prevent the situation by filing sick leave on the day the dismissal order is issued. But this will only delay the date of termination of the employment relationship.

If you hide the fact of issuing sick leave from your employer in order to later be reinstated through the courts, you will not be able to regain your job. Judicial practice in such cases considers such actions as abuse of rights (clause 27 of the PPVS dated March 17, 2004 No. 2).

The law does not directly oblige the employee to notify the employer about the opening of sick leave , but concealing such a fact upon severing the employment relationship may be regarded as an unfair act.

Of course, if the application to a medical institution occurred after the calculation and issuance of the work book, then there is no fact of abuse of rights in this situation. The same is true if the employee informed any representative of the administration (personnel officer, secretary) that he went to the ballot due to temporary disability.

Expert opinion

Novikov Oleg Tarasovich

Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.

If the certificate of incapacity for work appears only in court, although it was issued on the day of dismissal, no one except the employee even suspected about it, such an action may be regarded as an abuse of right. There will be no talk of any reinstatement.

You must apply for payment within six months after recovery and before starting a new job (Article 5 of Federal Law No. 255-FZ of December 29, 2006). Thus, an employee can go on sick leave after submitting a letter of resignation or reading an order stating that he is fired. The main thing is to warn the employer about seeing a doctor.

At the initiative of the employee

The law allows an employee to resign of his own free will at any time, even during a period of temporary loss of opportunity to work. In order for the dismissal procedure to be completely legal, a person must notify the manager of his intention in advance. To do this, you need to submit an application to the HR department or manager two weeks before the desired date of termination of the employment agreement.

There is no single document template established at the legislative level, which allows an employee to draw it up in any form. The application can be submitted in printed or handwritten form on A4 sheet. When handwriting an application, you must use a pen with blue or black ink. The application itself must contain the following information:

• about the exact name of the organization;
• about the position and full name of the person in whose name the application is being drawn up. Most often, the information of the director of the organization is indicated;
• about the position (if necessary, structural unit) and full name of the person submitting the application;
• about the name of the document – ​​“Application”;
• on a request to terminate the employment contract at the request of the employee. This paragraph requires you to indicate the desired date of dismissal.

It is important to know! It is recommended that the date of dismissal be entered without the preposition “from”, since if it is present, the specified date will be considered the last working day. For example, if an employee asks to resign on his own on May 20, then May 19 is considered the last working day. If the text of the document states dismissal on May 20, then this day is the last working day.

At the end of the document you must put the date of its preparation and signature. If for some reason a person did not indicate the date of dismissal in the text of the application, then the 14 days will be counted from the date the document was written.

Sample letter of resignation at own request

You can submit the application to the responsible person in person. If this is not possible, then the employee has the right to use postal services. To do this, you need to send a registered letter with acknowledgment of receipt to the company's address.

It is important to know! When sending a document by mail, the countdown of two weeks until the date of dismissal will begin from the day the responsible person receives the application

.

Termination of an employment contract

Labor relations in any organization can be interrupted for various reasons. But at the same time, the dismissal process in each case must be carried out according to the law, which is described in detail in the Labor Code.

Quite often, the initiator of termination of the contract is the employee himself. At the same time, he resigns from the organization or company of his own free will. In this case, the employee must notify management two weeks in advance of his intention to resign. And he must do this in writing, namely write a statement.

But there are other options by which an employment contract can be terminated, namely:

• by agreement of the parties;
• at the request of the employer;
• in case of liquidation of the enterprise;
• due to the expiration of the contract itself.

Each of these situations has its own characteristics during the dismissal of an employee. And if in one case a temporarily disabled employee can be fired and not wait until the sick leave is closed, then in another it is no longer possible to do this legally and you must wait until he returns to work.

By agreement

An employment contract (fixed-term or indefinite) can be terminated at any time by agreement of the parties. This right is provided for in clause 1.art. 77 and art. 78 Labor Code of the Russian Federation. To do this, a special agreement is drawn up between the employee and the employer, which specifies all the conditions under which the employment agreement is terminated. In such a situation, dismissal is carried out within the period specified in the document. This method of terminating the contract eliminates the possibility of disputes arising. If necessary, the parties can cancel the agreement by concluding an additional agreement to terminate the previous agreement.

sample agreement to terminate an employment contract with payment of benefits

It is important to know! If during the procedure pressure was exerted on one of the parties, the injured person can apply to the court with a corresponding statement. By decision of the court, the dismissal will be canceled, compensation will be paid to the person, and a fine will be imposed on the guilty party.

How is sick leave paid if a person gets sick on the last working day?

According to Art. 84 of the Labor Code of the Russian Federation, the day of dismissal is considered the last working day. The person resigning on this day is subject to all guarantees provided for by law. Therefore, if a person wrote an application to resign from work of his own free will, brought it to his superiors and fell ill on the same day, the calculation of the employee’s disability benefits will be made according to the insurance period.

It does not matter for what reason the sick leave was opened : whether the employee himself fell ill, or his child or another incapacitated family member needed care - in any case, payment for the leave taken by the employee will be made in full for all days.

Accrual rules

If an employee notifies of his intention to resign while on sick leave, or falls ill within 14 days after writing the application, then the benefit should be calculated according to the length of service according to the rules of Art. 7 of the Federal Law of December 29, 2006 No. 255-FZ:

1. 8 years and more - 100% of average earnings;
2. from 5 to 8 years - 80%;
3. less than 5 years - 60%;

For the calculation, two years are taken (from January 1 to December 31) before the year in which the employee fell ill or needed to care for a child. All income received from the employer during this time in connection with work is divided by 730. The amount received must be multiplied by the number of sick days - it does not matter whether before or after termination of the employment contract. This will be the amount of the benefit.

Payment period

All payments due must be given to the employee on the day of payment . The following must be paid: salary for the period worked, compensation for unused vacation, etc. On the same day, the employee must pick up a fully completed work book. But these rules do not apply to sick leave.

The certificate of incapacity for work should be submitted to the accounting department immediately after closure, even if at that moment the employee is no longer in an employment relationship with the employer. After receiving sick leave from a former employee, the administration is obliged to accrue disability benefits to him within 10 days. But the payment itself may come later - with the next salary (advance).

On sick leave for pregnancy and childbirth

Read on the topic: How are sick leave calculated? Calculation examples

It is established at the legislative level that it is prohibited to fire a pregnant woman or a woman on maternity leave. The contract can be terminated only if the initiative comes from the employee herself. The exception is situations if a woman was hired under a fixed-term agreement to replace the main employee who went to work on the last day of sick leave, or during the liquidation of the organization.

In other situations, the employer is forced to wait until the sick leave is completely closed and the employee returns to work.

Every employee may be temporarily unable to work due to illness. During such a period, termination of employment relations is possible only if the conditions specified in the Labor Code and legislative acts of Russia are met.

Payment of sick leave

Many workers who quit during their period of incapacity are interested in how they will be paid for sick leave.
In fact, there is nothing complicated about this, since this situation is described in detail in the Federal Law. And at work, the employee will have to pay benefits for the entire period of his temporary disability, even after the employment contract has been terminated. In this case, the payment of benefits is calculated depending on the employee’s length of service. But to do this, he must provide the company with a certificate of incapacity for work , and the boss is obliged to make a payment within 10 days.

If on the day of dismissal the employee cannot provide sick leave, then all payments will be made without the required benefits. When the document arrives at the enterprise, the benefit will be accrued on the day of payment of wages to other employees. If an employee was fired due to the liquidation of the enterprise, then he is required to pay not only his certificate of incapacity for work, but also pay severance pay.

Is it possible to fire an employee on the day the sick leave ends?

Dismissal on the last day of sick leave is also permitted if there is an agreement between the parties, according to which the dismissal of the employee is planned for a certain date, and is established in a document signed by the parties. Such an agreement can be drawn up separately from the employment contract, or it can be a written addition to it. In any case, it is important that there is a written expression of the parties’ desire to terminate the employment contract. After all, there is no other way to prove that the employee was fired precisely by agreement with the employer. If there is such an agreement between the parties, then an employee can be fired both while he is on sick leave and on the last day of sick leave.

Fired, can't be left

Employers often make the same mistake. They do not issue an order to dismiss an employee if he has not yet completed his sick leave. Perhaps this is the employer’s desire to be safe in case the employee suddenly changes his mind about quitting. But, on the other hand, a delay in the timing of dismissal may also violate the rights of the employee himself. After all, perhaps, after his recovery, he should already start a new place of work. In this case, neither the calculation, nor the payments, nor the issuance of the work book can be delayed.

That is, if the reason for dismissal is the desire of the employee himself, or the liquidation of the enterprise, or an agreement of the parties, the law allows the dismissal of an employee on the last day of his sick leave, as in other matters, and on another day established by the employee, the employer or the law.

Another case when the law allows an employer to dismiss an employee on the last day of his sick leave is if the enterprise is liquidated (without legal succession) or an individual entrepreneur ceases his activities. But in this case, the entire procedure must be followed to the letter of the law. The employee must be informed (on receipt) that he is leaving due to the termination of his employer’s activities, and at least two months in advance. It is not worth reminding that the employer must pay such an employee not only vacation pay, sick leave, but also severance pay. In addition, the employee retains labor guarantees for some time.

It turns out that if an employee is notified in advance, in writing, he can be fired both on sick leave and on the day of leaving sick leave. Dismissal occurs on a date that corresponds to a two-month period (this minimum is established) from the date of written notification to the employee.

Can the last day of sick leave be the day of dismissal?

To summarize, we can identify several reasons why an employee’s dismissal can occur both on sick leave and on the day the sick leave ends:

1. if the employee resigns of his own free will;
2. if the employee resigns by agreement with the employer;
3. if an employee is dismissed by the employer due to the upcoming liquidation of the enterprise (Article 180 of the Labor Code);
4. if a fixed-term employment contract has ended without a condition for its extension.

Thus, the ban on dismissal of an employee is established by law only at the initiative of the enterprise, if this is not related to the liquidation of the company. Thus, an employee cannot be fired under an article, or for any other reason that the law and judicial practice interpret as an initiative of the employer, until the employee is completely off sick leave. But already on the first working day after his return from sick leave, you can issue a dismissal order, carry out all the calculations with him, and also issue a work certificate. Accordingly, if this procedure is not followed, the employee has the right to demand his reinstatement and recognition of such dismissal as illegal through the court. And illegal dismissal entails not only payment of material and moral damage to the employee himself, but also administrative sanctions.