Dismissal of one's own free will from what date. What day is considered the last working day upon dismissal? Can they be fired on sick leave, on vacation or during a business trip

Among the list of guarantees provided to all participants in labor relations, the notice period when submitting a letter of resignation according to own will. Not every employee will immediately answer the question of how much is working out upon dismissal - 14 working days or calendar days, and the mutual rights and obligations of the management and the employee depend on this.

Legal grounds for working out upon dismissal

In order to meet the interests of both parties to the employment contract, the legislation establishes important rule dismissal at the initiative of the employee - an application with the specified requirement must be handed over to the management no later than 14 days before the expected departure from work. It is these 14 days that are recognized as the terms of working off.

During this period, both parties can take actions and decisions that have significant consequences for further activities:

• the employee knows exactly the moment of termination of employment, therefore, he can properly complete the current work;
• 14 days before the day of dismissal, the employee can resolve the issue of further employment;
• management, having a margin of time according to the Labor Code of the Russian Federation, has the opportunity to switch work processes to another specialist, as well as find a new qualified employee in the labor market.

As soon as a citizen has written a letter of resignation, the general course of further actions does not depend on the administration of the enterprise, since it has no right to prevent the termination of employment. After 14 days, an administrative document (order) must be issued, which will terminate the employment agreement, and the employee will receive a full calculation of the monetary reward.

What time is the countdown from?

How to count 2 weeks of working off for dismissal of one's own free will, because a mistake even for one day can lead to financial and other Negative consequences for each side of the employment relationship? The legislation provides a clear answer to this question.

Art. 14 of the Labor Code of the Russian Federation is devoted to the procedure for determining and calculating all procedural terms that arise in the course of work. The accuracy of the calculation of such time periods depends on the potential dispute between management and staff, which could lead to litigation. Deadlines in labor law are calculated taking into account the following features:

• each legally significant period of time established in the Labor Code of the Russian Federation is subject to calculation in calendar terms;
• the course of any period associated with the termination of labor relations begins on the day after the legal meaningful action or decisions;
• the calendar terms include both working days and weekends, holidays and other days on which labor activity is not carried out legally;
• the period of time in calendar terms is not subject to interruption or extension without additional mutual expression of the will of the parties.

Thus, in order to find out from what day work begins upon dismissal, it is enough to know the date of the official presentation by the employee of a statement about the future termination of work at the enterprise on his initiative.

Since this document is drawn up in writing, its receipt must be recorded by the administration of the enterprise according to the general rules of office work. The next day after this event, the countdown of two weeks provided for working out begins.

This rule fully applies to cases where the employee does not have the obligation to work 14 days (objective impossibility to continue working, etc.). In this case, the day the application is written also means that from the next day the employee is subject to dismissal if he indicates this date in his appeal.

At the enterprise, the responsibility for calculating the calendar period for terminating employment relations rests with the officials of the personnel service. Upon receipt of the employee’s appeal, they must make a note in the specialist’s personal personnel file from which date the labor contract is subject to termination.

If an employee for some reason forgot about the end time of the working period, personnel specialists must independently prepare all documents for termination labor agreement and submit a dismissal order to the manager.

Thus, the first day of working off is the next calendar date after the date of official delivery of the application. For example, the submission of such a document on March 17 means that the period of 14 days for working off begins the next day, i.e. March 18.

In what days is the time for working out calculated?

Since the standard rule for calculating procedural terms indicates the need for calculation in calendar days, a similar condition will fully apply to the period of working off. Starting from the day following the moment the application was handed over to the management, 14 days begin until the legal fact of termination of the employment agreement.

Article 14 of the Labor Code of the Russian Federation also provides for another important rule related to the end of the procedural period for working off.

If the last calendar day of a two-week working day falls on a non-working day, the legal fact of termination of the employment relationship will be the first working day following it. Thus, this principle formally implies the possibility of extending the working period due to one or more days off.

There remains one extremely important question Are weekends counted as working days when you leave? The calendar calculation of terms implies that the calculation includes absolutely all calendar dates of the week, month or year, including weekends and holidays. When submitting an application for termination of employment, it is not required to additionally indicate the calculation procedure, however, the establishment last day the work of the employee will directly depend on the status of the day on which the moment of dismissal falls.

If out of 14 days of working most time is occupied by non-working days (this situation is possible with long official holidays), the administration of the enterprise is not entitled to arbitrarily extend the period of working off by adding such days. This fact must be taken into account when accepting an application from an employee and planning activities for paperwork accordingly.

In practice, this rule looks like this.

Suppose an employee handed in a statement of termination of employment on March 1. The course of the calendar for working off begins on the next day, i.e. from March 2nd to March 15th. However, March 15 falls on a Saturday, which is a non-working day. Consequently, the last working day will be only March 17 - Monday, and the actual working time will be not 14, but 16 days.

Date of dismissal - is considered the last working day or not? In practice, this question arises everywhere. Our material will help you get an idea of ​​what the date of dismissal is.

What is the day of complete dismissal from work according to the Labor Code of the Russian Federation, is it paid or not

The day of dismissal is the last day on which a person is considered to be on the staff of the employer. But Is the day of dismissal considered a working day? Or does the employee not have to work on that date? Any day can be a working day, even if in fact the employee did not work at that time, but the place of work remained assigned to him (Article 84.1 of the Labor Code of the Russian Federation).

The law as a whole does not prohibit dismissal during sick leave, weekend or vacation (with some exceptions), therefore, not in all cases day of dismissal - last working day.

The question of the need and amount of payment for the day of dismissal directly depends on whether it will be worked out or will be a day off, sick leave, etc.

It is on the last day of the employee's stay in the state that you need to issue him work book and the copies of documents requested by him, list all the due amounts.

When should an employee be fired if he is on sick leave

Terminating an employment contract with an employee who is on sick leave is prohibited if the grounds (excluding the liquidation of the company) relate to the will of the employer (part 5 of article 81 of the Labor Code). Then the employer is forced to wait until the employee closes the sick leave and comes to work.

In all other cases (upon dismissal by agreement of the parties, at the request of the employee, etc.), there are no restrictions on dismissal during sick leave. If the employee is out of work on the corresponding day, you need to send him a letter of notification about the need to come for labor and calculation.

The effect of vacation on the date of dismissal

All of the above regarding sick leave applies to cases where the employee is on vacation on the day the employment contract is terminated (regardless of the type of vacation). Additional nuances appear when the employee asked to arrange an annual vacation along with the dismissal. In such situation the day of dismissal of the employee is considered last day of vacation (Article 127 of the Labor Code of the Russian Federation).

However, the date of the final settlements is shifted - the employer is obliged to make them (as well as issue a labor one) on the day before the employee goes on vacation. At the same time, in the event of his illness, the rest time does not increase (letter of Rostrud “On vacation ...” dated December 24, 2007 No. 5277-6-1). The employee will no longer be able to change his intention to quit while on such a vacation.

What day do you need to fire if the day of dismissal is a day off

If on the date of termination of the employment contract the employee has a non-working day according to the schedule, then it is definitely impossible to dismiss him on the previous working day. So, if an employee quits on his own initiative, his right to withdraw the application at any time within 2 weeks will be violated (appeal ruling of the Moscow Regional Court of 07/01/13 in case No. 33-12747 / 2013).

The law does not contain a direct prohibition to dismiss directly in the output law. However, there is jurisprudence from which one can draw following output: dismissal of an employee on the day of his rest is illegal (JSC of the Khabarovsk Regional Court of 05/16/12 in case No. 33-3001). It is recommended to be guided by the rule prescribed in Part 4 of Art. 14 of the Labor Code of the Russian Federation, and carry out the dismissal on the next working day after the day off.

In the above court decision, it was about dismissal at the will of the employer. At the same time, if the employee deliberately indicated a “non-working” date in the application, dismissing him on a later date, on the closest working day, can be regarded as a violation of his rights.

1. Ask the employee to write the application again, with the “correct” date.
2. If the employee does not agree, still make a dismissal on a day off (this does not contradict the law), if necessary, calling a personnel officer and an accountant to work.

Thus, when determining the date of dismissal, it is important to take into account all the nuances. An error can lead to serious trouble for the employer, for example, in the form of a dismissal appeal by the employee in court.

Dismissal is a serious procedure and it usually takes more than one hour. Often, the dismissed person must work for another two weeks, and then there will still be enough time to complete everything. Required documents, but the legislation also provides for cases when an employee must be fired at the same moment when the letter of resignation is written.

In this case, all documents must be completed within a day. In this case, it is important to know whether the day of dismissal is considered a working day or not. In the personnel department, it is necessary to prepare all documents (order, payslip), an act of acceptance and transfer (if the person leaving is a financially responsible person). But often there are contradictions on how to determine the last working day upon dismissal.

The day of dismissal (it is considered what date from the moment the application is written) will directly depend on on whose initiative and for what reason the employment contract is terminated. By the way, the Law does not approve any sensitive mandatory sample, how such a document can be submitted.

The application can be written by hand or typed on a computer. The main thing is to indicate from what date a person wants to quit, and also for what reason. If the exact reason is not in the application, then the employer has the right to dismiss the employee after 2 weeks.

So the possible reasons are:

1. Leaving work at will. In some cases, the moment of dismissal is considered to be the date of writing the application, if such a desire is expressed by a disabled person, a mother of many children or a woman whose husband is being transferred to another locality to work. Calculation on the date of dismissal is also required in this situation.
2. Termination employment contract by agreement of the parties. In this case, the date of dismissal is considered the last working day and is determined by the parties individually at their discretion.
3. Reduction of staff or liquidation of the organization. In this case, before dismissing the employee, he must be warned at least 2 months in advance. An appropriate order is issued about this, which a person must sign (that he is familiar with it). In this case, both the last working day and the date of dismissal are the date indicated in the order.

How to correctly calculate the date

Almost every person knows that the person who quit must work for another 2 weeks after expressing his desire to leave the company. But it is not always possible to correctly calculate the date.

Consider an example: an employee wrote a statement on March 15, then the countdown of 2 weeks will begin only on March 16, and the date of termination of employment will be March 29. Do I have to work on the day of dismissal? Yes! If this is a working day, then the employee is also paid and therefore also has to work at this time. This period is paid as standard and if the employee does not go to work, then the employer has every right at this time. The issuance of a work book will be with a completely different entry, which can significantly damage the reputation.

But sometimes it can be dropped out on a non-working date. In such a situation, there will be some nuances:

• or on a holiday, the employer must dismiss and pay the employee on the last working day before this date. For example, if the falling day falls on Sunday, then the employer must fire the employee on Friday. On Monday, he has no right to do this! If this date falls on a weekend, then the workday should still contain the number on which the last working day falls. The act of transfer of all documents and settlement documentation is also filled in this day. If the day of dismissal falls on a weekend, then it cannot be indicated as the last day of work;
• if the day of dismissal fell on vacation, then the person is fired on the last day of vacation (the same applies to sick leave);
• if the employee went on sick leave on the day of dismissal, then all the same, the termination of the employment contract occurs on the date that was previously specified in the order. But at the same time, the employee has the right to pay sick leave for another 30 days. To do this, he will need to provide a closed sick leave to the management and receive a payment (carried out on the basis of his general experience).

Important nuances

For whatever reason a person decides to quit, it is worth considering some nuances:

• Even on the last day of vacation, you cannot fire a person. But this rule applies only to those situations where the employer is the initiator. If the initiative to dismiss an employee is his personal, then this is possible. As well as the case of dismissal by agreement of the parties - then all the nuances are prescribed in the agreement. The third case - if the employee's vacation falls on the date complete elimination enterprises. In this case, the last date of work will not be the last day of the vacation, but the date before the vacation. He is considered a worker and during this period the employee must be given all the documents (this day the work book is issued). But this is possible only if the mandatory working off (14 days) ends no later than the last day of the vacation. If mandatory work ends after this date, then the employee must still work the remaining days. Paid leave in this case is provided only for the period that has already been worked out in fact on the day of termination of the employment contract.
• If a worker warns the boss orally about his plans to quit, then it is impossible to count the days from this date.
• You cannot fire a person who is on vacation or on sick leave. An exception will be the situation when an employee wants to quit on his own initiative. If the dismissed person was not against, then he must sign the act or in any other form express his consent to terminate the employment contract. The last day of vacation is the day of termination of employment relations - on the same day all documents must be issued, this day an order is issued. But with the sick leave, the situation is somewhat different - the day of dismissal is officially considered not the last day of being on sick leave, but the first working day after it ends.
• Most of the controversy arises over which day is considered the last if a person is fired for absenteeism. In this case, the day of absenteeism should not be paid and the last working day is considered to be the day that he worked before the date of absenteeism.
• The issuance of a work book must be carried out on the day of termination of the employment contract. If on this day the employee cannot pick it up due to some significant circumstances, then he needs to send official letter with a proposal to give their consent to send the book by mail. Failure to receive a work book can be regarded as the employer's refusal to give it away, so management always strives to protect itself. All other documents must also be prepared by this day, including the obligation to make a full financial calculation.
• An entry in the work book must be made only on the day of dismissal. The employee retains the right to withdraw his application and therefore it is impossible to make an entry in the labor in advance.
• The problem is the death of an employee. Many mistakenly believe that the termination of an employment contract should occur directly on the day the employee dies. Actually it is not! The date specified in the order and the date of death cannot be the same. The employer has the right to issue an official order to terminate the employment relationship with the employee only on the date when the death certificate of the employee was issued.
• If, for example, an accountant or any other financially responsible person quits, then it is necessary to draw up an act of transfer of cases and material assets. Practice shows that an inventory and verification of all cases begin in advance, since it is not physically possible to count everything in one day, but the document itself must be signed only on the day the employment relationship is terminated. If it is signed earlier, then an incident will occur: the employee has formally transferred all his affairs and powers and does not have the right to deal with these issues - then what duties will he perform until the date of dismissal? That is why it is so important that these numbers match.

So, by general rule the day of dismissal is considered a working day and therefore the manager has the right to dismiss a person for absenteeism if he refused to fulfill his production duties at that moment. But, as practice shows, usually no one does this, and the employer and employee agree on the end of the employment relationship on their own, choosing the number that best suits both parties.

AT Labor Code The Russian Federation does not have a condition for a mandatory two-week working off. Consequently, an employee can write a letter of resignation and be on vacation or sick for the entire period of notice. This term in this case, it is not extended (letter of Rostrud dated 05.09.2006 N 1551-6).

Labor legislation states that on the date of termination of the employment contract with an employee, the employer has many obligations: to calculate and pay the calculation, issue an order and make an entry in the work book, and issue personnel documents. There is an erroneous impression that the other side of legal relations should come to collect the money and papers due. This is not true and regulations answer the question whether the employee is obliged to work on the day of dismissal, unequivocally. Yes, because this date is not recognized as free of duty.

What does the law say about the last working day?

In Art. 84.1 of the Labor Code of the Russian Federation states that the day the labor contract with the employing company is terminated is considered the last working date of the specialist. He spends office time performing the usual functionality, completing the tasks started, transferring cases and doing other things necessary to continue. labor process actions. Letting go of an employee is the good will of his superiors.

The answer to the question of whether it is necessary to work on the day of dismissal, given in Art. 84.1 refers to specialists who work in a classic five-day week. They act according to the standard procedure for parting with the employer: they warn him by submitting a written application, work out the prescribed two weeks, receive the calculation and documents and leave the company.

The rule does not apply to citizens who worked at the enterprise not actually, but formally, i.e. for certain reasons, they retained the position, although in reality they did not fulfill its functions. Such specialists cannot be involved in work even on the last day before dismissal.

Special rules apply if the two-week work ends on a weekend or holiday. The law recognizes the last working day following the date specified in the application as the last in the service. A person must come to the organization in order to receive a calculation, sign an order and pick up personnel documents, but the management does not have the right to involve him in the performance of official functions.

If a person is not asked to appear on a working day, this will be regarded as a violation of applicable law. Formally, within 14 days of working off, he can withdraw the application and continue relations with the organization. If the employer fires him on Friday, he will be deprived of his two due days of "thinking."

Another a special case- if the specialist works in a shift schedule, for example, 2 through 2. The answer to the question of whether the employee should work on the day of dismissal is definitely positive. However, if that date falls on a Saturday or Sunday, Public Holiday, management must come to the enterprise in order to complete the administrative procedure in a timely manner.

Dismissal and vacation: how to combine them?

Current labor law gives employees the opportunity to combine layoffs with vacations. There are two options for employees:

• write an application for leave with subsequent dismissal;
• report your plans to leave the company directly from vacation, either by appearing in person or by faxing or mailing an application.

In the first case, the last working day of a specialist is the date before the vacation. He performs official duties in the prescribed volume and transfers the case. The accounting department is obliged to calculate and pay him the calculation, personnel officers - to issue a dismissal order and issue a work book with a record.

If the application is written from vacation, the last day may be missing if the two-week work ends earlier than the specialist's vacation. The employer does not wait for his return, but issues an order and makes a calculation. You can pick up the work book later, at a time convenient for the parties.

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As a general rule, the day of dismissal is considered the last working day of the dismissed employee, regardless of the reason for terminating the employment contract. Except for cases when the employee was not actually at work, but at that time he was kept workplace/ position (Article 84.1 of the Labor Code of the Russian Federation). For example, in a situation where an employee leaves of his own free will,.

If the employee takes a vacation with subsequent dismissal, then his last day at work is the working day preceding the first day of vacation. And on this day, the employer must formalize the termination of the employment contract with him (clause 2 of the Definition of the Constitutional Court of the Russian Federation of January 25, 2007 N 131-О-О).

It happens that the date of dismissal falls on a day off, for example, if the employee has a shift schedule and he leaves of his own free will, in connection with which he must work for 2 weeks (Article 80 of the Labor Code of the Russian Federation). Then the dismissal of the employee occurs on.

What should an employer do on the day an employee leaves?

As mentioned above, the last working day of the employee is the day of dismissal. It is paid by the employer general order, i.e. for his full working out, the employee should be accrued wage. And the employer can hire a new employee for a vacant position on the next business day. On the day of the dismissal of the previous employee, it is better not to do this, so that it does not happen that you have 2 people in one place at the same time.

On the last working day, the employer must issue an order to dismiss the employee and familiarize him with this order against signature. If this is not possible because the employee cannot or does not want to go to work, then this fact must be recorded, at least on the order itself.

In addition, on the last day of work, it is necessary to issue to the dismissed employee a work book and other documents related to his labor activity, as well as make a full calculation (Article 140 of the Labor Code of the Russian Federation). If he is not at work, then with his consent, the work book can be sent to him.

Day of termination for compensation purposes

In addition to the salary on the last day of work, upon dismissal, the employee must be paid compensation for unused vacation days, if the employee has any. The settlement period for determining the amount of compensation is 12 calendar months preceding the month of dismissal (