Downsizing while on vacation. Labor law on layoffs. In what cases can an employee be fired on vacation? How to avoid downsizing mistakes

20.09.2019

Can an employee who is on vacation be fired?

Yes, the law forbids, but not quite(Article 81 of the Labor Code of the Russian Federation).

That is, even, as they say, for the cause the employer does not have the right to get rid of the staff who is on a well-deserved rest.

There are several exceptions to this rule when dismissal is still permissible.

the citizen himself decided to quit;
the firm ceases to exist;
a written agreement of the parties - the employee and the employer themselves came to the conclusion that it was impossible for them to cooperate further, about which they signed a special document.

If a worker applies for, management does not have the right to refuse him, no matter when it happens - on vacation or not. He can "rest" the days assigned to him, and then receive an order for dismissal and payment on his hands. True, this applies only to those situations where the residual period is more than two weeks.

If some points remained unclosed, for example, relating to financially responsible positions, the head of the company still does not have the right to forcibly hold a person.

He should be fired and then, if necessary, sue. For example, this can happen if, when leaving the corresponding position, an inventory was not made, and then a shortage was discovered.

If the company is liquidated, then a special case — the employer must notify all employees of this at least two months in advance. An exception, when this period can be reduced, is involuntary bankruptcy.

How does this happen?

How to fire an employee who was on vacation? No later than fourteen days before the intended departure, the employee must notify his boss. And this period does not increase, even if the employee is on or on vacation.

The written application is transferred to the personnel service - you can personally, or you can by mail with acknowledgment of receipt.

It is not necessary to come even for a work book - the resigning person simply must warn about the desire to receive it by mail in a statement.

If all these two weeks were part of the rest period, then there is no need to return to the service. If not, you still have to work, but this moment is agreed with the employer - very often the bosses turn a blind eye to this and dismiss the vacationer without working off.

True, not always. There are situations when, according to the law, an entrepreneur is obliged to dismiss a citizen from his post on the day when he submitted an application.

the need to care for a disabled relative;
fact of retirement;
admission to study;
the employer violated the law in relation to the subordinate.

Otherwise, the whole procedure will be standard - the citizen submits an application for resignation, the management issues an order in the T-8 form, in work book an entry is made, then it (the book) will be handed over to the dismissed person along with the calculation.

The employee should carefully, as they say, “without leaving the cash register” should look at what they wrote to him there! The reason must be labeled as one's own desire- Art. 77 TK . If they wrote something else, for example, absenteeism, you should immediately go to court.

Reduction

This is possible only in one case - the business time is calculated, measured and the company ceases to exist (Article 81 of the Labor Code).

And the fact that the company is about to close, they do not suddenly find out.

So the term for the employer is still the same - not later than two months.

The procedure is the same - notifying people and personnel services, paying benefits.

When reducing the position, it does not matter whether it is a planned vacation or. Business also tends to end. Therefore, if this is exactly what happened, you need to write a statement about leaving the planned vacation, make copies of all documents and orders in your case and, based on this, proceed further. It is even possible to sue.

Is it possible to fire a person on vacation at the initiative of the employer or the employee himself? What are the nuances here? AT Russian legislation on this occasion, it is clearly written that the employer cannot terminate the employment relationship with the employee during this period, so the employee has nothing to fear. This rule applies not only to the main vacation, but also maternity and additional. It should be borne in mind that the employee himself can quit at any time, having prepared all Required documents.

Dismissing an employee

According to the Labor Code of the Russian Federation, an employer cannot fire a person during a vacation. This can be done only after he comes out of this vacation. Even such reasons as unsuitability or violation of discipline cannot be used here. However, there are reasons why you can still fire an employee:

A written agreement was reached between the two parties (employee and employer). By agreement, the enterprise and the employee are ready to terminate the employment contract without any claims to each other;
The enterprise where the person worked completely stopped its activities or went bankrupt.
The employee himself decided to apply for his resignation.

An employee has the right to quit at any time, regardless of when the vacation began and when it ends. It does not take into account the stage at which his work is and whether it is finished. The employer does not have the right to refuse dismissal under any circumstances if the procedure is carried out correctly and all the necessary documents are prepared. In the event that there are any unresolved issues between the parties, the case may be referred to the court. Such cases happen very often if an employee has not fulfilled his financial obligations and after his departure, for example, a shortage was discovered.

If the enterprise is closed for any reason, then dismissal can be made only upon prior warning. Employees must receive at least one calendar month's notice to this effect. The term can be reduced only if a compulsory bankruptcy procedure has been carried out, it must already be carried out at the time of notification. All these nuances are entered into the work book. However, this only happens if the company is completely liquidated, and not just transferred to another company. Sometimes it happens that unscrupulous employers simply deceive their employees.

Read also The procedure and features of the division of vacation into parts

Voluntary dismissal

As it has already become clear, it is impossible to dismiss an employee who is on vacation, but the employee himself can quit at his own request at any time. Dismissal of an employee at his own request is possible if:

The person wrote the statement while already on vacation. You can do this both on the first day of your vacation, and on the last. There are no restrictions in the Labor Code of the Russian Federation;
The employee asked for leave and immediately brought his letter of resignation, that is, he did it at the same time.

It should be borne in mind that the dismissal procedures are slightly different in these two situations. If the application is signed already on vacation, then in some cases the employee may no longer go to work. After the rest is over, you must receive a signed order and wages.

Important! If the vacation lasts more than a month, then you will not have to return to work. If the vacation, for example, lasts a week, then you will need to work another week, because according to the law, you must notify about your departure 14 days in advance.

An employee can ask his employer for leave and fire him immediately. In this situation, the day of termination of the contract will be considered not when the vacation ended, but when it began. That is, it is this date that is recorded in the work book and it is on this day that the employee is paid wages.

Maternity leave

Many women worry that they may lose their jobs during maternity leave, because no one wants to look for new job with a small child. There is no need to panic here, as the law protects the woman in this case. The dismissal of an employee is possible only on his own will but not at the initiative of the employer. A woman can write an application herself during her maternity leave and no longer go to work. In some cases, employers take advantage of this and try to force an employee to quit. Sometimes such situations reach the courts.

In order to quit during maternity leave, you must reach a written agreement with the company where the employee works, or send your letter of resignation to the employer by mail. It should also be noted here that the maternity leave completely frees the employee from the need to work out the prescribed two-week period.

Read also The procedure for correctly calculating the start date of maternity leave

Submission of documents

If a person decides to quit his job during his vacation, he needs to know some of the nuances. The resignation letter is sent to the physical address of the firm. Sometimes it happens that the actual address of the enterprise and the physical do not match. To be safe, you should send a letter in duplicate to each address, then it will definitely reach where you need it. You should also make sure that the employee receives a report that the letter was received. In this way, you can avoid deception, because the employer can say that he simply did not receive anything.

By the way, the employer does not have to sign the application at all. You only need to stamp the date on the employee instance. This is done in without fail, because the period of 14 days is counted from that very date. If it is not affixed, then this action can be considered as a violation of the Labor Code of the Russian Federation. This nuance must be taken especially carefully.

The labor code clearly states that an employee can terminate the contract with the company in which he works at any time, and the employer cannot refuse him. The only condition is that you need to give two weeks notice of your departure. Under no circumstances may an employer keep an employee at work. He must give him all the labor documents, as well as the wages due without any delay.

Do not be afraid that you will be denied dismissal when you are on vacation. This is the legal right of any employee, and is controlled by the labor code of the Russian Federation.

Dismissal without work

In some cases, the employer may release the employee from working off, which is equal to 14 days. It is possible that the two parties will simply agree with each other, but there are also nuances that are spelled out directly in the labor code. The two-week working off is canceled in the following cases:

Retirement;
Admissions to study at a university, technical school or college;
Violations employment contract enterprise.

If there was a violation, then it must be confirmed through the court or after the examination of a special inspection. It is not considered a violation that the employee simply does not agree with the decision of his superiors. Some cases, by the way, are considered on an individual basis. Sometimes you can count on early dismissal due to the illness of close relatives or an urgent move to another city.

The employer must notify the employee of the dismissal due to a reduction in the number or staff at least two months in advance (Article 180 of the Labor Code of the Russian Federation). At the same time, the current legislation does not contain indications of specific forms and methods of fulfilling the obligation of the employer to notify the employee of the upcoming dismissal. Based on the foregoing, it follows that the employer has the right to determine the specific way of familiarizing the employee with the notification at its discretion. In particular, he may send the notice by registered mail. The signature of the employee on the notification of receipt of the letter will confirm the delivery of correspondence and the fact that the employee was promptly informed about the upcoming reduction. In addition, the employer can use the service courier delivery. At the same time, it is important that the employee signs the appropriate courier receipt for the notification received.

Again, if the boss refuses to grant early leave with further dismissal, the employee's right to paid leave must be realized through the payment of an appropriate amount as compensation. Based on this, only the boss has the right to decide whether to grant leave to an employee who has been laid off or reimburse him in cash.

These actions are lawful in accordance with the decision of the Constitutional Court of the Russian Federation No. 29 of 05.02.2004. In accordance with Article 127 of the Labor Code, the head is obliged to make a decision on the implementation of unpaid vacations.

Info

According to the general rules, the employee does not have the right to demand paid leave from the boss during the period of notice of the upcoming dismissal. The exception is cases where such a right is enshrined in an industry agreement adopted by the organization in a collective agreement.

Attention

There are several options why an employee requires leave during the redundancy warning period, it can be:

Planned vacation.
Leave due to sickness or temporary disability.
Premature vacation.

The state provides for different rules regarding leave, depending on the reasons. Planned vacation According to the approved vacation schedule, there should be a queue of employees behind them, in accordance with Article 123 of the Labor Code.

Thus, if an employee leaves in the period before the start of his vacation, agreed on the schedule, his right must be fully realized in accordance with Article 127 of the Labor Code of the Russian Federation. That is, the boss is obliged to either provide planned leave, and after that, dismiss the employee or pay him monetary compensation and fire.
If, nevertheless, the employee decided to provide his well-deserved vacation, then it can be calculated on the same day.

Leave during the notice period

As for whether it is legal to notify sick employees, it must be said that the law does not prohibit this, so this can and even should be done in order to avoid conflict and controversial issues. Important! Do not confuse the situation with the delivery of a notice and direct dismissal.

The dismissal itself is not allowed during the hospital employee. Is it possible to serve a notice of reduction during sick leave? Is it possible to serve a notice of reduction during sick leave? Since there is no legal prohibition on such actions, it means that the boss has the right to notify the employee during the duration of his sick leave.
At the same time, one should take into account the fact that it is not always possible to warn sick workers on the same day that people at work were notified.

Is it possible to notify an employee of a reduction if he is on vacation

How should the employer notify the employee and from what date will the two-month period start to run (about which the employee must be warned upon dismissal)? (Expert consultation, 2010)

How to familiarize an employee during a vacation with a notice of reduction?
Is it possible to serve a redundancy notice when an employee is on sick leave?
Is the period of warning (notice) about the reduction in the number (staff) of the organization extended for the period of illness or vacation of the employee?
Reduction of an employee on exit from parental leave

The organization decided to reduce staff. A furlough notice has been sent to an employee on vacation.

The employee sent a letter to the employer refusing to sign this notice.

How to notify an employee of a reduction if he is on vacation

How should the employer notify the employee and from what date will the two-month period start to run (about which the employee must be warned upon dismissal)? (Expert consultation, 2010) Question: An employee of the organization is on annual paid leave. While on vacation, the employer decided to reduce the number, and this one is subject to reduction.

How should the employer notify and from what date the two-month period (which must be notified upon dismissal) will begin to run? (Expert consultation, 2010) Question: An employee of the organization is on annual paid leave.
Then it is important that the person signs the receipt provided by the courier service. Otherwise, he will not be considered properly notified; Attention! These two methods do not always work, because the employee may refuse to sign and receive a letter. Then the warning period, and consequently, the dismissal, will have to be moved.

send a telegram;
familiarize yourself with the document at home. In order to do this, it is necessary to form a commission at the enterprise, which should include employees of the organization. Such a commission is temporary and may include:

employee of the personnel department (HR agent);
member of the legal department;
representative of the trade union committee.

The same composition of the commission should be followed if the employee refuses to sign the notice.

Many employers are wondering: is it possible to warn an employee about a layoff when he is on vacation? According to Article 180, part two of the Labor Code of the Russian Federation, employees are warned about the upcoming dismissal due to staff reduction by the boss against signature two months before the mass dismissal. period of temporary disability. But it should be noted that the presence of such an employee to receive notification of the upcoming reduction is not required.

How to warn an employee about layoffs if he is on vacation? The employer must send a notice by mail. At the same time, the boss must insure himself and send a letter with delivery against signature in order to have data on receipt.

Is it possible to notify an employee of a layoff if he is on parental leave?

Reduction is a frequent phenomenon that sooner or later overtakes an enterprise or institution in times of crisis or due to the incompetence of an employee. Such a move allows you to narrow the staff and save a little.
But what should an employee do during a vacation when such a reduction takes place? How to protect yourself with the law? And how to respond to the current situation? That is what we want to reveal in this article. Does the employer have this right? The Labor Code makes it clear that the owner of an enterprise does not have the slightest right to demand the dismissal of a person hired by him at a time when he is on legal leave or on vacation due to temporary disability. According to Art. 80 of the Labor Code of the Russian Federation, an employee can quit during a vacation solely at his own request.

Is it possible to notify an employee about the reduction if he is on vacation

But it should be noted that the presence of such an employee to receive notification of the upcoming reduction is not required. How to warn an employee about layoffs if he is on vacation? The employer must send a notice by mail. At the same time, the boss must insure himself and send a letter with delivery against signature in order to have data on receipt. Only in this case, the employee will be considered notified of the upcoming dismissal. The requirements of the second part of Article 180 of the Labor Code are considered fulfilled if the employee:

wrote a statement indicating that he was warned about the dismissal;
put his signature on a copy of the notice given to him;
signed a special document, which reflects the fact of delivery of notifications to employees.

If the employee refuses to receive it during the personal delivery of the notice of the upcoming dismissal, the document can be read to him.
Code of the Russian Federation);

pay additional and mandatory compensation, which amounts to average earnings dismissed;
issue a severance pay (Article 178 of the Labor Code of the Russian Federation).

Highly important point is the appeal of the administration of the institution with a proposal to terminate the interactions between it and the hired worker. Since the initiative comes from the head of the institution, therefore, he sets the date for termination of the employment relationship. At the same time, the minimum terms that are provided for by the Labor Code of the Russian Federation are maintained. Actions of the employee Upon dismissal, the previously hired employee has every right to make sure that this procedure is followed correctly. If the administration of the enterprise has violated the procedure established by law, the reduction may be declared illegal, and the employee will be reinstated to his previous position.

The organization decided to reduce staff. A furlough notice has been sent to an employee on vacation.
The employee sent a letter to the employer refusing to sign this notice. What action should the employer take? When can an employee be fired?
In general, how legal is it to serve a notice to a person who is on vacation?
Question 6
Question: An employee of the organization is on annual paid leave. While the employee was on vacation, the employer decided to reduce the number of employees, and this employee is subject to reduction.

Good afternoon.

The procedure for terminating an employment contract at the initiative of the employer in connection with a reduction in the number or staff of the organization's employees (clause 2 of part one of article 81 of the Labor Code of the Russian Federation) provides for the mandatory warning of employees about the upcoming dismissal personally and against receipt no later than two months before the dismissal (part two article 180 of the Labor Code of the Russian Federation).
The receipt by an employee of a notice of an upcoming reduction does not deprive him of the rights granted by labor legislation, including the right to annual paid leave, both basic and additional, in accordance with the order of granting annual leave(Art. 22, Art. 114, Art. 116, Art. 122 of the Labor Code of the Russian Federation). The employer has no right to refuse the employee to exercise such a right.
However, it should be borne in mind that the order in which vacations are granted in an organization is determined annually in accordance with the vacation schedule approved by the employer, which is mandatory for both the employee and the employer (Article 123 of the Labor Code of the Russian Federation). Providing an employee with leave at his request at a time convenient for him is possible only if this is expressly provided for by the Labor Code of the Russian Federation and other federal laws.
Sending a warning to an employee about the upcoming dismissal due to staff reduction is not referred by law to the grounds on which the employee has the right to demand that he be granted annual paid leave at a convenient time for him. Therefore, if, in accordance with the vacation schedule, the start of the employee's vacation does not fall on the period in which the dismissal notice expires, the employer has the right to refuse to provide the employee with this vacation.
However, the legislation does not prohibit the employee and the employer by their mutual agreement to postpone the start date of the employee's vacation, scheduled, with the provision of it to the employee during the specified period.
Part six of Art. 81 of the Labor Code of the Russian Federation contains a direct ban on the dismissal of an employee at the initiative of the employer (with the exception of the case of liquidation of the organization or termination of activities individual entrepreneur) while on vacation.
Therefore, in the event that the end of the two-month notice period for dismissal due to staff reduction or staffing falls on a vacation period, dismissal is possible only after the end of this period. A similar point of view is shared by representatives of Rostrud (see, for example: I.I. Shklovets “The practice of applying labor legislation” // “Economic and Legal Bulletin”, N 10, October 2007).
In our opinion, in cases where the termination notice period expires during the vacation period, the employee should be fired on the first day of work after the vacation. This is indicated by the fourth part of Art. 14 of the Labor Code of the Russian Federation, according to which, if the last day of the term (in this case, the term for the notice of dismissal due to a reduction in the number or staff of employees) falls on a non-working day, the expiration day of the term is the next working day following it.
day of dismissal general rule is the last day of work (part three of article 84.1 of the Labor Code of the Russian Federation). Therefore, in the situation under consideration, the day of dismissal will be the day the employee returns to work after the end of the vacation.

Hello! It is necessary to inform the employee about the reduction, he is currently on vacation. Can I notify by Russian postal letter if he refuses to come in order to receive notification. If an employee mail order. does not receive a letter, then the warning procedure will take place only after the vacation?

Answer

You have the right to notify an employee who is on vacation of the upcoming dismissal due to a reduction in the number (staff) of the organization's employees by sending a notification to him by registered mail. The signature of the employee on the notification of receipt of the letter will confirm the delivery of correspondence and the fact that the employee was promptly informed about the upcoming reduction. In addition, the employer can use the courier delivery service. At the same time, it is important that the employee signs the appropriate courier receipt for the notification received. Only if there are supporting documents (notices or receipts signed by the recipient) can it be considered that the employee was properly notified of the upcoming reduction.

If the employee does not receive a notification, then he will have to be notified of the upcoming dismissal after the end of the vacation and going to work.

Details in the materials of the System:

1. Answer: How to issue a dismissal due to a reduction in the number or staff

Reduction Notice

All downsizing employees must be notified of the upcoming layoffs. This must be done before the expected date of dismissal. Each employee must be handed the notice in person and signed. When controversial situation about the legitimacy of the reduction, this will confirm the fact of the notification. This procedure is provided for in Article 180 of the Labor Code of the Russian Federation.

Editor's tip: it is advisable to indicate the expected date of dismissal in the notice of reduction with the proviso that if the employee is on sick leave or vacation (annual, educational, etc.) on this day, the dismissal will be carried out on the first working day after the end of the vacation or illness.

If the employee refuses to sign on receipt of the notification, then draw up a refusal to sign in the presence of at least two witnesses. Such a document will confirm that the employee was notified of the reduction in the general manner.

In the notice of redundancy, the employer may offer to terminate the contract before the expiration of the two-month notice period for dismissal. In this case, the employee must take a written notice of early dismissal. An employee who was dismissed earlier will have to pay additional compensation. Determine its amount based on the average employee's earnings, calculated in proportion to the time remaining until the expiration of the notice of dismissal. The basis is Article 180 of the Labor Code of the Russian Federation.

In some cases, there are reduced notice periods for dismissal:

if the employee is concluded fixed-term contract for a period of up to two months, then the reduction must be notified at least three calendar days in advance ();

if the employee is busy seasonal work, then a notice of reduction must be sent at least seven calendar days before the upcoming dismissal ().

Is it possible to notify an employee of an upcoming layoff by mail

Is it possible to notify an employee of the upcoming reduction if he is sick or on vacation

AT Labor Code The Russian Federation established a ban on the dismissal of an employee for reduction during his vacation or temporary disability (). At the same time, the legislation does not contain a ban on notification of impending dismissal during these periods.

Thus, the employer has the right to notify the employee of the upcoming reduction both during the vacation and during the period of illness. Notice of an upcoming reduction may be sent to an employee who is absent from work. Meanwhile, in the case conflict situation the fact of proper written notice to the employee and the period of notice will have to be proved to the employer.

Ivan Shklovets

Deputy Head Federal Service for work and employment

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