When is the day of dismissal? Dismissal on a day off

First, let's figure out how an employee should submit an application. The employee is required to submit an application for resignation of his own free will, 2 weeks before the date he leaves the company. During this time, a replacement will be found for him. According to the law of the Labor Code of the Russian Federation Art. 80 is indicated, the specialist must submit a business letter exactly 14 days in advance. And I would like to note that the day layoffs will definitely be working. These weeks are not considered work, as some people think. It’s just that if you notify the employer on a certain date and it is at this time that you want to leave the organization, then this can only be done in rare cases.

The person filed an application asking for dismissal on April 15. This date is today's working day. The manager accepts the paper, agrees with the dismissed person, and asks to work the required hours according to the law. He asks not because the specialist has to work or he just wants to, he simply follows the law. Article 80 of the Labor Code of the Russian Federation obliges the employee to submit an appeal 14 days before dismissal. People don’t know the laws, so they think that the management is deliberately forcing them to carry out detention. I would also like to note that the day an employee is fired is a working day. The date must be indicated in the appeal without the preposition “C”.

How can a person leave on the date when he needs to?

If a person needs immediate dismissal, he must provide specific reasons so that they convince management. For example, you can indicate in the application that a person is leaving the city and needs to get a new position tomorrow. Reasons that really force an employer to let a specialist go. In this case, you need to notify your immediate superior three days in advance.

Who is right?

If a person, having submitted an application to management, expresses a desire to leave on the day the application is submitted, without any particular reason, he must be prepared to be refused. If the employer wrote a resolution that such and such an employee needs to work for two weeks, then this is a mistake. The mistake is that he did not paraphrase the law correctly. But the specialist wrote the application incorrectly. This means both sides are wrong. The employee must submit a business letter either three days before dismissal or two weeks. Three days in advance, indicating good reasons. The day of dismissal in the first and second cases will be a working day, you need to remember this.

Application example:

Indicate in the application at the end of the text Article 80 of the Labor Code of the Russian Federation.

The day of termination of the employment contract is the last day of work, with the exception of cases when the employee did not actually work, but, in accordance with the law, retained his position. So, in particular, the date of termination of the contract may fall on the day when the employee:

• is on sick leave;
• is on vacation (in particular, when an application for payment at his own request was submitted by him during the vacation period or before the vacation and at the end of the warning period the vacation had not yet ended, or the employee was granted vacation with subsequent dismissal on the basis Art. 127 TK);
• absent from work for other reasons.

So, let's look at the possible options:

When settlement falls on a working day

For personnel officers, this option is optimal and does not raise any questions. But when submitting an application of their own free will, employees often do not know whether the day of dismissal is considered a working day or not, and therefore, having written in the application “I ask to be fired on December 10,” they believe that on December 10 they can no longer go to work at all or appear only for in order to take away the labor and say goodbye to former employees. Alas, since by law the date of dismissal is considered the last working day, it must be worked off. Therefore, when accepting a resignation letter from an employee or signing an agreement, it is advisable to explain to him all the nuances of the future separation.

When is the last day a weekend or holiday?

There are two possible situations here. According to Art. 14 Labor Code of the Russian Federation, if the last day of the period falls on a non-working day, then the end date is considered to be the next working day following it. Therefore, if the date of termination of the contract coincides with a weekend or holiday, the day of dismissal of the employee is the next working day. Moreover, the duration of the holidays does not matter. So, for example, if the notice period ends on the weekend of December 30, 2017, then the employee’s departure will take place only after the end of the New Year holidays - January 9, 2018.

And if an employment contract is terminated with an employee who has a shift work schedule, then the day of the employee’s dismissal is considered the date of his last work shift, including one that falls on an administrative non-working day. In any case, this is precisely the position adopted by Rostrud (letter of the Federal Service for Labor and Employment dated June 18, 2012 No. 863-6-1). And here problems arise for the employer - you need to bring a personnel officer and an accountant to work, pay them double pay, and they may not agree to work on their day off.

Such situations usually arise when dismissal is initiated by an employee, since often, when submitting an application two weeks in advance, a person simply does not pay attention to the fact that the notice period ends on a non-working day - for himself or for the administration. Therefore, the personnel officer should pay attention to these points when accepting the application, and agree with the employee on the last working day upon dismissal that suits both parties.

Can they be fired while on sick leave, on vacation or during a business trip?

It is impossible to dismiss an employee during a period of temporary disability or regular vacation only on the initiative of the employer. In all other cases, illness or vacation is not an obstacle to terminating an employment contract. It is also quite acceptable if the termination of the contract occurs on the last day of the business trip. It is acceptable, but not advisable, since the employee will not be able to receive the work book on time, and you will have to send him a corresponding notification by mail. Yes, and with the calculation, questions may arise.

Arbitrage practice

N. filed a lawsuit for reinstatement at work and payment of wages for the period of forced absence.

At the court hearing, it was established that N. submitted a letter of resignation of his own free will. Three days before the date of dismissal, N. went on sick leave and was ill for two weeks. The employer terminated the employment contract with the employee on the day specified in his application. However, N. believes that he was fired illegally, because at that time he was on sick leave and changed his mind about leaving work.

The court refused to satisfy N.'s claims, pointing out that the prohibition on terminating an employment contract during a period of temporary incapacity for work by an employee does not apply to cases of voluntary dismissal.

Responsibility for violations

According to Art. 84.1 Labor Code of the Russian Federation, on the day of dismissal, the employer is obliged to issue the employee a work book and make payments to him. The law provides for financial liability of the employer:

• for a delay in issuing a work book - in the amount of average earnings for the entire period of delay;
• for late payment of settlement payments - in an amount not less than 1/150 of the Central Bank key rate in effect at that time of the amounts not paid on time for each day of delay.

In addition, administrative liability has been established for violation of labor legislation. For a delay in issuing a work book or paying wages, an organization may be fined up to 50,000 rubles.

The dismissal procedure cannot be carried out in a short period; it takes from several days to two to three months, depending on the article of the Labor Code under which the contract is terminated.

This time is required for the manager to make calculations and prepare the necessary documents. During this period, the employee must complete his unfinished business, hand over inventory and documentation.

The employer and employee have an equal right to suspend the employment agreement. The need to terminate an employment contract may arise for many reasons.

In addition to the wishes of the parties, there are unforeseen circumstances that arise regardless of their will: family problems, relocation, military service. Therefore, it is impossible to establish a uniform procedure for determining the day of dismissal for different cases.

Normative base

An employee of an enterprise is allowed to terminate the contract with his employer if he wishes. The manager also has the right to dismiss his employee under certain circumstances.

The last 8 hours of performance of one’s official duties are considered at the same time as the period of dismissal. On the day the contract ends, the employee ceases to be an employee of the enterprise (clause 1 of Article 84).

Consequently, the day on which a person carries out his official duties for the last time becomes his final working day (Decision of the Fifth Court of Appeal No. 05AP-829/2009 5th of June 17, 2009).

How is the last working day determined?

The last day of a person’s stay at the enterprise becomes his final working day (Article 84). At the same time, the law obliges him to fulfill his obligations under the contract. After the end of the working day, he receives a payment, documents, and all due payments.

This rule does not apply if by this moment the person has not fulfilled his duties, but, in accordance with the Labor Code or the Legislation of the Russian Federation, his job has been retained. Such cases include the employee being on leave, paid annually or due to temporary disability.

If the termination of the employment relationship is carried out by mutual agreement of the parties, then the day of dismissal must be agreed upon and appointed by both parties. Usually the text of such an agreement states: “February 3 is considered the day of dismissal.”

At your own request

The main condition for dismissal in this case is necessity, according to Art. 14 Labor Code, notify your manager 2 weeks before the scheduled date. By agreement of the parties, it is sometimes possible to reduce this period.

The countdown should begin on the second day after the application is delivered to management. The date the application was written does not matter, the main thing is when the administration received it.

For example, a statement was written on September 23, submitted to the manager on September 26, therefore, September 27 is the beginning of the two-week countdown, and October 10 is considered the day of dismissal.

The law allows for the possibility of resigning without work under certain circumstances:

• admission to study, which does not provide the opportunity to continue working;
• a citizen reaches retirement age and decides to take the opportunity to retire;
• serious health problems.

Lawyers do not recommend using the following text: “I ask you to dismiss me at your own request as of November 3.” When using this wording, it is difficult to determine whether a person returns to work on November 3 or whether the contract has already been terminated at that moment.

This point is especially important for the accounting or human resources department, because it is on the last day that all due money must be transferred, and the work book must be filled out.

Lawyers advise you to write: “I ask you to dismiss me of my own free will on November 3.” This wording means that the final day of work will be November 2, and on November 3 the agreement will be terminated and the person will no longer have to come to work.

Upon liquidation of an enterprise

If the final cessation of the operation of an enterprise is planned due to closure or bankruptcy, the manager is obliged to notify employees and trade union bodies 2 months before the planned closure.

If the employees’ activities are seasonal, the notification period is reduced to one week. Citizens with short-term contracts (up to 2 months) are required to be notified three days in advance.

The administration issues an order on the planned reduction, indicating the expected day of dismissal. This day becomes the deadline for final payment. Each employee receives a copy of the order, and he must sign and express agreement with the text of the order with his signature.

When an organization is liquidated, pregnant employees, mothers on maternity leave, and employees on sick leave do not have any benefits and are subject to removal from office according to the general rules.

When staffing is reduced

A citizen on vacation is allowed to be fired if he himself initiates the termination of the contract. To do this, you must receive a confirmation letter from him with a personal electronic signature.

Any employee can receive leave, immediately after which he can resign. If an employee being dismissed on his own initiative is on vacation, he is also obliged to notify the management of the enterprise no later than two weeks before his dismissal using a statement.

The date of termination of the employment contract assumed by the employee in practice usually corresponds to the final day of vacation.

When leaving after a vacation, determining the last day of work raises many questions.

By its Resolution No. 131-О-О dated January 25, 2007, the Constitutional Court of the Russian Federation formulated a legal position on this issue: the final day of work at a given enterprise is not the last day of vacation, but the date before the vacation, that is, the final day of work before the start vacation.

Therefore, when issuing permission to a person for vacation and subsequent dismissal, the employer on the day before the start of the vacation must:

• write the appropriate order;
• issue the citizen with a work book with relevant entries;
• make a settlement with payment of all due amounts.

This is prescribed by paragraph 1 of Letter of the Federal Labor Service dated December 24, 2007 No. 5277-6-1 “On leave followed by dismissal.” The person must be given all previously unused vacation days.

When a pensioner voluntarily resigns

A working pensioner has the right to submit a letter of resignation. The wording “Please dismiss me at my own request, as a working pensioner” implies providing him with a three-day period of compulsory service.

If there is no indication of pension status, then the procedure for terminating the employment relationship occurs according to general principles. That is, he needs to work for 2 weeks, just like all other employees.

The working days begin on the second day after the application is submitted to management. The 15th day after this becomes the date of suspension from work.

A pensioner can stop working without working, by signing an agreement with the management of the enterprise.

How to indicate the date of dismissal in the application?

You can write the application at your own discretion. There is no single form. General requirements: the application is written with references to the Labor Code of the Russian Federation. You can write by hand or type. It is important to clearly outline your own proposals and intentions regarding termination of the agreement.

It is imperative to enter the date of termination of the contract, otherwise the manager may remove the applicant before the two-week period has passed.

The current number is placed under the text of the statement. The date the application was written has nothing to do with the date of dismissal. The day the application was written is a mandatory detail, without which the document is invalid and cannot be accepted.

The date of dismissal is part of the applicant’s appeal to the employer. It becomes the final day of the labor relationship. The dates of dismissal and writing of the application should not coincide.

Date on the dismissal order

If the termination of the contract is initiated by the employer, then the date of dismissal is specified in the order written on behalf of the manager. This becomes necessary:

• upon liquidation of an enterprise;
• reducing the number of employees;
• change of leadership;
• repeated gross violations of labor discipline;
• repeated evasions from fulfilling their duties;
• absenteeism without legitimate reasons.

The order of dismissal must coincide with the date of practical removal from office. After the actual dismissal, it is impossible to draw up an order, because before leaving, the employee is given his work book, and without an appropriate order it cannot be issued.

It is also inappropriate to write an order before the day of dismissal, because on the very last day the person may change his mind about leaving work and want to cancel his resignation letter.

The right to withdraw a resignation letter is guaranteed by the laws of the Russian Federation and cannot be violated by the employer.

Responsibility for violation of the dismissal date

By law, the employee must be paid in full on the day of dismissal. He receives the money and work book he is entitled to. If the terms of dismissal or other points of this procedure are violated, the citizen may go to court.

If on the last day a person is unable to receive his work book due to the fault of the administration, the employer will have to legally pay compensation for the period of forced absence in the amount of average earnings (Article 234 of the Labor Code). If the complaint is sent to the Labor Inspectorate, the company and management may be fined for violating the Labor Code.

If the employee was not issued a work book on time and he does not come for it for a long time, the employer will have to reimburse earnings for the entire period. You can protect yourself by sending a notification by mail that he needs to appear for documents.

If the employer does not comply with the dismissal date, for example, suspends the employee before the end of the two-week period, then the person can be reinstated in his place, and the employer will have to pay for the entire period of forced absence.

If after a two-week period the person continues to work, the contract with him is not canceled, and the employee does not insist on this, then the contract continues to be valid on the same basis. The person is no longer subject to removal from his position, and if you try to fire him in the future, this will end in problems for the employer.

Therefore, enterprise managers should be especially careful when calculating the terms and dates of dismissal and clearly determine the exact moment when the contract expires.

Nuances

The end of a period when terminating a contract does not always fall on a working day. The procedure for calculating deadlines is regulated by Art. 14 TK.

If the end date of the term falls on a weekend, then it is not counted: the end date of the term becomes the first working day after it.

If the dismissal date falls on a day that is a day off at the given enterprise, then the resigning employee is obliged to return to his workplace on the Monday immediately after this weekend. But the employer has no right to force him to work.

It is prohibited to fire an employee on the eve of the weekend for the following reasons:

1. During the weekend, the citizen retains all his rights and workplace. By dismissing him before the Friday day off, the employer does not allow him to exercise his rights guaranteed by law.
2. The employee cannot exercise his right to withdraw the application, which is also guaranteed to him by law.

On the eve of the weekend, it is allowed to dismiss an employee only with the agreement of the parties. If a person works in shifts, then the final day of work becomes the moment of termination of the contract, even if it falls on a weekend or non-working day. The employer is required to go to work on days off in order to complete all relevant procedures.

So, the date of dismissal becomes the last working day, regardless of whose initiative the contract is terminated. This rule does not apply if the employee is absent from the enterprise, but retains his job.

When calculating deadlines in months, problems may arise if the date falls on a date that is not in the given month. According to Art. 192 of the Civil Code, the end of the period in such cases is considered to be the last day of the month. For example, a period begins on November 30 and must end in February. In a leap year the period ends on February 29, and in other years on February 28.

The dismissed employee’s last day at his workplace is considered the moment of official termination of the employment agreement ().

On this day, a person is obliged to be at his workplace and fully perform his duties, except in cases where this is provided for by the terms of the employment agreement. For example, a dismissed employee performs the functions of a security guard and must be present at the workplace within two days.

The actual date of dismissal was October 21, his last shift was October 20, the next one was October 23.

An important point is the possibility of deferring payment of settlements and wages. The law prohibits entering into an agreement to extend the payment period upon termination of an employment relationship.

Therefore, such a violation of the law may result in administrative liability for the management of the enterprise (Articles 234 and 236 of the Labor Code and Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

The punishment is a warning or an administrative fine (from 1 to 5 thousand rubles), a fine for legal entities - from 35 to 50 thousand.

No matter how strong and long-lasting the relationship between the specialist and the employing company, they may decide to part ways. In order not to break the law and comply with administrative procedures, it is useful for citizens and management to know which day is considered the day of dismissal, what duties must be performed on this date, how to resolve controversial issues and, if necessary, defend their rights.

The last day in service is a special date when both parties to the labor relationship have additional rights and responsibilities. It is important to know about them so as not to create conflict situations and not violate the provisions of current legislation.

Article 84.1 of the Labor Code of the Russian Federation states that the last day before terminating an employment contract is the specialist’s working date, when he completes existing tasks, transfers cases, etc. An exception to this rule is a situation where a person has not previously performed labor functions, i.e. he simply retained his position.

If the day of dismissal of an employee is a public holiday, Saturday or Sunday, the last day of work is postponed to the next weekday. The specialist must appear to pick up the work book, sign the order, and receive the payment. The employer has no right to force him to fulfill his duties.

If a person works on a shift schedule and the contract termination date falls on a weekend, the enterprise administration must go to work to pay and fire the specialist. He, in turn, works the scheduled hours and leaves the company.

Is the day of dismissal a working day for a person who goes on vacation with subsequent termination of the employment contract? A special rule applies here: the citizen transfers matters and completes the started issues on the last date before the planned vacation. The administration issues him a work book, transfers the payment, and the parties do not meet again.

Last day before dismissal: employer responsibilities

To fire an employee who decides to leave the organization on his own initiative, in accordance with current legislation, the administration of the employing company must take the following steps:

1. Issue a dismissal order

The document is prepared in the standard format T-8 or T-8a, signed by the head of the enterprise and the employee himself.

The day of dismissal is considered to be the last working date of the specialist. Experts do not recommend preparing an order in advance; there is always a possibility that it will have to be canceled: the legislation reserves the right for the employee to change his mind and withdraw the application.

Important! The date of the order does not coincide with the day of the actual separation of the parties in two situations: if a person goes on vacation with subsequent dismissal or says goodbye to the company to reduce staff. In both cases, the document is prepared in advance.

If the specialist was a financially responsible person, a document is attached to the order confirming that the administration of the enterprise has no financial claims against him.

1. Make a calculation

Having learned from what date the specialist’s dismissal day is considered, the company’s accountant is obliged to make a calculation. It includes:

• wages for actual days worked;
• compensation for unpaid vacation;
• severance pay (if a person leaves the company on the initiative of the administration);
• other payments required within a specific position.

Payments must be made on the employee's last working date.

In practice, situations are possible when a conflict arises between the parties regarding the settlement amount. If it is not immediately possible to reach an agreement, on the last day at work the person receives that part of the amount that is not disputed. Further proceedings may be carried out with the involvement of third parties (for example, the court).

If a person did not actually work in the organization (he simply retained his position), the funds are paid to him no later than the day following receipt of the request for payment.

Important! Late transfer of settlement money is an administrative offense. In this case, representatives of the enterprise are obliged to pay compensation to the employee for the delay.

1. Issue a work book

The date of dismissal is considered the last working day when the company’s personnel officers make an entry in the specialist’s work book. When this manipulation is performed, the company has no right to delay the issuance of the document to the employee. Neither the lack of a work permit, nor the presence of a debt to the organization, nor other motives are considered “valid” reasons.

If a person is not actually at the workplace, the employer has no leverage to force him to take away his work book. To relieve himself of unnecessary responsibility, he must send by registered mail with acknowledgment of receipt a request to appear for the work or agree to have it sent by postal services.

1. Issue other documents

On the last day of voluntary dismissal, the administration issues the employee a 2-NDFL certificate drawn up for the last two years and a certificate for calculating sick leave, reflecting the amount of transfers to the Social Insurance Fund. Upon written application, the specialist may be provided with other documents: a copy of the employment order, transfers to other positions, information about the period of work with a specific employer, etc.

Responsibilities of the employee on the last working day

Contrary to popular belief, the last day at the company is intended specifically for the performance of work duties, and not solely for completing procedures related to the termination of the contract with the employer. On the specified date the employee:

• performs functions within the scope of his position;
• completes previously started tasks;
• transfers matters to his successor or colleagues;
• fills out the worksheet;
• receives personnel documents and calculations.

Working hours have a standard duration. Letting a person go early and releasing him from some of his responsibilities is good will, not the duty of the employer.

If on the last day of work upon dismissal an employee does not want to go to work, such behavior is considered by the employer’s administration as absenteeism. Absence from the enterprise for more than four hours without warning serves as grounds for dismissal at the initiative of the employer. A conflict with management is fraught for a specialist with a damaged work record and a “tarnished” reputation.

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Labor legislation states that on the date of termination of the employment contract with an employee, the employing company has many responsibilities: accrue and pay the salary, issue an order and make an entry in the work book, issue personnel documents. One gets the erroneous impression that the other party to the legal relationship should come to collect the money and papers owed. This is incorrect, and the regulations answer the question of whether an employee is obliged to work on the day of dismissal, unambiguously. Yes, because this date is not recognized as free from official obligations.

What does the law say about the last day of work?

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

The answer to the question whether it is necessary to work on the day of dismissal, given in Art. 84.1 applies to specialists who work in a classic five-day week. They follow the standard procedure for parting with the employer: they warn him by submitting a written application, work the required two weeks, receive a payment 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, their position was retained, although they did not actually perform its functions. Such specialists cannot be brought to work even on the last day before dismissal.

Special rules apply if a two-week work period ends on a weekend or holiday. The law recognizes the working day following the date specified in the application as the last day in service. A person must come to the organization to receive a payment, sign an order and pick up personnel documents, but 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 considered a violation of applicable law. Formally, within 14 days of service, he can withdraw the application and continue relations with the organization. If the employer fires him on Friday, he will deprive him of his two required “reflection” days.

Another special case is if a specialist works on a shift schedule, for example, 2 through 2. The answer to the question whether an employee should work on the day of dismissal is clearly positive. However, if this date falls on a Saturday or Sunday, a public holiday, management must appear at the enterprise in order to complete the administrative procedure in a timely manner.

Dismissal and vacation: how to combine them?

Current labor legislation gives employees the opportunity to combine dismissal with vacation. There are two options for employees:

• write an application for leave with subsequent dismissal;
• report your plans to leave the company directly from vacation by appearing in person or submitting an application by fax or mail.

In the first case, the specialist’s last working day is the date before the vacation. He performs official duties to the required extent and delegates matters. The accounting department is obliged to calculate and pay him the salary, the personnel officers are obliged to issue a dismissal order and issue a work book with a record.

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

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