Dismissal during vacation at your own request. Dismissal after vacation at your own request

The prohibition for an employer to dismiss employees who are on vacation is provided for in Part 6 of Art. 81 Labor Code of the Russian Federation. It does not apply only in two cases: upon liquidation of the organization, and also if the individual entrepreneur for whom the citizen works decides to cease its activities (Clause 1. Part 1 of Article 81).

Is it possible to resign at your own request while on vacation?

This issue is discussed in detail in Art. 80 Labor Code of the Russian Federation. The employee has the right to submit an application for dismissal to the employer due to at will during vacation. This must be done two weeks before the expected date. If the manager does not object, this period can be shortened if necessary (for example, if a citizen finds new job and wants to get started on it as quickly as possible). The countdown begins the next day after the manager signs the application. After two weeks, the citizen will be considered dismissed from the organization. Read the article on how to follow the procedure. It must be entered in the employee’s book indicating the reason.

The employee can also send the application to the manager by mail, by registered mail. After receipt, it is certified and filed with the employee’s personal file. In this case, the notice period for termination employment contract will start later. In some cases, this may be inconvenient for the person leaving (for example, if he wants to quickly find a new job).

Do I need to notify management about dismissal after a vacation?

According to Art. 127 of the Labor Code of the Russian Federation, an employee has the right to go on vacation with subsequent dismissal at his own request. He must first notify the employer of his decision to leave the organization. During this time, the head of the organization will have the opportunity to find a suitable employee to replace the departing one. In this case, a resignation letter is written immediately after a voluntary leave, which a person can take off completely. In this case, the last day of work will be considered the last day of rest granted.

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Did your employee decide to quit while on vacation? Then you need to properly prepare the documents and complete all calculations with him. Our colleagues from the magazine “Salary” talk about how to do this.

The Labor Code prohibits dismissing employees while they are on vacation if the initiator of termination of the employment contract is the employer (Part 6 of Article 81 of the Labor Code of the Russian Federation). An exception is the liquidation of an organization or termination of activities by an individual entrepreneur.

If the employee himself expressed a desire to resign during vacation, then labor legislation does not establish any restrictions. In this case, it is important that the employee adheres to the deadlines for filing a resignation letter, and the employer adheres to the procedure for conducting the dismissal procedure.

Notice period for dismissal

The employee has the right to terminate by notifying the employer in writing no later than two weeks in advance. This procedure is established in Part 1 of Article 80 of the Labor Code of the Russian Federation. This time is necessary for the employer to find a new employee for the opening vacancy.

Often in practice the concept of “warn” is replaced by “work”. Although even the very concept of “work before dismissal” does not exist in the Labor Code. It's about about the deadline for filing a resignation letter - no later than two weeks.

Exception from general rule There are cases when further continuation of work is impossible and the employee needs to resign on a certain day. This could be admission to educational institution, retirement and other cases when the employer is obliged to terminate the employment contract within the period specified in the employee’s application (Part 3 of Article 80 of the Labor Code of the Russian Federation).

If an employee decides to leave the company at more early date without good reasons, then this is possible only by agreement with the employer.

The desire of the employee himself is necessary.

If he expresses it by writing a statement, then there are no other restrictions on dismissal during the vacation period.

Options

How to quit? While on vacation, you can resign using one of the options:

Writing a letter of resignation while on vacation, at your own request.

In the first case, the employee does not want to leave the organization immediately, but only after how to take a vacation before quitting. The work book is issued before the start of the vacation period.

Money is also paid in advance. The employee takes the required rest and simply does not go to work. But we must remember that the employer is not obliged to follow the employee’s lead and may refuse leave with subsequent dismissal.

The second option, regardless of the employer’s wishes, obliges him to formalize the dismissal. Is it possible to write a letter of resignation while on vacation? Vacationer It is not at all necessary to go to work for at least one day to write an application, as many people mistakenly read. That is, the feedback that management usually insists on is not necessary.

The employer can be understood. A statement written while on vacation is an obstacle to the notorious “working off.” It will not be possible to drag an employee into the office to complete his work, submit documents, or train another person. The person who writes the application calmly waits for the expiration date of the notification and picks up the documents without worrying about unfinished work.

But it is not legal to insist on a review:

There is no production factor.
The vacationer's consent is missing.

This video details the first option, “Vacation followed by dismissal.” What should you pay attention to and what should you be wary of? Recommended viewing:

Procedure and deadlines for submitting an application

When to pick up documents?

The day of dismissal is the same period when the employee must receive the required documents:

labor;
certificates;
final settlement.

Delay is unacceptable.

Employer's liability

Labor legislation protects against employer arbitrariness and allows you to initiate administrative penalties in the following cases:

Refusal to fire(not signing the application).
Violation of deadlines.
Non-return work book .
Late payment.
Failure to issue certificates.

It is important for the employer to comply with labor laws by formalizing the dismissal as correctly as possible.

Dismissal at your own request is always possible. It does not matter whether the person is on vacation or at his workplace. All that matters is the employee’s desire and compliance with a simple severance procedure. labor relations.

Dismissal during vacationis one of the ways to terminate an employment contract without working off. At the same time, any employee has the right to terminate the employment relationship during the vacation period on his own initiative. We will talk about the intricacies of this procedure and the rights of the parties below.

Is it possible to quit while on vacation?

If you don’t know whether you can quit while on vacation, then we answer: of course, you can. At the same time, no employer has the right to restrict an employee from his desire to submit an appropriate application and terminate his employment relationship with him. But an employer can fire an employee who is on vacation only in a limited number of cases:

In all other situations, dismissal during an employee’s vacation against his wishes is impossible.

When is a resignation letter written during voluntary leave?

When resigning during voluntary leave, there are several options for notifying the employer of the upcoming termination of the employment contract. An employee can submit a letter of resignation at the same time as submitting an application for leave, or he can submit it while he is on leave.

Let us clarify that the employer has the right to refuse to grant an employee leave with subsequent dismissal, since such an obligation is not assigned to him at the legislative level. Leave under such conditions is solely the right of the manager.

If you are planning to resign without leaving your vacation, the last day of your performance of your work duties in the organization (of course, if you submit the appropriate application in a timely manner) will be considered the last day of your vacation. Remember also that after your vacation you should not go back to your previous place of work to receive documents, since making payments to the employee and issuing documents to him is provided for on the last day worked before going on vacation.

On this date, authorized specialists must take the following actions:

An order to terminate the contract has been prepared.
The corresponding entries are made in the work book (after which it must be handed over to the resigning person).
Full payment has been made.

It should also be noted that in addition to the calculation for the period actually worked, you are also paid vacation pay on a general basis. If vacation is partially used, only the unused part of it is compensated simultaneously with the calculation.

If an employee wants to quit while already on vacation, he can come to the employer in person and write a corresponding statement, or write it and then send this document by mail. It is important to note that it is better to send the application by registered mail with acknowledgment of delivery and a list of the attachments, since in this case you will have proper evidence not only of the fact that the letter was sent, but also what kind of letter you sent, who received it and when.

It is also important to understand that if there are less than 14 days left from the moment the employer receives the application until the end of your vacation, the remaining days will need to be worked after the vacation (unless, of course, the employer meets you halfway and lets you go without working). The 2-week period begins to count from the date following the date on which the employer received the resignation letter.

That is, in general, the date of dismissal of an employee will be considered the day of the end of the 2-week period established for notice of dismissal, even if this day falls during the vacation period. On the day that is the last officially working day, the employer must give the employee his work record and make a full settlement with him.

Is it always possible to quit during the vacation period?

An employee who plans to terminate his employment relationship has the right to declare dismissal during vacation, regardless of what kind of vacation he is on. The procedure for dismissal in any case is similar to that described above.

By the way, dismissal is possible not only during vacation, but also during sick leave. In the latter case, it is carried out on the same grounds as dismissal while on vacation. The procedure for dismissal, calculation of deadlines and calculations will be similar to those provided for dismissal during the vacation period.

Dismissal by agreement of the parties

The Labor Code does not pay too much attention to dismissal by agreement of the parties, limiting itself in Article 78 to mentioning that termination of employment relations on such grounds is possible at any time, that is, including during the employee’s vacation.

The dismissal initiative can come from both the employee and the employer—the law does not contain any restrictions on this matter. It also does not contain instructions regarding the form of such an initiative, that is, the initiating party has the right to send a written proposal to terminate the employment relationship to the second party or express it orally.

The Labor Code also does not provide any explanations regarding the form of the dismissal agreement itself, from which we can conclude that an oral agreement on the date and conditions of dismissal is as valid as a written one. However, it is still recommended to formalize the agreement in writing, since the document obtained in this way will serve as evidence of the consent of both parties to terminate the employment relationship.

Dismissal by agreement of the parties, as well as dismissal for any other reason, is formalized by an appropriate order from the employer. The basis for issuing an order usually specifies the details of the agreement reached between the parties. This is another argument in favor of the fact that it is better to formalize such an agreement in writing.

As for the need to receive a resignation letter from the employee, since neither the Labor Code nor any other normative act do not indicate the application as a mandatory document required for termination of the employment contract, we can conclude that its absence will not in any way affect the legality of the dismissal procedure.

However, this statement can be considered fully fair only if the parties have drawn up and signed a written agreement. If there is no such thing in writing, the employee’s statement and the dismissal order issued on its basis will serve as evidence that the parties have reached an appropriate agreement.

This position is confirmed by judicial practice, in particular, it is reflected in the appeal rulings of the Moscow City Court dated March 18, 2016 in case No. 33-9523/2016 and the St. Petersburg City Court dated March 29, 2016 in case No. 2-4314/2015. In both cases, the courts considered agreement on the date, grounds and conditions of dismissal to be reached, despite the absence of a written agreement. Statements from employees and dismissal orders issued on their basis were accepted as evidence of reaching an agreement.

Thus, only the corresponding order is a mandatory written document for formalizing dismissal by agreement of the parties. But in order to avoid disputes about the legality of termination of the employment contract, it is recommended to conclude a written agreement between the parties or submit a written statement from the employee.

Let's summarize. The procedure for dismissing an employee on vacation is no different from the procedure for terminating an employment relationship in other circumstances. Legislative restrictions apply only to the grounds for dismissal - during an employee’s vacation, it is possible only in 3 cases: at the request of the employee, by agreement of the parties, or complete elimination enterprises.

The Labor Code provides officially employed individuals There are many ways to terminate a contract concluded with an employer.

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Moreover, in most cases it protects the rights of employees, but not the employer. This is why an employee can resign directly during vacation at his own request.

Is it possible

If an officially employed employee decided for some reason to resign of his own free will while on vacation, then the implementation of this action will not be considered illegal.

Labor Code, as well as others regulatory documents do not contain articles that make it impossible to terminate an employment contract during vacation by an illegal process.

But it is worth remembering that this kind of procedure has large number various nuances. The most important of them are the following:

To fill out an application, you do not need to interrupt your vacation or make a call from it;
It is necessary to comply with the deadlines for submitting the application.

The situation of providing leave in advance is special. Registration of this kind of vacation on credit is possible on the basis of current legislation.

There is no requirement to maintain any proportions between the length of vacation time and the amount of time worked. This point is covered in as much detail as possible in the letter from Rostrud dated June 23, 2006.

If an employee is on vacation, there is simply no need to suspend it. It will be enough to fill out the application accordingly and submit it to the HR department.

However, again, it is not necessary to do this in person. It will be necessary to send the application itself by registered mail with a list of attachments to the employer's address.

The work book itself can also be received by mail - you just need to indicate at the moment in the resignation letter.

Very important nuance, which must always be remembered is the obligation to comply with the deadlines for filing the relevant application.

According to current legislation, it is mandatory to notify your employer of dismissal 2 weeks in advance.

But if the employee who wrote the application is on sick leave or on vacation over the next 14 days, then given period cannot be increased.

If during the entire two-week period the employee is on vacation, then at his own workplace he may not return.

If the vacation ends before this period, then the obligation to work for this period arises. But this moment always remains at the discretion of the employer himself.

Deadlines

The time period within which an employee is obliged to notify his employer of dismissal is indicated in Labor Code Russian Federation.

In fact, the duration of the dismissal process can be this entire period. Moreover, the countdown begins from the day when the employee submitted a properly completed application to the personnel department.

But at the same time, the period for voluntary dismissal during vacation can be significantly reduced.

If the employer does not want to meet his employee and carry out the dismissal process in one day, then he should turn to the Labor Code.

It provides for cases when the employer is obliged to carry out the dismissal procedure on the date of filing the application (it is important that it be a working day).

The list of such situations includes the following:

the employee was enrolled as a student in any educational institution;
the employer has violated labor laws in some way;
it is required to provide care for a disabled person of group I;
retirement.

If you want to resign of your own free will, but the vacation ends before the two-week period expires, then you don’t have to work the remaining period of time based on the reasons stated above.

Especially often, various older people use this method of dismissal - they deliberately take vacation in such a way that they can retire immediately after it.

Order

The procedure for dismissing an employee at his own request is extremely simple.

It includes the following main steps:

the employee writes an application in the appropriate form;
formation of a special order - it is signed by the manager or another official who have the right to do so;
the accountant calculates the company's debt to the employee or vice versa - after which the funds are transferred to the account;
the employee picks up the work book.

When writing a resignation letter of your own free will, there is no need to follow any specific format.

The HR employee must formalize the dismissal process accordingly. Its task is as follows:

preparing an order in form T-8, submitting it for signature to the director, his deputy or other authorized person;
making a corresponding entry in the work book.

The second point is especially important. The employee should check as carefully as possible what exact wording was written down in the work book.

Because sometimes, it still happens that management, out of a desire to cause harm, prescribes some unflattering article as the reason for dismissal - absenteeism or something else. With such a record, it will be extremely difficult to find a job later.

Of course, this is a very serious violation of current legislation. But some employers still practice such “revenge”.

The work book must contain next entry in the case under consideration: “Dismissed at his own request on the basis of the Labor Code of the Russian Federation.”

If for some reason the recording sounds different, then you should immediately go to court. Since the employer in this way seriously violates the legislation in force in the Russian Federation.

Also, a serious violation of current legislation is failure to return the work book on time.

How to write an application

Writing a resignation letter is the simplest stage of this process. It is compiled in free form. Can be handwritten or printed on a PC.

But it must contain the following information:

in the upper right corner:
name of the organization;

surname, name and patronymic of the director or acting director;

text of the statement itself:
a briefly formulated request for dismissal indicating the reason (optional);

desired date of dismissal;

at the bottom:
date of compilation;

applicant's signature;

space for the signature of the head of the HR department;

space for the signature of the director/acting officer.

If an employee has any doubts about the employer’s honesty, he or she should be required to put a mark on the acceptance of this document by the HR department.

Or simply send this document by registered mail with a description of the attachment. Since there are often precedents when an employee of the HR department simply throws the submitted application into the trash bin.

In this case, proving the case in court will be extremely problematic, since there will simply be no confirmation of submission of the application to the personnel department.

Dismissal of one's own free will during vacation without work

There is a fairly long list of ways to avoid working out upon dismissal. But some of them are quite difficult to implement. The easiest way is to go on vacation and write a letter of resignation on time, when the vacation has not yet ended.

But sometimes, for some reason, such a scheme simply cannot be implemented. In that case the best way out is a compromise with the employer.

Since, by agreement, the management of the enterprise can dismiss an employee in one day, in compliance with all legal norms.

Often by various reasons(voluntarily or out of necessity), employees go on leave without pay - without maintaining wages.

In this case, the dismissal procedure remains the same. The employee simply needs to write a statement in the appropriate format.

The employer is obliged to pay monetary compensation (if any) and give the employee his work book.

At the same time, it is necessary to remember that the employer does not have the right to dismiss an employee on his own initiative while he is on leave without pay.