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An employee can resign at his own request. For an employer, the sudden dismissal of an employee is associated with many inconveniences. Therefore, the law provides for a two-week working period. But there is always a possibility that the employee will not want to work the required 2 weeks. The law provides for such a possibility, and today we will talk about the nuances of dismissing an employee without working off.
How long does it take to notify the employer of dismissal?
The concept of compulsory service is not provided for in the law. The employee must only notify the employer in advance that he intends to resign. The deadlines for different categories of employees vary. An ordinary employee must report 2 weeks in advance, and the head of the organization 1 month in advance. Workers on a probationary period, fixed-term contract or seasonal work submit an application 3 days in advance. The working period starts from the next day.
At the same time, having announced their dismissal, many employees stop showing up at work, taking sick leave or vacation. Such behavior does not serve as a basis for extending the period.
Letter of resignation
An employee has the right to submit a written resignation of his own free will not only during the period of work, but also during the next vacation or sick leave. However, labor legislation does not establish in what form a notice of intention to quit should be given. For example, an employee is not even prohibited from sending a telegram to the employer.
If there is a conflict situation, the employee is recommended to:
- or hand over your letter of resignation to the employer’s representative against signature - transfer it to the secretariat, human resources department, office, and so on;
- or send by registered mail.
Vacation followed by dismissal
By the time an employee ends their career with your organization, they may have unused vacation days. Before resigning, he has the right to give them time off. To do this, he submits an application for leave with subsequent dismissal. The day of dismissal is considered the last day of vacation. But you can withdraw the application only before the start of your vacation, then he will lose this opportunity.
It is more convenient for the employer to receive such a statement 2 weeks before the vacation, but the employee is not obliged to warn. The employer, for its part, also has no obligation to provide the employee with paid leave. It can be replaced with monetary compensation and the employee can be forced to work for the required period - except in the case where the vacation before dismissal coincides with the vacation schedule.
Having received the employee’s application, issue an order to grant leave followed by dismissal. The person resigning must sign the order. If an employee falls ill while on vacation, there is no need to extend it, but sick leave will have to be paid. All calculations must be carried out before he goes on vacation, that is, on the last day. Then the employment relationship is considered terminated.
What is this according to the Labor Code of the Russian Federation?
There is no separate article in the Labor Code that is entirely devoted to the concept and procedure for granting leave with subsequent dismissal. However, there is Article 127, which mentions this type of recreation.
Article 127 of the Labor Code of the Russian Federation states the following: an employee who has unused vacation days and who decides to quit his job has the right to ask the employer to provide him with all unspent days before dismissal.
In this case, the employee will write one application in which he will ask for annual leave in the amount of all days not taken off and subsequent dismissal of his own free will.
A separate application for termination of the employment contract at the initiative of the employee is not drawn up.
Based on the received application, vacation pay is calculated for all unused vacation days, the calculated amount is paid three days before the start of the vacation.
Directly on the pre-vacation day, the employee’s dismissal is formalized under clause 3 of Article 77 of the Labor Code of the Russian Federation, while the date of termination of the employment contract is indicated as the last vacation day.
Registration of dismissal includes the calculation of all necessary payments, their issuance to the employee, execution of a dismissal order, making an entry in the work book and carrying out other actions related to the termination of the employment relationship. All necessary documents are handed over to the employee before going on vacation.
That is, in fact, the employee is considered dismissed before the start of the vacation; he will no longer be able to return to work, however, according to the documents, the date of dismissal is the last day of vacation.
This is the concept of vacation followed by dismissal.
Can an employer refuse?
Article 127 of the Labor Code of the Russian Federation states that unused vacation days “may be provided” to the employee upon his written application.
The phrase “may be” means that the employer is not at all obliged to satisfy this request.
In practice, this procedure is formalized relatively rarely. This is not very convenient for the employer - to fill out unnecessary documents and send them on vacation.
It is much easier to fire a person immediately (taking into account two weeks of work, if at his own request), pay him monetary compensation for all unspent vacation days and vacate the position to find a new employee.
Thus, the conclusion is this: an employee can write an application for annual leave with further termination of the employment relationship, but the employer alone decides whether he is ready to satisfy the applicant’s request or not.
Refusal will not be a violation from the point of view of labor law.
For how long is the vacation booked?
If both parties do not mind, then you can take out a vacation for all unused vacation days.
It’s good if there are 14 of them - that’s exactly how many days the warning period for leaving of your own free will is. It turns out that the employee will be on vacation during the working period, which is very convenient for him.
If there are more than 14 unused days, then this is not an obstacle from the point of view of Article 127 of the Labor Code of the Russian Federation, since it speaks of the employee’s right to ask for all unused days that have accumulated as of the current date. The main thing is the consent of the company management.
How many days in advance should I submit?
According to the Labor Code of the Russian Federation, vacation pay must be accrued and issued 3 days before the start of the vacation. In this case, the employer will not violate any laws. If payment is made later, penalties will also be charged for days of delay.
Due to this restriction, it is wise to submit an application at least three calendar days before the start of the annual leave, and it is better to communicate your desire in advance.
The employer needs to consider the decision, prepare for the leave and dismissal of the employee, and decide who will perform the duties of the absentee.
According to the law, a new employee can be hired to replace a person who has gone on vacation with further dismissal from the first day of vacation. Despite the fact that, according to the documents, the former employee will still be on the staff, he will no longer have the opportunity to withdraw his application, he will not be able to return, which means he can look for a new one.
What to do if an employee changes his mind about leaving
The period of service is needed not only by the employer, but also by the employee himself, in order to think carefully about everything. Within two weeks, he can change his mind and not leave his workplace. But everything becomes more complicated if a new candidate has already been selected to replace him. In this case, the obligation to hire a new candidate should not arise voluntarily, but by force of law. For example, when transferring from another place of work, if the candidate has already quit there.
If the order is not signed, there are no problems - the employee simply leaves a request to withdraw the application. What if the order is signed, a settlement note is drawn up, an entry is made in the work book and wages and compensation are paid? Then you will have to spend a lot of effort: compensation must be returned, the entry in the book must be canceled, and the order must be cancelled.
Should an employee work
You should receive a warning from the employee that he wants to leave soon. But there are circumstances that give him the opportunity to independently choose the day of dismissal and not work for 2 weeks.
- Reaching retirement age. If an employee works while a pensioner and wants to quit, he is also not required to work.
- Enrollment in a full-time department of an educational institution.
- Transfer of the husband (wife) to a new workplace, and consequently, moving to another city or country.
- Change of residence to another city or country.
- Caring for a sick family member or a child under 14 years of age;
- Health problems.
- When authorized bodies (prosecutor's office, labor inspectorate) identify delays in wages, refusals to grant vacations and other violations of labor law. If the court finds a violation of labor laws, and you refused to dismiss the employee within the specified period, you will have to pay a fine.
- In addition, a pregnant woman or a conscript may leave the workplace without complying with the warning deadline. Under these circumstances, the employee must provide evidence. For example, an order to enroll a student in a university.
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Dismissal of the financially responsible person
Rostrud named the features that arise during the dismissal of materially responsible persons. Having received a resignation letter from such employees, the employer must:
- carry out an inventory in connection with the change of the materially responsible person;
- organize the transfer of cases;
- in some cases - cancel the power of attorney for the right to represent the interests of the employer;
- reissue bank cards with sample signatures and seal imprints;
- replace the electronic signature key certificate in the Client-Bank system.
However, if a financially responsible employee submits a resignation letter during the next vacation period, and the date of dismissal falls on the vacation period, then due to his absence from the workplace, a problem arises with the implementation of the listed activities. According to the regulatory authorities, this does not give the employer the right to change the period of dismissal that occurs after the expiration of the working period. In particular, the date of voluntary dismissal does not depend on whether the employer orders an inventory or not.
If the employer wants to recall the resigning employee from vacation to carry out these activities, then he must first obtain voluntary written consent from the person.
Is it possible to fire an employee without working for two weeks?
Above, we examined the reasons that oblige an employer to fire an employee in one day. But the director may consider other reasons valid or simply meet the employee halfway and immediately sign the application.
An employer can dismiss an employee on the day the application is submitted, without working off. In this case, the basis for dismissal will change - dismissal by agreement of the parties. Dismissal by agreement of the parties differs in that, in addition to the order, a dismissal agreement is signed with the employee.
- If the dismissal is formalized simply with a “Dismiss” visa on the application, write in the work book - the employment contract was terminated at the initiative of the employee, clause 3. Art. 77 Labor Code of the Russian Federation.
- If an agreement is signed with the employee and an order is issued, the employment contract is terminated by agreement of the parties, clause 1 of Art. 77 Labor Code of the Russian Federation.
In judicial practice, there are cases when employers force an employee to sign a statement on his own, while putting down false dates. It is unacceptable! Only an employee can initiate an application at his own request. Such requests from superiors are illegal and can easily be challenged in court. The least that a violator faces is payment to the employee of the average salary for the entire period of forced absence.
Dismissal of an employee without working at his own request
To dismiss an employee on your own, you need to issue an order. The order is based on the submitted application and includes its details. As the basis for dismissal, indicate - clause 3, part 1, art. 77 Labor Code of the Russian Federation.
Submit your dismissal order no later than your last day of work. But keep in mind that the accounting department must prepare for the dismissal of an employee and make all the necessary payments and calculations. Therefore, it is better to issue an order in advance. Together with the order, a note-calculation is drawn up. Familiarize the resigning employee with the order; if it is impossible to obtain his signature, make an appropriate note. Before issuing it, make a note of dismissal in your work book indicating the article.
Even if the employee has not worked the required period, he retains all rights. On the last working day, it must be calculated, wages, vacation pay and compensation, if any, must be issued, and all documents must be submitted. The employee also retains the right to appeal to the prosecutor's office or to court if management violates his rights.
For all days of delay in payment, management must pay the average salary. The work book must also be returned on time, otherwise you will have to compensate for material damage for each day the book is retained, because its absence does not allow you to get a new job. The date of dismissal is entered in the book as a number when the employee receives it. If the employee did not come for the book and refused to receive it by mail, the employer has no responsibility.
