The legislation does not provide for the option of dismissing an employee on vacation at the initiative of the employer (Article 81 of the Labor Code, part 6), with the exception of the liquidation of a working organization or the termination of an individual entrepreneur.

While on vacation, the initiative to dismiss may come from the employee and he has every right to do so. It turns out that if the employer wants to fire a vacationing employee, he is obliged to wait for him from vacation. The worker himself has the right to quit while on vacation, while the deadline for submitting an application must be observed.

Warning period

The Labor Code states that upon dismissal for own will on a general basis, the employee must notify the management of this fact in writing in advance, in this case two weeks before the desired date of departure (Article 80 of the Labor Code, part 1).

Vacationers need to apply 14 days before the end of the vacation (the main thing is that the vacation is more than two weeks, otherwise after it you will still have to stay at work until the end of the two-week notice period for leaving), during which time the employer must find a replacement for a vacant position.

According to the third part of the 80th article of the Labor Code, labor relations can be terminated earlier than two weeks in advance, i.e. the date indicated in the application by the employee, if he:

• retires (for the first time);
• goes to study;
• agreed on the date of departure with the management;
• when transferring the spouse (wife) of an employee to work abroad, to another locality;
• in violation of labor laws by the employer.

Important! To guarantee the continuity of the work process, the employer may require the employee to "work" for two weeks after the vacation ends. Such actions on the part of management are illegal.

Resigning while on vacation

Most likely, vacationers will not have the opportunity to personally bring a letter of resignation of their own free will to the personnel department. They can send it by registered mail by mail. Then the countdown date for the working period (14 days) is the next day after the receipt of this letter by the employer (Article 80 of the Labor Code, part 1).

The latter is obliged to register the application in the register of incoming documents and give it an incoming number. The official departure date is the final day of the 2-week period of working off, even if it falls on a vacation period. On this day, the employee is given work book and make a full payment with him.

Note: The employer does not have the right to recall an employee from vacation on the day he receives a letter of resignation from him, because. at this point, the employee is not fulfilling his job duties. The recall occurs only with the consent of the worker (Article 125 of the Labor Code, part 2).

Before the end of the notice period, an employee who is on leave may withdraw his application at any time and return to his job. Dismissal in this case will not occur if another employee has not been invited to the vacant position in writing, who cannot be denied a conclusion. employment contract(Article 80 of the Labor Code, part 4). During the period of vacation with subsequent dismissal, you can pick up a letter of resignation only until the day of the vacation.

Leave followed by dismissal

An employee of his own free will, on a general basis, can simultaneously write two applications - one for dismissal, the other for vacation, i.e. get rest with subsequent care. The employer has the right to refuse to provide the employee with leave with further dismissal, such an obligation is not assigned to him by law.

Rest with subsequent dismissal can be obtained only as a result of agreements with the manager, the employee's initiative does not solve anything here.

If the boss gave his permission, then the date of dismissal will be the last day of vacation. Documents are issued and settlements are made on the last working day preceding the vacation.

Leave as an advance

Following the law, employers do not have the right to grant vacation of a certain duration in proportion to the hours worked. Only after 6 months the worker can use all 28 days of annual paid leave (Article 115 of the Labor Code, Article 122 of the Labor Code).

In agreement with the management, the employee has the right to go on vacation before six months have passed since the conclusion of the employment contract (Article 122 of the Labor Code). Upon request, the following categories of persons may do so:

• those who have adopted a child under the age of 3 months;
• employees under the age of 18;
• pregnant women before maternity leave, women after it.

These categories include both newly arrived and already working employees, i.e. the employer is not insured against going on vacation to an employee who has not yet received the necessary length of service for this (has not worked for half a year). Part-time employees are provided with an annual paid vacation in parallel with their main job leave. If a worker in a secondary job has not earned an experience of 6 months or more, then he can be given leave in advance.

Annual paid leave for the completed 2nd and subsequent years of service is provided according to the vacation schedule at any time of the year (Article 122 of the Labor Code).

Dismissal of one's own free will during the vacation period, which was provided in advance, is possible. Just from the sum due payments upon dismissal, excessively used vacation pay will be deducted (Article 137 of the Labor Code). The advance leave debt is withdrawn from the employee's salary in the cases described in Article 137 of the Labor Code.

Important! On his own initiative, the employee has the right to terminate the employment contract while on vacation, regardless of what kind of vacation he is on, whether it is leave to care for a child up to 1.5 and 3 years old or maternity leave.

Paperwork

The basis for going on vacation is an order according to the generally accepted one or a sample document independently developed by the company is used. Then they make a note-calculation (or arbitrary). An employee, on his own initiative, can submit a letter of resignation before the end of the vacation. If management doesn't mind it, then:

• the originally created vacation order and settlement note are canceled;
• a new note-calculation and an order for a new vacation are drawn up;
• an accompanying memorandum is prepared.

Despite this, the law does not provide for the need to annul the original order and create a new one in accordance with the new conditions.

In order for the accountant to have written grounds for recalculating vacation pay, it is better to draw up new order on vacation and on its basis again fill out a note-calculation. It will not be superfluous to create a cover memo.

The employee is required to apply for resignation in writing, drawn up in accordance with the forms of the internal work schedule. If there is no established sample, then the application is written in an arbitrary form, taking into account the elementary rules of office work.

Based on the application, a dismissal order is drawn up, which is transmitted to the employee for review and signature.

Cash settlements

Difficulties for the employer are moments when the employee was paid extra vacation pay. The Labor Code limits the situations in which debt can be withdrawn from an employee. Withholding debt is the right of the employer, but not the obligation.

In cases where there is nothing to keep the debt from, they forget about it or sue the debtor employee. Before taking measures to collect overpaid funds from the salary, it is worth familiarizing yourself with the grounds for dismissal, because some of them at the level of the law do not give the employer the right to make deductions, namely:

• missing, death of an employee or employer-individual (Article 83 of the Labor Code);
• an emergency has occurred (war, catastrophe, disaster, etc.) (Article 83 of the Labor Code);
• the worker has become professionally unfit according to honey. conclusion (Article 83 of the Labor Code);
• the court or the labor inspectorate reinstated the employee at the same place, work site (Article 83 of the Labor Code);
• dismissal in connection with the passage of military or alternative civilian service (Article 83 of the Labor Code);
• the owner of the property of the company has changed, this applies to the chief accountant, the head and his deputies (Article 81 of the Labor Code);
• liquidation of the organization's activities or closure of the IP (Article 81 of the Labor Code);
• companies, individual entrepreneurs (Article 81 of the Labor Code);
• the employee refuses to be transferred to a job that suits him according to a medical report, and the employer does not have such a job (Article 77 of the Labor Code).

For other grounds for dismissal, not described above, the debtor is deducted max 20% of the salary for each payment. Object of recovery s / n - it is taken minus personal income tax.

compensation payments for unused vacation are calculated in the same way as vacation pay. Together with them, the employee is charged a salary for the days worked in the month of dismissal and, if it is provided for by labor legislation in a particular case. Vacation is paid no later than three days before its occurrence, the basis is an order for vacation.

The desire of the worker 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 quit using one of the options:

1. Writing a letter of resignation 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 spend vacation before dismissal. The work book is issued before the start of the vacation period.

Money is also paid in advance. The employee rests the prescribed, and simply does not go to work. But it must be remembered that the employer is not obliged to go along with the employee and may refuse to leave with subsequent dismissal.

The second option, regardless of the desire of the employer, obliges him to issue a dismissal. Can I write a letter of resignation while on vacation? Vacationer it is not necessary to go to work at least one day to write an application as misread by many. That is, the review, which the authorities usually insist on, does not need to be done.

You can understand the employer. A statement written on vacation is an obstacle to the notorious "working off". An employee cannot be pulled into the office to finish his business, hand over documents, train another person. The person who wrote the application calmly waits for the deadline for the notification, and picks up the documents without worrying about the unfinished work.

But insisting on a recall is not competent:

1. There is no production factor.
2. Vacationer's consent is missing.

This video details the first option, "Vacation with subsequent dismissal." What should you pay attention to, and what should you be afraid of? Recommended for viewing:

Procedure and deadlines for submitting an application

When to collect documents?

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

• labor;
• references;
• final settlement.

Delay invalid.

Employer's responsibility

Labor law protects against the arbitrariness of the employer and allows you to initiate an administrative penalty in the following cases:

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

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

Voluntary dismissal is always possible. It does not matter whether a person is on vacation or at his workplace. The only important thing is the desire of the employee and the observance of a simple procedure for breaking off labor relations.

It is possible to finally terminate the employment relationship with the employer during the vacation only at the request of the employee. The law allows the arbitration or bankruptcy trustee to terminate the contract with the employee upon the final liquidation of the organization and its recognition as bankrupt in court.

Foundations

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It is possible to terminate the employment contract due to circumstances beyond the control of the employer and employee. Their list includes:

• if the employee goes to the army or enters the organization for alternative service;
• if the employee is reinstated at the workplace by decision labor inspectorate or court;
• in case of impossibility of re-election to the position;
• conviction of an employee to administrative or criminal punishment, providing for the inability to work in the organization;
• death of citizens - the employer and employee, their recognition by the court as missing or dead;
• the onset of emergencies, disasters, major accidents, which are recognized as such by federal or local acts;
• other cases provided for in paragraphs. 8-13 Art. 83 of the Labor Code of the Russian Federation;

Dismissal during vacation implies full payment on the last working day. The employee must receive a work book, a 2-NDFL document, etc.

Legislation

Grounds for withholding from wages employee are specified in the Labor Code of the Russian Federation - Art. 137. Unified order forms (on granting leave to an employee) are established by the Decree of the State Statistics Committee of 01/05/2004.

Notification

In the application, the employee can indicate the desired date of dismissal.

An employer may terminate an employee before the minimum two-week period in which the employer can hire a new employee has expired.

An application for dismissal can be submitted earlier than 14 days before the actual termination of work.

During vacation, the employee can send an application by registered mail. When contacting the director in person, you must make sure that the application has been accepted by an employee of the personnel departments and the corresponding mark has been made in the registration log ( registration number application and date of submission).

The employer cannot forbid quitting, but has the right to refuse to grant leave with the subsequent termination of the employment contract. The parties have the right to agree on the date of dismissal and earlier than 14 days.

Dismissal during vacation

Termination of the employment contract during the holiday period is possible. Its duration does not matter, but it is advisable to apply 14 days before the end of the vacation.

Otherwise, the employee will have to work the remaining days. If all 14 days fell on all vacation days, then the employer does not have the right to force the employee to work after the vacation.

Of your own accord

An employee has the right to quit at any time. His only duty is to give the employer advance notice of his departure.

Forced dismissal of an employee while he is on vacation is prohibited.

By agreement

Dismissal is carried out in a contractual manner. Mutual consent of the employee and director is required.

The difference lies in the need to agree on the conditions for termination of labor relations, the initiative of the parties.

The note-calculation on dismissal form No. T-61 contains information on the basis for dismissal, information on vacations used, including those provided in advance.

Educational

An employee studying by correspondence course has the right to file an application for termination of the employment contract at any time, notifying the director of the enterprise or another authorized person in advance of his dismissal.

Decree

Dismissal is carried out on a general basis. The mother must be paid all due vacation pay. The subsequent child allowance is assigned by the social protection authorities.

The application can be sent by letter or by presenting it in person at the Human Resources Department.

Registration procedure

Dismissal of one's own free will during the holidays is issued. After its consideration, the employer issues, draws up a note-calculation.

If the application was received from the employee during the vacation, then the employer can subsequently cancel the order to grant the vacation and accept a new order for a vacation of a shorter duration.

A memo may be attached to the order. It is necessary to cancel the initial order in order to recalculate vacation pay, and this requires documentary justification.

Preparation of documents

The personnel department is in charge of preparation. He draws up an application, gives it to the employee for signature. The draft order is also prepared by an employee of the personnel department. In the note-calculation, the exact amount of vacation pay is indicated, the calculation is based on the days actually worked.

Documents must be prepared in a timely manner - by the day the work is actually completed.

Applying

In 2019, there is no single form for resigning during vacation. It is developed by the employer. The application is submitted in person - to the personnel department or issued by registered mail.

The employee must be sure that the employer is notified that the employee is about to quit.

The employer can set the date of notification in his own way. For example, an employee in a letter will indicate one number, and an entry can be made after a few days. Such disputes are resolved privately.

Sample

The application shall indicate the name of the employer's organization, full name official, request for dismissal and preferred date. The application shall indicate the date and signature of the employee.

If vacation is granted in advance?

The Labor Code of the Russian Federation does not indicate that vacation should be proportional to the length of service. This is indicated in the Letter of Rostrud No. 947-6 dated 06/23/2006. An employee can fully use the main vacation after six months of work.

If the leave is provided in advance, and the employee does not work it out, the employer has the right to withhold overpaid days from the employee's calculation.

Is it possible without working out?

AT labor law there is no concept. The employee must notify about his departure 2 weeks before the actual end of work. But in practice, it continues to work for the specified period.

2 weeks are not worked out if the application was submitted during the vacation period and the two-week period completely fell on rest days.

An employee may not comply with the warning period if he is actually unable to continue working in the employer's organization (due to leaving, joining the army and for other good reasons).

Calculation terms

Must be held on the employee's last day of work. If he cannot come for the calculation, then the amount is transferred by agreement with the employer at a different time.

At any time before the expiration of the two-week period, the employee may withdraw the letter of resignation, if another employee, who by law cannot be denied employment, was invited to take his place in the transfer procedure.

During vacation followed by dismissal, it will not be possible to withdraw the application, since the settlement with the employee is carried out on the last working day.

Debt collection from an employee

It is possible before the actual calculation for unused vacations, overpaid wages.

Hello! Today we will talk about the dismissal of an employee / employee during the vacation period, we will tell you the procedure for dismissal, the calculation of payments and we will analyze several situations: at your own request, at the initiative of the employer, and if you take the vacation at your own expense.

Dismissal during vacation at the initiative of the employer

The Labor Code of the Russian Federation prohibits the dismissal of an employee at the initiative of the employer if the employee is on vacation. An exception is dismissal by written agreement of the parties or as a result of the liquidation of the company.

The ban on dismissal of an employee during vacation applies to all groups of citizens: those working on an urgent basis and perpetual contract. Maternity and study leave are also zealously protected by law, and it is strictly forbidden to dismiss employees who are on them. We have already written an article about
If the end of the contract temporary employee had to go on vacation, then he can be dismissed in the usual way, and this will not come as a surprise to him, because the period was prescribed in the contract with the employer. In such a situation, he does not need to be called from rest, the date of dismissal will move to the last vacation day.

If the vacation is taken "at your own expense"

Leave without pay is both annual, due to beneficiaries (for example, pensioners), and extraordinary, at the request of the employee.

Administrative unpaid leave for five days is given to citizens in cases of marriage, the birth of a child, the death of close relatives. Such leave is due to any employee on each occasion, the total annual number is not limited (for example, an employee can go on vacation if he is married, and then another five days after the birth of a child). An employee cannot be dismissed during such a vacation, but he has the right to file on his own initiative.

When an employee goes on unauthorized unpaid leave and does not warn the manager about it (which is equivalent to absenteeism), he can be dismissed at the initiative of the employer. Or if the vacationer is late on vacation, the manager has every right to get rid of the "truant". He is obliged to notify the dismissed person 14 days in advance. If the employee does not return to workplace, and does not sign the dismissal order, all documents are sent to him by mail. It is always better to send such documents with acknowledgment of receipt, so that there is evidence not only of sending the letter, but also of receiving it.

Voluntary dismissal during vacation

The employee has the right, on his own initiative, to quit at any time he wants, including during the holidays. According to the law, no restrictions are imposed on it. As in the case of voluntary dismissal in working time, warn the employer and the employee must submit an application 14 days before the expected date of dismissal. This period may be reduced by agreement of all parties.

It is not necessary to transfer the application for dismissal during the vacation personally to the head. Even if the vacationer is far from the workplace, he can send his application by parcel post, the employer does not have the right to reject it. However, it is worth considering that the beginning of the two-week “working off” is considered the day following the date the employer received the application.

Without a two-week working period, an employee may be fired due to retirement, enrollment, moving abroad, or violation of the law by the company.

The procedure for filing a dismissal during a vacation - 5 steps

Step 1: An employee submits a voluntary resignation letter. Here, too, there are two options: he can present it to the manager personally at the workplace or, if this is not possible, send it by letter.

Step 2: Based on the application, the head generates a dismissal order, which contains the full name. the employee, his position and the reason for dismissal. The order is issued in duplicate and signed by both parties. If the dismissed person cannot put his signature under the document, an act is drawn up with the signatures of at least two witnesses.

Step 3: If the vacation was granted and paid “in advance” (for a year not yet worked out), and the employee leaves before it ends, then the duration of the vacation changes, and the amount of vacation pay changes accordingly, the excess of which the employer has the right to withhold. The original leave order is canceled by a note, and a new one is formed.

Step 4: On the day of dismissal former employee a work book is issued with the appropriate mark and calculation. In the case when the application was written in advance, and with the permission of the employer, the citizen went on vacation without the expected return to the workplace, then the calculation and issuance of all documents is carried out before the start of the vacation, on the last working day. The delay in settlement gives the employee the right to apply to the court in order to receive interest.

Step 5: At the request of the dismissed person, additional income certificates (2 personal income tax) may be issued to him.

Calculation and payments upon dismissal during vacation

An employee who is dismissed at his own request during a vacation is entitled to the following payments:

1. Salary for all days worked before vacation.
2. If left unused days holidays, then compensation for them.
3. Severance pay, which is paid in the case and in the amount as provided for by the employment contract.

If an employee quit during the vacation period, and as a result, vacation pay was recalculated, then in accordance with Part 2 of Article 137 of the Labor Code of the Russian Federation, the employer can (at its own discretion) withhold vacation pay from the employee paid in excess of the new calculation. He has the right to withhold no more than 20% of the amount paid (including the deduction of personal income tax). In situations where all payments have already been made, there is nothing to deduct from, then former employee may be sued for recovery. It is forbidden to make deductions if the employee was dismissed due to:

• absence in the company of another vacancy, necessary for the employee under a medical prescription, or the refusal of the employee to the proposed transfer;
• company liquidation;
• layoffs;
• conscription for military and alternative civilian service;
• reinstatement of a previous employee in his position (for example, such reinstatement is possible by a court decision);
• obstacles labor relations emergencies(natural disasters, epidemics, etc.).

Articles of the Labor Code of the Russian Federation on dismissal during vacation

1. Article 81 - it is possible to dismiss an employee who is on vacation only as a result of the liquidation of the company.
2. Part 2 Art. 125 - it is forbidden to call an employee from vacation in order to dismiss him.
3. Part 1 Art. 80 - the employee must report his intention to quit within 14 days.
4. Part 3 Art. 80 - an employee may quit during vacation without further return to work for a number of reasons (for example, retirement, start of studies, etc.)
5. Part 4, Article 80 - if the dismissed person, who wrote the application and went on vacation, intends to withdraw his decision, but a new employee has already been invited to his workplace in writing, it is no longer possible to stop the dismissal.
6. Part 5 of Article 137 - when an employee who has worked for less than six months and went on vacation "in advance" is dismissed on vacation, "undeserved" vacation pay will be deducted from his calculation.

The legislation prohibits dismissal during vacation at the initiative of the employer. Another thing is if the employee wants to quit of his own free will.

Is it possible to quit during vacation if the employee himself wants it? What actions should the employee and the employer take in order for the dismissal to take place in accordance with the Labor Code of the Russian Federation?

According to Art. 80 of the Labor Code of the Russian Federation, voluntary dismissal during the next vacation is possible if the employee warns the employer 2 weeks in advance. That is, the employee must write a letter of resignation of his own free will 2 weeks before the expected date of dismissal. Whether he is on his next vacation or not does not matter.

If the employee cannot personally deliver his application, he can send it by mail or send it through the principal. The employer does not have the right not to accept the application for consideration.

Dismissal during the vacation period is executed in the same way as dismissal of one's own free will in a normal situation. The employee writes a statement and after 2 weeks he is considered dismissed.

Based on the application for dismissal, the employer draws up an order in which the employee must sign. Since the employee is on vacation, he is not always able to personally put his signature. In this case, the employer must make a mark on the order itself, as well as draw up an act.

After issuing the order, the employer must issue a certificate - a calculation that will indicate all payments due to the employee:

• wages for actually worked working days in the month of dismissal;
• compensation for unused vacation. If the employee takes the entire vacation, and then quits, then the employer does not owe him anything under this item, only if the employee has vacation days left for the past year.
  If the employee did not take all the vacation, and he still had days left, then the employer must pay compensation for them.
• severance pay. And although the Labor Code of the Russian Federation does not provide for the payment of benefits upon dismissal of one's own free will, in labor or collective agreement it may be stated that the employer undertakes to pay his employees a certain amount of money.

All payments are made on the day of dismissal. Within the same period, the employer must issue the work book to the employee, which will be filled out in accordance with personnel procedures, as well as labor legislation.

Also, the employer must issue to the employee, at his written request, copies of all documents related to the work of this employee. Help 2-NDFL and help 4H is issued in the accounting department without fail.

If the employer still wants to fire the employee during the vacation, he can negotiate with him and conclude an agreement on dismissal "by agreement of the parties."
Upon dismissal on this basis, the employer may offer to pay the employee additional compensation.

Can I quit my job while on vacation? Yes, by following the full termination of employment procedure.