Labor Code day of dismissal. Do I need to work on the day of dismissal? Dismissal at your own request during the vacation period

Contrary to the wishes of some employees and employers, terminating an employment contract in one day is very problematic. The only exception is the case of dismissal by agreement of the parties, in which it is possible to dismiss an employee in one hour. The date of dismissal directly depends on the reason and on who initiates it: a manager or an employee. In some cases, the process may drag on for 2 weeks: this is the period in which the resigning employee must give notice of his resignation. There are exceptions when both parties manage to reach consensus and set a date in advance.

Another question that is of increased interest is the day of dismissal: is it a working day or not? In most cases, the date of dismissal is considered the last working day, but if the termination of the contract occurs at the initiative of the employer, then it can be indicated in the corresponding order.

There are other circumstances that influence when the last working day upon dismissal will be considered officially: for example, when enrolling in a university or retiring, the employer is obliged to terminate the employment contract within the period specified in the resignation letter (Article 80 of the Labor Code RF).

At your own request

In this situation, the employee has two options: agree in advance with the employer about the date of his departure, or warn him and work for 2 weeks. In any case, the day of dismissal will be considered the last working day, i.e. the date specified in the application.

• Engineer Petrov V.V. filed a letter of resignation on July 1 without prior agreement with the manager - accordingly, his last working day will be considered the 15th of the same month, since the countdown begins only from the day following the date of drawing up the document.
• Accountant Agafonova A.O. agreed in advance with the director about her resignation of her own free will. The date of dismissal will be considered the day the application is submitted, and at this time the employee is at the workplace and also receives all the necessary documents issued upon dismissal by the human resources department or manager.

To the question “is it necessary to work on the day of dismissal of one’s own free will”, labor legislation has a clear answer “yes”, therefore, if an employee needs to receive a work book and other documents on a certain date, it is best to calculate everything in advance and discuss it with the director.

By abbreviation

After making a decision to reduce staff, the employer issues a corresponding order, then no later than 2 months before dismissal, he is obliged to notify employees about this by means of a written notice, which is given to each of them against signature. The same document must indicate other positions to which they can, if desired, transfer.

With and without processing

According to Art. 80 of the Labor Code of the Russian Federation, an employee who resigns at his own request is obliged to notify his employer about this 2 weeks before the expected date of dismissal. At the discretion of the manager, the employment contract can be terminated both after work and directly on the day of submission of the application. It is worth noting that the calculation of the period begins the next day after the warning, i.e. if an employee submitted an application on September 1, then the countdown will only begin on the 2nd of this month, and the date of dismissal will be considered September 15.

There are cases when an employee can quit without working: for example, if he entered a university and is unable to continue working. This also includes retirement or health problems, and then the employer is obliged to terminate the employment contract within the period specified in the employee’s application.

An employee can also quit without working by concluding an agreement with the employer; moreover, this method of terminating an employment contract has a minimum of nuances and is more beneficial for both the employee and his employer:

• The employee has free time to do his own thing or look for a new job.
• The manager can easily get rid of a negligent subordinate; moreover, the agreement is invalidated only with the consent of both parties, which eliminates the possibility of the unwanted employee returning to the organization.
• Compensation payments to an employee are made only at the request of the director; in other cases, he must only transfer wages and compensation for unused vacation. If a subordinate goes on vacation with subsequent dismissal, then he is entitled only to vacation pay.
• The agreement can be drawn up in any form, since it is not regulated by law.
• You can dismiss an employee by agreement even when he is on vacation or sick leave. In other cases, without agreement, termination of the employment contract will be considered unlawful.

In case of liquidation and bankruptcy

If a special commission made a decision to liquidate the enterprise, then employees must be notified of the upcoming dismissal no later than 2 months in advance. When employed in seasonal work, this period is reduced to 1 week, and those with whom employment contracts are concluded for a period of up to 2 months must be notified at least 3 calendar days in advance. In this case, the last working day will be considered the date of dismissal.

After all deadlines have expired, the manager issues orders to terminate the employment relationship, and he is obliged to familiarize each employee with them against signature. In the future, it is necessary to make an appropriate entry in the work book and pay on time all compensation due to each employee upon dismissal in connection with the liquidation of the company. If this is not done, dismissed employees may file a claim in arbitration court, which will cause a lot of trouble for the former employer.

On sick leave before dismissal

Labor legislation under no circumstances allows the dismissal of an employee at the request of the manager while the former is on sick leave, because this is considered a violation of his rights and legal norms. Another thing is termination of the employment relationship at the employee’s own request: in this case, he can quit even if he has a certificate of incapacity for work. There are two scenarios here:

• The employee writes a letter of resignation and goes on sick leave, but manages to recover before the date of termination of the employment relationship. In this case, the manager is obliged to dismiss him on the date specified in the application, and the subordinate works the remaining days after leaving sick leave.
• The employee goes on sick leave and leaves it 1 day before the date specified in the resignation letter. In such a situation, the employer is obliged to pay for the certificate of incapacity for work and dismiss the subordinate on the day indicated in the application previously submitted by him.

On vacation followed by dismissal

If the termination of the employment relationship occurs not through the fault of the employee, but at his request or by agreement of the parties, then he has the right to take leave with subsequent dismissal. The paperwork procedure is very simple: first, he submits a resignation letter to the employer, indicating the reason and date of termination of the employment relationship, and then an application for extraordinary leave, indicating its duration in calendar days and the date from which he plans to go on vacation.

The employee did not return from absenteeism

Systematic absenteeism is a valid reason for terminating the employment relationship at the initiative of the employer, but before drawing up the order, he must establish that the subordinate is actually missing work without a good reason. If it was revealed that the employee was absenteeism, and the manager decided to fire him, then he signs the corresponding order, in which the working day that preceded the first day of absenteeism is indicated as the date of dismissal.

There is a second option: the day of dismissal can be considered the date the order was drawn up, and logically such actions are more justified:

• An employer cannot dismiss a subordinate on his own initiative without finding out the reason for absenteeism. If absences from work are justified, then the subordinate is obliged to provide the relevant documents: a medical certificate, a certificate of summons to a session, etc. The issue of punishment can be decided individually, since even when going on sick leave, the subordinate is obliged to notify his employer about this.
• If the employee is dismissed on the last working day, it turns out that after that the employee did not have an employment relationship, which means that he did not actually miss work. If desired, the dismissed person can safely challenge his dismissal in court, but legally the employer will still be in the right.

Date of application and dismissal

According to labor legislation, the last working day will be considered the date of termination of the employment contract. Do I need to work on the day of dismissal? Of course, it is necessary, because only from the next day the employee’s work duties will cease. If the dismissal occurs at the initiative of the employer or it is possible to reach an agreement with him by concluding an agreement, then he can release his subordinate from work on the day of departure.

Thus, the date of dismissal and the last working day are two inextricably linked concepts, because in fact, the employment relationship ends on the day when the employee, in accordance with the employer’s order, must go to work for the last time, after which he picks up the work book and other documents.

As for whether the day of dismissal is paid, everything is clear here: according to Art. 84.1 of the Labor Code of the Russian Federation, the date of termination of the employment contract should be considered the last day of work of the employee. Accordingly, payments for it are made in the same way as for all previous times.

Order of dismissal

One of the main documents - the dismissal order - is drawn up on the basis of an application from the employee, or if there are reasons for which the initiative to terminate the employment relationship may come from the employer. The legislation establishes a single unified form, and a sample can be used to fill it out. The order must contain the following information:

• Name of the organization.
• Number and date of compilation.
• FULL NAME. the person being dismissed, his position.
• Grounds (reasons) for termination of an employment contract (link to article of the Labor Code of the Russian Federation): conclusion of an agreement, statement of resignation of one’s own free will, memorandum, etc.
• Manager's signature.
• Signature of acquaintance from the person being dismissed.

After drawing up the order, a corresponding entry is made in the employee’s work book, and then the final payment is made.

Recording in labor

The work book is usually filled out by HR department employees, and the following information must be included in it upon dismissal:

• Serial number, date, month and year.
• Information about the reasons for dismissal with reference to an article in the Labor Code of the Russian Federation.
• The name of the document on the basis of which the employment contract is terminated (Order, its number and date of preparation).

It is worth noting that these entries must be made on the day of dismissal under the Labor Code of the Russian Federation, and then they are certified with a signature and seal by an employee of the HR department, after which he makes a copy of the work book and sends it to the archive, and also enters the information into the accounting book.

Knowing everything about the day of dismissal - how to count, how the work book is filled out, what date is the last working day - both the quitter and the employer can easily carry out the procedure for terminating the employment relationship, which, if you do not know such nuances, raises a lot of questions and difficulties.

Legislatively, all issues related to labor relations are reflected in the Labor Code of the Russian Federation. An important topic regulated by the Labor Code of the Russian Federation is the procedure for performing the procedure and the last working day upon dismissal.

Completion may take anywhere from a few days to two weeks, depending on some specific circumstances.

What day is considered the day of dismissal?

The final date, which is the last working day, is calculated from the date of submission of the application. In a standard situation, two weeks are allotted for working out after the declaration of intentions, Article 77 of the Labor Code of the Russian Federation. The day of dismissal of an employee is considered, according to Article 80 of the Labor Code, the day calculated after filing the application, taking into account two weeks of work. The employee writes a standard application addressed to the head of the enterprise, which is recorded in the personnel department. This day is considered the first day of a two-week work period. The document written by the person resigning must indicate the last day of work.

A citizen has the right not to go to the workplace after the expiration of the legal period; during judicial and supervisory consideration of the dispute, the rights will be on his side. In this case, the application must not contain errors or inaccuracies so as not to provide grounds for revision. The law allows you to shorten the term of service with mutual agreement between the manager and the resigning employee.

It is possible to set a specific dismissal date other than the standard one if this is dictated by objective necessity. For example, enrolling in studies, moving to another area, or transferring a military spouse.

If an employee is not fired by order of management, an application is not required. There is no talk of mandatory service; the management in the order indicates the date of termination of the bilateral agreement for the specified reasons. According to Article 14 of the Labor Code of the Russian Federation, work begins on the next day after the application is submitted, and the countdown of the work period is formed from it.

The day of dismissal is considered a working day and is included in the count if a citizen leaves at his personal request or by order of his superiors. The question often arises whether the day of dismissal is a working day or whether it is included in the calculation when it falls on a weekend or holiday. In this situation, the last date of work is recognized as the last pre-holiday or first working day after the day off.

If a person was on regular vacation, then dismissal occurs with his personal consent, reflected in the application or on the day of leaving vacation. It is impossible to fire a person without notice; the calculation date will be the last day of vacation or the first day upon return to service. In such a situation, the dismissed person must be given a completed work book and a full financial settlement must be made for the last day of vacation, Article 127 of the Labor Code of the Russian Federation.

The day of dismissal and the working day may not coincide if the dismissal occurs on the initiative of management. In case of absenteeism and failure to go to work without good reason, the citizen is fired under the appropriate article and the last day of pay is the date of last attendance at work. It is impossible to part with a person on sick leave without his consent. You can dismiss by order after returning from sick leave, if there are grounds and an order from management, the day of dismissal is the last work shift, Article 81 of the Labor Code of the Russian Federation.

Registration of calculations in the work book

Termination of an employment agreement occurs on the personal initiative of the citizen or by decision of management. In the first case, a statement is written, in the second situation, an order is issued reflecting the reason for the decision to part with the employee ahead of schedule. The reasons can be of various types, from, to violation of internal regulations or failure to fulfill official duties. Based on the order, the enterprise’s accounting department makes the final financial calculation, and the HR department makes an entry in the work book.

If the employee has not transferred his duties to another person, or the assigned tasks have not been completed, there is no reason to detain him beyond the deadline. The employee must be familiarized with the order or order of the manager against signature. In case of refusal, a corresponding note about familiarization is made in the act. entered on the last working day indicating the date and reason for dismissal.

The employee has the right to request the information he needs for subsequent employment, which the HR department must notify.

The entry in the work book must indicate the standards of the Labor Code of the Russian Federation, be clearly formulated and have no discrepancies. The document is issued in person on the last day of work upon dismissal; in the event of the citizen’s absence, it is sent by registered mail to the address indicated by him.

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.

An employment contract is terminated unilaterally (at the initiative of the employee or employer) or bilaterally (with the consent of both parties to the legal relationship). The dismissal of an employee is often due to factors independent of the will of the parties (for example, moving to a new place of residence, conscription into the army, etc.).

The procedure for terminating an employment contract can take up to several weeks. Both parties – the employee and the employer – should know whether the day of dismissal is considered a working day or not. Thus, the current legislation does not stipulate that on the day of dismissal an employee must perform the labor function assigned to him.

Date of dismissal and terms of service

In order for the employment contract to be terminated at the request of the employee, he needs to draw up a corresponding statement (he can indicate in it the reason for his decision). From the moment it is submitted to the employer for consideration, the employee must work for 14 days so that a replacement can be found in his place.

If the dismissal was initiated by the employer, then the employee does not file a statement. He is not required to work a 2-week period. In case of bilateral termination of the contract, the duration of the work and its necessity can be discussed between the employee and management.

The dismissal procedure involves the publication by the employer of a corresponding order, two-week work (at the initiative of the employee upon termination of the contract), payment, and issuance of a work book. In this case, the date of dismissal is considered the last working day, even if the employee did not actually perform his duties.

Last day of work duties

Art. 84.1 of the Labor Code of the Russian Federation stipulates that an employee ceases to perform a labor function on the day of termination of the employment contract. Interestingly, the employee may be absent from the workplace (i.e., as mentioned above, not perform work duties).

Let's consider the situation using a simple example: a mechanic works at a factory every three days. His dismissal date is today, but his last shift was yesterday. Consequently, the employment contract with him is terminated, but the day of its termination is not actually a working day.

Interesting information

According to the law, the required period of time between filing an application and the date of dismissal is set at 14 days (you can notify earlier). This must be done in writing by writing a letter of resignation of your own free will. It must be given both to the office (HR department, accounting department, secretary) of the organization, and sent to the company by mail.

On the last day the employee performs his job function:

• A work book is issued;
• Copies of the requested documents are issued;
• The final payment is made.

Possibility of dismissal on a day off

It is a common belief that the day of dismissal of an employee is considered a day off. This is an erroneous judgment, since, in accordance with the appeal ruling of the Moscow Regional Court of 2013, such an action by management is a violation of the right of a citizen resigning at his own request to withdraw his application within 14 days after its submission.

It is important that the current legislation does not directly indicate the impossibility of dismissal on a day off. However, court decisions are always made in favor of employees whose right to withdraw an application is violated. Some employees deliberately indicate a non-working day when compiling it. In order for management to avoid subsequent legal proceedings, it is recommended to contact the employee with a request to set the correct day of dismissal.

The need to work on the last day

If the day of dismissal of an employee is a working day, then he must perform his job duties in the general manner. Their improper performance or refusal to perform a labor function on the date of termination of the employment contract is grounds for imposing a disciplinary sanction. One of its forms is dismissal at the initiative of the employer (in other words, “dismissal under an article”).

If the employee does not intend to go to work and is absent for a long period of time without good reason, the day of dismissal will be considered the last day of his work before absenteeism.

There are examples where employees do not go to work on the day of dismissal, which subsequently leads to labor disputes. If you made a mistake in the calculations and did not fulfill your labor function (for example, did not show up for work), then in order to prevent a conflict with management, it is recommended to agree with the employer to work off the missed day at another time.

If you have questions, write in the comments

The last working day upon dismissal is the date on which the employer is obliged to fully provide the calculation and all documents to the employee terminating the employment contract. It is this date that appears in the order and is recorded in the work book. How to determine it correctly?

There are several controversial issues in the procedure for dismissing employees, which often cause difficulties for personnel officers. One of these questions is: is the day of dismissal considered a working day? Let's figure out what labor legislation says about this.

Determining the date of dismissal

The procedure for terminating an employment contract begins if:

• the employee wrote a statement of his own free will;
• the employer issued an order to reduce staff;
• the employer decided to dismiss the employee for disciplinary misconduct or due to loss of trust;
• the employee and the management of the organization entered into an agreement to terminate the employment relationship.

But the reason for termination of the employment contract and the primary document do not play a role. By virtue of Article 84 of the Labor Code of the Russian Federation, the date of dismissal is considered the last working day in the organization. The only exceptions to the norms of this article are those situations in which the dismissed person was absent from work: he was sick or was on vacation, but his job was retained. However, formally in this case too, answer the question “will the day of dismissal be considered a working day or not?” Possibly positive.

The only difficulty is to correctly indicate in the documents that the day of the employee’s dismissal is a certain date.

Work and payment on the last day

Since the day of dismissal of an employee is considered a working day, except in certain cases, he must be at work and perform his official duties as usual (if he is not on vacation). Management is obliged to pay all payments due to the employee, which include:

• salary for hours worked;
• vacation pay and compensation for unspent vacation from previous periods;
• severance pay (if provided);
• other compensation payments.

Also, the person must be given a work book, in which the corresponding entry must be made.

Standard cases and terms of termination of the contract

Application at your own request

If an employee decides to resign on his own, then by law he is required to notify management about this two weeks (14 calendar days) in advance. In addition, the application for termination of the contract itself usually indicates the day of dismissal. However, employees often have doubts whether the day of dismissal is considered a working day or not. The Labor Code specifies: the last working day is considered to be exactly the date that falls on the last day of such warning.

By virtue of Article 14 of the Labor Code of the Russian Federation, the warning period should begin to count the next day after submitting an application to the company’s personnel service. If, for example, an employee wrote a statement and submitted it to his superiors on December 1, then he must indicate December 15 in it. This will be his last day at work. It is important to clarify that in the application you need to avoid the preposition “with”: you need to write not “I ask you to fire me on December 15,” but simply “to fire you on December 15.” This will make it easier for the personnel officer to navigate when drawing up an order, and the inspectors will not have any unnecessary questions. In addition, this wording serves as protection against discrepancies in the understanding of what day the last working day falls on in the course of possible disputes between employees and employers.

Agreement of the parties

If the parties decide to terminate the employment contract by mutual consent, they also draw up a separate document about this. In this situation, there may be no two-week working period, and any day convenient for both parties for completing professional duties and terminating the employment contract can be chosen. This is what should be indicated in all documents.

If the day of termination of the employment contract falls on a weekend

It happens that the date indicated in the application, on which the end of the two-week warning period falls, falls on a weekend or non-working holiday. In this case, the norm of Article 14 of the Labor Code of the Russian Federation applies: a person can finish work only on the next day following a weekend or holiday. This is the position of Rostrud, but there is another position, according to which it is possible to issue calculations and documents the day before.

However, this rule does not apply to shift work, when the employee was scheduled to work at this time. In this case, as Rostrud indicated in letter No. 863-6-1 dated June 18, 2012, the person must be settled on the agreed day without any transfer of deadlines. However, a problem may arise here: the resigning employee’s shift may fall on a Saturday or Sunday, when the accounting department and personnel are on vacation. Then the employer will have to call the accountant and personnel officer to work on their day off and subsequently compensate for such an exit, as required by the Labor Code.

Dismissal during vacation or sick leave

Dismissal at the initiative of the employer while the employee is on vacation or sick leave is prohibited. If he wrote a statement of his own free will, there are no legislative obstacles.

The norms of Article 84 of the Labor Code of the Russian Federation provide that if an employee was absent during the termination of relations with the employer for a good reason - for example, he was on vacation - then the last working day is determined differently:

1. If this date falls on the day when the person fell ill and received a certificate of temporary incapacity for work, and he was fired at the initiative of the employer, this will be the nearest weekday after leaving sick leave. By the way, this is a comprehensive answer to the question: can someone be fired on sick leave? They can’t do it while on sick leave, but immediately after it closes, please. If the employee wrote an application to terminate the contract at his own request or by agreement of the parties, during the termination of the employment relationship he may also be on sick leave.
2. If an employee received leave with subsequent dismissal, then the day of dismissal of the employee is the final day of his leave.

Termination of an employment contract during a business trip

The law does not directly prohibit dismissing an employee on the last day of a business trip, but it is recommended to make sure that he can still be at work - to receive a work book, other documents and a full payment (including compensation for vacation not taken). Otherwise, unwanted complications are possible.