Sick leave for dismissal of your own free will. Dismissal during sick leave

The Labor Code of the Russian Federation provides for various: at the initiative of the employer, at the initiative of the employee, by agreement of the parties, etc. (Article 77 of the Labor Code of the Russian Federation). During a period of temporary incapacity for work, an employee can also be fired. But not in all cases.

Dismissal during sick leave at the initiative of the employer

The employer is not entitled to dismiss an employee with whom an open-ended employment contract has been concluded during a period of temporary incapacity for work. An exception is the case when the organization is liquidated or the entrepreneur-employer ceases to operate (Article 81 of the Labor Code of the Russian Federation).

But if an employment contract was concluded with an employee for a certain period, and this period expires during the employee's illness, then dismissal on sick leave is possible. At the same time, despite the absence of an employee at work, he will still need to be notified in writing on the upcoming dismissal due to the expiration of the contract in at least 3 calendar days (Article 79 of the Labor Code of the Russian Federation). To do this, you can, for example, send him a message by mail.

On the date of dismissal of an employee who is on sick leave, it will be necessary to issue an order, make a record of the dismissal in the employee's work book and in the personal card (Article 84.1 of the Labor Code of the Russian Federation). And also transfer wages and other payments due to the employee for bank card... On the order, a note must be made that the employee is not familiar with it due to his absence from work on the day of dismissal. In addition, it is necessary to send a notification to the employee that he must pick up the work book or may agree to receive it by mail.

Pay sick leave the employee will need after he submits it to the accounting department. In this case, the temporary disability benefit must be paid for the entire period of illness of the employee, taking into account his length of service (part 1.4 of article 6, part 1 of article 7 of the Law of December 29, 2006 N 255-FZ). The norm on limiting benefits based on 60% of average earnings is not applied, since temporary incapacity for work occurred before the date of dismissal (part 2 of article 7 of the Law of December 29, 2006 N 255-FZ).

Dismissal on sick leave of your own free will

Dismissal by on their own during sick leave - a life situation. Suppose an employee wrote a letter of resignation and then fell ill. The employer has the right to fire him during sick leave, because in this case, the contract is terminated on the initiative of the employee (Article 80 of the Labor Code of the Russian Federation).

At the same time, the dismissal of an employee who is on sick leave must be issued on the date indicated in the application, or the date on which the last day of the two-week “working off” of the employee falls (Letter of Rostrud dated 05.09.2006 N 1551-6).

Dismissal of an employee on sick leave by agreement of the parties

Frequent question on the HR forums - how to fire an employee on sick leave. Since dismissal during sick leave at the initiative of the employer is unacceptable, dismissal remains by agreement of the parties. Indeed, on this basis, the contract can be terminated at any time (Article 78 of the Labor Code of the Russian Federation).

The employee benefits from the fact that in addition to wages and compensation for unused vacation the agreement may provide for the payment of severance pay to him. Its size is limited only for employees holding certain positions: managers, their deputies, chief accountants (Article 349.3 of the Labor Code of the Russian Federation). In other cases, a specific amount is established by agreement between the employee and the employer.

When dismissing by agreement of the parties during sick leave, it is extremely important to obtain written consent from the employee to such dismissal. Confirmation that consent has been obtained can be both the agreement itself, drawn up before the date of dismissal and signed by both the employee and the employer, and the employee's statement of consent to terminate the contract by agreement of the parties.

We provided the form of the form and a sample of filling out an application for dismissal of an employee on sick leave.

(in other words, at the initiative of the employee) is one of the most common grounds for termination employment contract... Termination Initiative labor relations comes from the employee and does not imply its approval by the employer, because you cannot force a person to work against his will. However, even upon dismissal of one's own free will, certain rules must be followed.

The procedure for dismissal of your own free will

The procedure for dismissal of your own free will involves, first of all, the writing of a letter of resignation by the employee. The application specifies the date of dismissal and its basis ("of their own free will"), it must be signed by the employee indicating the date of drawing up.

Indicate in the application reason for dismissal of your own free will not necessary. However, if circumstances require you to resign, then the reason must be indicated, in addition, personnel service employees may be asked to document it. In other cases, the phrase "I ask you to dismiss me of my own free will on such and such a date" is enough.

After the letter of resignation is submitted to personnel service, compiled dismissal order. Commonly used uniform form such an order (), approved by the decree of the State Statistics Committee of 05.01.2004 No. 1. In the order, it is necessary to make a reference to the Labor Code of the Russian Federation, as well as provide the details of the employee's application. The employee must be familiarized with the order of dismissal against signature. If the order cannot be brought to the attention of the dismissed person (he is absent or refused to familiarize himself with the order), then a corresponding entry is made on the document.

Terms of dismissal of your own free will

By general rule, enshrined in, the employee must notify the employer about the upcoming dismissal no later than two weeks in advance. The course of this period begins the next day after the employer receives the letter of resignation.

However, the so-called two-week work period can be reduced by agreement between the employee and the employer. In addition, the law does not oblige the employee to be at the workplace during the term of the notice of dismissal. He can go on vacation, sick leave, etc., while terms of dismissal will not change.

There are legislative exceptions to the general rule about two-week work. So, upon dismissal during the trial period, the notice of dismissal is three days, and upon dismissal of the head of the organization - one month.

Calculation upon dismissal of your own free will

Calculation upon dismissal of your own free will, as well as on other grounds, must be made on the day of dismissal, that is, on the last day of work. Calculation of severance involves the payment of all amounts due to the employee: wages, compensation for unused vacations, payments provided for by the collective and labor agreement. If the dismissed employee used the vacation in advance, the paid vacation pay is recalculated, the corresponding amount is deducted from the salary during the final calculation.

If the employee was absent from work on the day of dismissal and could not receive a payment, he has the right to apply for it at any other time. The amount due to him must be paid no later than the next day after the application.

Dismissal of your own free will during the vacation period

Quit voluntarily while on vacation the law does not prohibit. Such a prohibition is provided only for dismissal at the initiative of the employer. The employee has the right to write a letter of resignation while on vacation, or to attribute the date of the alleged dismissal to the vacation period.

If an employee wants to apply for dismissal while on vacation, it is not required to recall him from vacation.

Also, an employee can resign of his own free will after using the vacation. Note that the provision of vacation from subsequent dismissal- this is a right, not an obligation of the employer. If such leave is granted, the last day of the leave is considered the day of dismissal. However, for the purposes of settlements with the employee, the last day of work in this case is the day before the start of the vacation. On this day, the employee should be given a work book and all the necessary payments should be made. This is a kind of exception to the general rule given, it is confirmed.

Dismissal of their own accord during sick leave

Quit voluntarily while on sick leave can. prohibits such dismissal only at the initiative of the employer.

An employee has the right to apply for dismissal during a period of temporary incapacity for work. Also, a situation may arise when the previously agreed dismissal date falls on the sick leave period. In this case, the employer will issue the dismissal on the day specified in the application for dismissal, provided that the employee did not withdraw this application. The employer does not have the right to independently change the date of dismissal.

On the last day of work, even if it falls on the sick leave period, the employer makes the final settlement, issues a dismissal order, in which he makes a note about the absence of the employee and the impossibility of acquainting him with the order. Per work book the employee will appear after recovery or, with his consent, it will be mailed to him. All amounts due to the employee will be paid to him

The period of temporary disability, or sick leave (common name) - the period of time during which the employee is not at the workplace because he has health problems.

According to current legislation while the employee is sick, average earnings, but not in full: if the work experience is less than six months, then based on the minimum wage, if less than 5 years - 60% of earnings, from 5 to 8 - 80%, and he can count on one hundred percent average earnings after 8 years of work (work experience is considered in total, and not from a specific employer).

The first three days of illness are paid by the employer, the rest is paid by the Social Insurance Fund (with the exception of the sick leave for pregnancy and childbirth, the entire social insurance coverage is paid). In practice, management often faces the question: is it possible to fire an employee during his illness?

At the initiative of the employer

Many workers fear that management will fire them due to prolonged illness. Fears are in vain - the company cannot lay off an employee who is on sick leave.

Moreover, if a person wrote a letter of resignation and fell ill on the same day, the employer's right to two weeks' work is not extended - even if he was sick for two weeks.

Article 81 Labor Code The Russian Federation prohibits an employer from dismissing people during their vacation or illness.

If the organization violates the provisions of the code, then the court recognizes the employee as a victim, reinstates him at work, and the company will be fined (for executive- at least 2 thousand rubles, and for the company as a whole - at least 50 thousand rubles) and payment to a person for forced absenteeism.

However, there is a situation in which a sick employee may lose his job, even being against it. When or, all workers, both healthy and sick, lose their place of work. To pay for the incapacity for work sheet, in this case, you need to contact the FSS.

At the request of the employee

If the parties decide to disperse, then this can be formalized either as dismissal by agreement of the parties, or of their own free will. In this case, what are the rights of the employee and the obligations of the employer?

An employee who decides to quit being temporarily disabled should not wait until the end of the sick leave to write a letter of resignation. By mutual desire, the employer and the employee can sign an agreement - in this case, the employer is protected from possible accusations that he forced the subordinate to write.

The worker, two weeks before the date of leaving, warns the manager of the desire to leave the job. However, the final settlement with him is made only after recovery and the provision of a closed certificate of incapacity for work. The company's accounting department calculates sick leave payments and.

The organization must pay sick leave for the entire period of the illness, including after the dismissal of a person.

Moreover, if a healthy retired employee is sick within 30 days after leaving the company, she must pay him sick leave based on 60% of average earnings(Part 2 of Art. 7 FZ-255 "On Temporary Disability"), provided that he has not found a new job during this time. The employee has the right to payment for 6 months after the end of the illness (according to the certificate of temporary incapacity for work).

If the company does not want to part with valuable employee, then at the time of his temporary incapacity for work, you can hire another worker, having stipulated this fact in the employment contract. This is not prohibited by law - provided that both parties to the employment contract are satisfied with this.

You can glean some of the nuances of this process from the following video:

Calculation of benefits and registration of the procedure

Let's consider this procedure using an example. Employee Smirnov in August 2015 went on vacation for 28 calendar days and on the very first day I got sick. During the examination at the hospital, it turned out that he had a serious illness that required surgical intervention. Deciding that he would not be able to work, he submitted a letter of resignation to the place of work of his own free will from September 1, 2015.

After the operation, Smirnov was discharged from the hospital on September 15, and the sick leave was opened on August 29. For 2013-2014, Smirnov earned 378,000 and 402,000 rubles, respectively, from of this employer... Insurance experience - 2 years. He did not work in other places in 2013-2014; he worked for the company full-time.

So, the number of days of incapacity for work is 18. Despite the fact that Smirnov decided to quit on September 1, the employer is obliged to pay him benefits after that date.

The amount of the allowance will be:

• (378000 + 402000) / 730 days * 60% (experience less than 5 years) * 18 days = 11,539.72 rubles.

Of these, the FSS will reimburse the company 9616.44 rubles, 1923.28 rubles will be paid at the expense of the company itself.

Do not forget to deduct personal income tax from the employee from the amount of hospital payments - in this case, the tax will be 1,500.16 rubles.

Thus, if Smirnov provides the company on September 16 with a sick leave, then no later than September 26, the accounting department must calculate his allowance and pay him on the next day on which the organization pays the salary.

He may not come for a work book, having submitted a statement that the document be sent to him by post with acknowledgment of receipt. And the company can transfer the payments to him on a bank card, or Smirnov will come for the money when he feels better - then the company will deposit his payments.

Dismissal must be documented at the enterprise by the following documents:

• an application for dismissal of his own free will from Smirnov with a permitting resolution from his superiors;
• certificate-calculation of the amount of sick leave;
• order for the payment of benefits;
• if necessary - Smirnov's application for sending labor by mail and an order for depositing payments.

Smirnov has the right to demand payment of his sick leave within six months after closing the certificate of incapacity for work.

The employed citizen has the right to terminate his employment relationship with the employer. Moreover, he must warn him about this 2 weeks in advance. And if a person is on sick leave, can he quit?

Is it possible to quit while on sick leave?

All grounds for termination of employment are provided in Art. 77 of the Labor Code of the Russian Federation. This also includes the employee's desire. But the employee is obliged to notify his supervisor 2 calendar weeks before the expected date of leaving. This is stated in Art. 80 of the Labor Code of the Russian Federation.

During this period, the employee may fall ill or go on vacation. The law does not prohibit this. But in any case, he must write a letter of resignation.

Letter of resignation while on sick leave

There is no statutory form of an application for dismissal of one's own free will, but it must be in writing, and in the following context:

1. In the upper right corner a "header" is written, which indicates:

• information about the employer - his abbreviated name, as well as the position and full name of the manager who is authorized to accept and sign such applications;
• information about the employee himself - his name, as well as position. If the enterprise is large, then the name can also be indicated. structural unit... You also need to provide contact information.

1. The "body" of the statement. Here you need to state a request to dismiss of your own free will. It is imperative to indicate the date - no earlier than 2 weeks after writing the application. This term is called working off.
2. Signature and transcript, as well as date of compilation.

It is impossible to indicate in the application the estimated date of the end of the illness!

- For more information on how to write a letter of resignation of your own free will.

Is sick leave included in working off?

An employee may fall ill during compulsory service. The employer does not have the right to force the employee to work, motivating his actions by the fact that the latter was on sick leave during work.

The sick leave is counted in the period of mandatory two-week work, even if it is closed after the employee is fired. In addition, the sick leave will be fully paid.

Is it possible to fire a person on sick leave?

If the employer wishes to dismiss his employee, he can only be guided by the grounds listed in Art. 81 of the Labor Code of the Russian Federation.

It also says that you cannot fire an employee who is on vacation or sick. Even if there are any violations on the part of the employee, it is impossible to dismiss him during illness.

As soon as the employee recovers and brings a certificate of incapacity for work, the employer can fire him. In this case, the sick leave is obliged to pay depending on the employee's insurance record.

Is sick leave paid?

The employer makes insurance contributions for each employee. Therefore, he is obliged to pay the sick leave, even if the employee quit.

However, Law No. 255-FZ says that during labor activity sick leave is paid depending on how long the employee has been insured.

After the dismissal, the employer is obliged to pay for the illness for another month, if the retired employee does not get a job with another employer. After dismissal within 30 days and upon presentation of a certificate of incapacity for work, sick leave is paid in the amount of 60% of the average earnings of this employee. For more information on sick leave payments after dismissal -.

To calculate payments for the sick leave, it is necessary to take into account his salary for the last 2 years. Since it is 2017, then for the calculation you need to take the employee's salary for 2015 and 2016.

For the calculation, all payments and remunerations from which they are paid are taken into account insurance premiums... If during this period the employee worked in another place, then you need to bring a certificate of income from the previous employer.

If the average earnings are below the minimum wage, then the calculation will be made based on this value. The same indicator is taken into account if the insurance experience is less than six months.

Dismissal video during sick leave

All the subtleties and rules for dismissing an employee during the period of his disability are detailed in this video:

The employer is obliged to pay the employee's sick leave, even if he quit during sick leave. If he insists on "vacation at his own expense" instead of payment, then thereby violates federal law. You can complain about such a manager to the labor inspectorate.

The employer has no right to dismiss an employee from his position during his disability for health reasons, on his own initiative. But, if the employee independently made the decision to leave work, then this is possible. Consider the main points of termination work activities employee during the period of incapacity for work.

How is sick leave paid upon dismissal of one's own free will?

If a person opened a sick leave upon dismissal of their own free will, being at that time an employee of the organization, it must be paid. This must be done despite the fact that by the time of its closure the employee no longer had an employment relationship with the employer.

The employee can bring the sheet even after the termination of the contract. If the date of its opening does not go beyond thirty calendar days after the date of dismissal, the company must make payments. Payment for sick leave upon dismissal of one's own free will is made in the amount of 60% of the average earnings.

It must be remembered that a citizen has the right to demand from an organization to pay a certificate of incapacity for work within 6 months from the day of recovery. In order to avoid fines, payment must be made.

Is it possible to open a sick leave on the day of dismissal of my own free will?

HR workers sometimes face a situation where a person gets sick on the last day of work. How to deal with this situation? If the initiative to terminate the employment contract comes from the employee, the termination of the working relationship with him during this period is possible. In this case, the employer will have to pay the employee a sheet. This rule applies provided that he did not start a new job.

If the employee managed to recover before the date of dismissal

Termination of the contract with the employee in this case occurs as follows:

if the employee managed to close the certificate of incapacity for work before the day of termination of the employment contract and went to work, he works out the remaining days. The employer will have to make payments on the allowance on the last day of the citizen's work.

if the employee left on the last day of work, the final settlement takes place after the presentation of the certificate of incapacity for work, which must be filled out and after that the employment relationship with the person must be terminated.

In accordance with the established procedure, an entry is made in the book and in the personal card about the termination of working relations at the request of the citizen, and all necessary payments are made ( wage, compensation for unused vacation and other payments stipulated by the contract).