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Vacation followed by dismissal per year.

Upon dismissal of an employee, the law provides for a two-week deadline for submitting an application. Execution job duties during this period is reduced to a formal transfer of affairs.

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At the same time, this situation interferes with the search new job, paperwork in a new place, leads to an unhealthy psychological climate in the team: idle curiosity, ambiguous hints, negative assessments. To avoid this, upon dismissal, you can use the employee's right to paid leave.

Relax before leaving

Vacation followed by dismissal is possible if the employee terminates the employment relationship under own initiative or by agreement with the employer. If the dismissal of the employee occurred on the grounds caused by his guilty actions provided for by law, it is not allowed to take a vacation.

It should be remembered that the legislation leaves it at the discretion of the employer to satisfy the employee's right to leave upon dismissal.

The employee must formalize his desire for vacation in writing. Upon written application, he can be granted both an extraordinary vacation and all previously unused vacation. The basis for dismissal may be the employee's own initiative, transfer to another employer, mutual consent of the parties.

If the dismissal of an employee takes place by mutual agreement, then the entire procedure is governed by the agreement. In this case, the vacation application is written separately. In all other cases, the granting of leave can be combined with the dismissal procedure.

Vacation registration with subsequent dismissal

The employee submits two applications: for dismissal indicating the date and reason for the termination of employment and for providing extraordinary leave with the indication of the date, terms in calendar days. This vacation will be a vacation followed by dismissal.

Moreover, the employee in this case is not obliged to adhere to the vacation schedule, and the number of vacation days may not correspond to the next annual vacation.

In this case, the amount of leave may be equal to all previously unused vacations.

In the case of an application for termination of employment, an agreement is drawn up on such termination and only after that the employee applies for a vacation. If the dismissal of an employee is carried out for other reasons, then instead of an agreement, the employee is provided with a notification (for example, change of ownership, reduction). After the employee agrees to his dismissal by signing the notice, he draws up a vacation application.

As for the further stages of the procedure, they are absolutely identical, regardless of the basis on which the employee is dismissed.

Stages of the procedure for dismissing an employee with subsequent vacation:

Receipt of a corresponding statement from the employee.
After the application is signed, the employee is notified in writing against signature of the start time of the vacation.
A corresponding order is issued.
The document is registered in the journal.
The employee is introduced to the document against signature.
A settlement note is drawn up.
The employer signs the order to dismiss the employee.
The order is registered in the register of documents.
The employee reads the letter of dismissal against signature.
A settlement note is drawn up, on the basis of which the settlement with the employee is carried out.
Payments to the employee.
A corresponding entry is made in the work book and at the same time in the account card.
Issuance to a dismissed employee work book.
Issuance of income certificates.

Statements

The vacation application is submitted simultaneously with the dismissal application and is drawn up in any form. The vacation application must indicate the dates and dates, as well as the quantity calendar days.

But it is best to submit one application of this pattern:

The application must include the grounds for termination of the employment relationship, as well as the date of dismissal. The document is signed by the employee with his own hand, and it must be dated. After that, it is transferred to the employee. personnel service.

Make sure they are registered in the incoming log with the date stamped.

This may be necessary if the decision to meet the employee's requirements will take a long time.

If a two-week period has passed since the registration of the applications, the employee's requirements must be satisfied automatically. Provided that with respect to this employee the procedure for dismissal has not been launched for reasons related to theft, negligence towards the owner's property or other culpable grounds.

The statement is superimposed on the resolution of the immediate supervisor structural unit employee and head of the organization. As a rule, the resolution of the head of the department is affixed before the registration of applications, after which they are submitted to the head. If the resolution is positive, the execution of orders begins. If the resolution is negative, the employee reserves the right to receive compensation for previously unused vacations.

How to determine the dates correctly?

It is generally accepted and enshrined in law that the date of dismissal of an employee falls on the last day of vacation, and the date of actual termination of duties by the employee is the day before the first day of vacation.

When calculating vacation dates, it is important to pay attention not only to the time, dates and dates directly regulated by law, but also to the date of preparation of documents, their acceptance and registration in the corresponding registration logs, and also to take into account the dates falling on holidays and weekends.

All this can help both pre-trial settlement disputes and during the trial. Such cases are very often encountered when the parties disagree on the amount and terms of payment.

Keep a record of the timeline for accepting your applications and the date on which the corresponding entries are made in the journal. If a decision on the employee's application has not been made for a long time, then after the expiration of a two-week period, all the requirements set forth in it are considered subject to satisfaction. This situation usually develops when an application is submitted on long holidays ( New Year May holidays), and the manager takes an early pre-holiday leave. In this case, the employer refers to the date the application was made in the register.

The dates of the documents on the basis of which the employment relationship is terminated are of great importance. In the event that the dismissal of an employee is carried out on the basis of a notice, the date of the notice must be earlier than the date of the application for dismissal. Otherwise, the employee is considered to be on vacation and is not subject to dismissal, since the deadlines provided for by law cannot be met. The situation is similar in the case of an agreement on termination of employment.

Thus, when leaving, you need to pay attention to the following dates:

acceptance of applications for leave and dismissal of a personnel worker;
registration of applications for leave and dismissal in the register;
an employee's vacation order;
an order to dismiss an employee;
date of receipt of vacation pay;
the date of final settlement upon dismissal;
the date of termination of the employment relationship entered in the employee's work book.

At the same time, the date of registration of orders does not play a big role, since it refers to the internal documents of the enterprise and is necessary only for the accounting system and document management. But the very fact of registration of these documents is very important.

If the relationship is terminated on the employee's own initiative, the vacation order is issued simultaneously with the dismissal order. The date must be earlier than the deadline for payment of vacation pay, since it is the basis for such payments. That is, the order must be issued no later than three working days before the vacation. The dismissal order may be issued later than this period, but the employee must be familiarized with its text against signature. That is, before you actually go on vacation.

The timing of the payment of vacation pay and the final settlement with the employee is regulated by law. Vacation pay is due no later than three working days before the start of the vacation. Final settlement is made on the last actual business day.

Orders

If the employee's right to leave with subsequent dismissal is satisfied, at the request of the legislation, two documents are issued: an order for an employee's leave and an order for dismissal. It will not work to combine them due to the developed standard forms and samples. However, the legislation does not prohibit the execution of these documents with the same date.

The date of registration of these two documents must not be later than the start date of the leave of the employee to be dismissed.

The order for granting leave to the employee must comply with the T-6 or T-6a form. It indicates the type of vacation (regular, annual without maintenance) terms, date, number in calendar days, since the employee can receive compensation for part of the vacation

The dismissal order must be executed in the form of T-8 and T-8a. The document must correctly indicate the basis for dismissal - at the initiative of the employee, since the law stipulates that the dismissed employee can terminate the contract before the expiration of the dismissal period. The date must be indicated and a note is made about the dates of such a date.

The orders must contain all the details of the documents: number, date, the signature of the head. All orders must be registered in the document journal.

But it will not be a violation to issue one order, which reflects both procedures. An example of such an order:

Filling out the work book

When an employee is dismissed, all records made in it are certified by the signature of a representative of the organization, as a rule, it is a personnel worker, certified by the seal of the organization and signed by the dismissed employee. The last entry on the termination of labor relations is made, indicating the grounds, the date is put down - the last day of the vacation, the signature of the authorized person, the seal of the organization, as well as the signature of the employee himself are put.

At the same time, the corresponding entry is entered into the employee's record card.

When to give the work book? You can issue a work book on the last day of vacation or before vacation. In this case, if the employee picks up the application for dismissal within two weeks of the subsequent vacation, the employee's dismissal entry in the work book is considered invalid. The corresponding mark is entered in the work book

Money question

When an employee is issued a vacation with subsequent dismissal, the following material issues are subject to settlement:

the procedure for calculating vacation pay;
calculation of the number of vacation days;
amount of compensation for all previously unused days;
wage arrears for all elapsed periods labor activity an employee at this enterprise;
source of payment to the employee of settlement, vacation and compensation payments;
taxation wages employee for the last billing period;
the amount and procedure for deductions from wages, if any;
the amount of sick leave payment in the event that during the vacation period the employee has issued sick leave.

The legislation does not contain references on the amount of such leave and the procedure for calculating vacation pay. An employee who has not worked in the organization for a year is entitled to leave in full - 28 days... Such a right arises for an employee during continuous work in the organization after 6 months.

If leave upon dismissal is provided in full, then not in all cases it will be possible to withhold funds for unworked vacation days in the final settlement.

In this case, the employer tries to provide leave for the employee actually worked in the organization of time. Based on this, the employee is entitled to 2.33 calendar days of vacation for each actually worked month. In this case, surpluses in the amount of less than a month are rounded down, and periods of more than a half month are rounded up to the full value.

Payments and compensation

In case of vacation with subsequent dismissal, the employee is subject to payment and compensation for the amounts of accrued vacation pay, wages for the last working month, wage arrears for previous periods, monetary compensation for previously unused vacation days.

The calculation is carried out based on the continuous actual hours worked.

The relevant data is indicated in the payment card, which is filled out by an employee or employee of the personnel department and submitted to the accounting department.

Payments are made based on the employee's average monthly income accrued over the past three months.

Taxation

When an employee is dismissed to calculate personal income tax, the date of actual receipt of income by the employee is the last day when the income was accrued to the taxpayer. This must be taken into account if the settlement with the employee was made from Money at the cash desk of the organization.

In this case, the law retains the obligation for the employer to transfer personal income tax, accrued and deducted from the estimated amount of the dismissed employee, no later than the next day.

In case of leave upon dismissal, the employer must transfer the amount of personal income tax to the budget no later than the first day of leave of the dismissed employee.

When to calculate?

When an employee is granted leave with subsequent dismissal, vacation pay, compensation for previously unused days, if the employee did not take all leave, calculated for the last working month, as well as other payments provided for by law, are subject to payment. In the event that the employee is in, the days on sick leave are not counted, but the employee receives a refund on the sick leave.

Vacation funds are payable three calendar days before the onset of the vacation. This is the deadline.

The final calculations are made on the last day of the actual performance by the employee of his job duties, that is, on the day preceding the day of the start of the vacation.

Terms of settlement with an employee:

payment of vacation pay - no later than 3 days before the start date of the vacation;
payment according to the payroll - no later than the last day actually worked by the employee;
other payments and compensations, including those related to wage arrears - until the day of dismissal, that is, until the end of the vacation;
tax deductions (personal income tax) - if the employee is calculated from the cash of the organization no later than the next day after the settlement day.

What are the advantages and disadvantages of the situation?

Vacation followed by dismissal provides an undoubted advantage to the employee.

Employee benefits

For the period of vacation, despite the dismissal, the employee retains all the rights of an employee of the organization.
The vacation period is included in the work experience.
The employee retains the right to paid sick leave during the vacation period.
The employer must close all wage arrears for the entire period of employment.
During the vacation, the employee is free to devote himself to finding a new job.
The employee retains the right to withdraw the application for dismissal.
An employee can calmly rest instead of feeling discomfort from the idle curiosity of colleagues, gossip, and negative assessments.

At the same time, the provision of leave with subsequent dismissal for the employer is fraught with serious problems: the need to find a new employee, recalculation of the funds paid and the inability to return the amounts of personal income tax transferred to the personal income tax in the event of an employee's refusal to dismiss, as well as the timing of calculating and transferring taxes to the budget. Therefore, the employee does not always succeed in exercising his right.

To change the place of work is the right of every citizen, guaranteed to him by law, as well as the right to rest. Situations in which an employee decides to quit without going to work after a vacation raise a lot of questions from both employees and employers.

To avoid violating the rights of both parties, and to avoid further consequences, you should find out which stages of the dismissal procedure must be followed. The employee must understand how to draw up a vacation application with subsequent dismissal according to on their own, and the employer - how to correctly draw up the documents if the dismissal of his employee coincided with going on vacation.

The legislation strictly regulates issues that are related to labor relations. Each employer is obliged to comply with the provisions of personnel:

The Constitution of Russia;
Labor Code;
The Tax Code;
other regulations related to the labor sphere.

The same documents give responsibilities and employees. Failure to comply with legal provisions leads to proceedings in labor inspection and courts, according to the Code of Administrative Offenses of the Russian Federation.

Vacation + dismissal

The rights enshrined in the Constitution to rest and work of citizens are concretized in the Labor Code. A separate chapter is devoted to each of the procedures in it. The subtleties of the dismissal process are described in Chapter 13, and the procedure for granting vacations is described in Chapter 19.

According to the Labor Code, employees are entitled to several types of leave:

basic;
additional, in which the payment is saved;
additional not paid.

This right can be exercised after the term of service in one organization reaches six months. Some categories of employees are obliged to provide leave on demand without reaching the established length of service (Article 122 of the Labor Code).

These include:

employees under the age of 18;
women during pregnancy;
staff caring for children, if the latter is under three years of age.

The vacation period with the main annual rest is 28 days. Employers are required to provide it to each employee annually. If the employee, for some reason, did not manage to walk the due date, then the unused days can be postponed to the next working year.

In addition to the main labor rest, certain categories of persons need to be allocated additional paid vacation days.

This rule applies to:

employees employed in hazardous industries (Article 117);
workers engaged in work with a danger to life (Art. 117);
personnel performing special types works (Art. 118);
persons whose working day is not standardized (Article 119);
women during pregnancy and caring for children under three years of age (Article 255);
students in full-time and part-time programs (Articles 173-176).

In addition, each member of the labor collective has access to rest "at his own expense" after six months of service, which is provided by the employer without calculating vacation pay.

Article 127 of the Labor Code of the Russian Federation allows the dismissal of an employee after any of the above types of leave. In this case, the rest can be both current and unused in previous periods.

The only limitation is dismissal "under the article", in which an employee is found guilty of violating labor laws and his guilty actions are revealed.

Common violations include:

missing work for no reason;
non-fulfillment or improper fulfillment of direct duties;
offenses against the company, resulting in damage;
unacceptable state in work time(alcohol or drug intoxication), etc.

Another reason can be recognized as a violation if it is mentioned in the employment contract, local acts or government documents.

It is important to remember that all unused employee vacations must either actually be given to the employee before dismissal, or compensated.

Vacation registration

According to the legally approved labor discipline, the employer is obliged to organize the rest of the personnel.

For this, a schedule of the T-7 form is drawn up annually, which takes into account:

the number of days of rest assigned to each employee;
the order of vacation periods;
current changes in the timing of vacations.

At the same time, each enterprise should have a vacation journal, where information about all documents is entered, on the basis of which current adjustments are made to the schedule.

Vacation rules followed by dismissal

In order to take a vacation and not return to work, an employee just needs to fill out an application and notify the employer about his plans in deadlines- two weeks before leaving.

At the same time, the employee is not obliged to comply with the established schedule, and can apply for vacation and dismissal at any time.

before the onset of their turn to rest;
at the time of leaving;
during the rest period;
upon returning from it.

For the employer, the date of application is important, as it can affect his subsequent actions:

Refusal to provide.

The employer has the right to refuse vacation if the employee applied with an application outside the onset of the vacation period approved in the schedule. For example, if the situation in the enterprise requires the presence of an employee. Unused leave will be either partially approved or compensated to the employee in full at the time of dismissal, and the allotted 14 days will have to be worked out, as required by law. ()

Registration of a new employee.

If the application is written outside the schedule, then the employer has the right to accept a new employee for the vacated position as soon as the previous one goes to rest. If the rest came on schedule, and at the same time an application for dismissal was received, then the employer will have to wait for the end of the last vacation before registering a new person for a vacant position.

Change of decision.

It is important to comply with the deadlines when registering. If the employee changes his mind about quitting, he can only mark his decision by taking the application before leaving to rest. This is permissible only if his position is vacant and another employee has not yet been transferred to his place.

Thus, according to the law, dismissal can be implemented in three ways:

Vacation, with dismissal on return from it.

In this case, the vacation is carried out according to the schedule, and the application for dismissal is submitted on the date following the end of the vacation.

Registration of leave with further dismissal.

Vacation and dismissal applications are submitted at the same time.

Dismissal with compensation.

Employee applies for dismissal with compensation due days vacation. In fact, vacation is not provided, and upon dismissal, the monetary equivalent of vacation days is paid.

If labor contract came to an end, and the employee did not take a part of the vacation days, he also has the right to arrange a vacation with further dismissal, despite the fact that the latter goes beyond the terms established by the contract. The last working day in this case will be the last vacation day (Article 127 of the Labor Code).

Registration procedure

For the employer, the process of issuing an employee's vacation with further dismissal is a certain difficulty. This is due to the fact that you have to simultaneously deal with two types of procedures, linking them in time. The administration of enterprises often tries to avoid such a wording, suggesting that employees first take a vacation and then quit, or replace the vacation with compensation. However, it will be possible to facilitate the registration only with a mutual agreement between the employer and the employee. This is not always possible. Therefore, it is necessary to streamline the stages of the procedure, take into account the necessary nuances of the content of the necessary documents and the timing of their registration.

Procedure steps

Considering that non-compliance labor standards entails fines and possible litigation, and violations in the registration of accounting documents can attract not only labor, but also tax office, you should carefully follow the sequence of actions when dismissing employees going on vacation.

It is important to remember that the employer himself cannot fire staff if the latter is on work rest at that moment.

Stages of registration:

Drawing up a statement.
Drawing up an order.
Records in accounting documents.
Final settlement.

By following all the steps correctly, you can avoid troubles with labor supervision and tax authorities.

Statement

The first step, which starts the vacation procedure with further dismissal, is a statement from the employee. There is no standard form for this document, but each organization has the right to develop an application form and sample, and use them in work.

The staff member can submit two separate requests, or combine the two requests in one text.

Before you write a statement, you should know what requirements regarding its design and content are mandatory.

These include:

registration of the "header" of the document, which indicates the name of the person to whom the application is addressed, indicating his position;
the position and full name of the applicant are also registered there;
the main text of the application must simultaneously contain two requests: for the provision of vacation, indicating the period, as well as for dismissal, indicating its reason;
the statement ends with the signature of the employee and the date the document was drawn up.

To write the application correctly, you should find out in advance how many unused vacation days the employee has at the time of drawing up the application. This information can be obtained from the Human Resources Department.

If the employee does not have any claims to the employer, then as the reason for dismissal, most often indicated "own desire". If an employee leaves, due to a violation of his rights, then the statement must be drawn up more fully, including in the text a description of the claims and the evidence base. In addition, you will need to draw up a list of documents confirming the facts and attach their originals or copies to the application.

Nuance: if an employee decided to quit at the moment when, according to the schedule, his work rest began, he does not need to draw up a separate application for vacation, it is enough to file a request for dismissal.

Visually demonstrating to employees how to fill out an application will help:

Drawing up a form and a sample application for leave with subsequent dismissal will speed up the work of HR specialists.

Order

Like an employee, the employer has the opportunity to choose how to correctly draw up an order for an employee's leave with subsequent dismissal: two separate documents, or one. Both methods are legal.

In the first case, it is enough to use unified forms. For the order for the vacation of employees, the sample 2016-2017 () was approved, and for the dismissal of employees - ().

The second option uses a form developed by the administration independently. It acquires legal force if it is based on GOST R 15489-1-2007 and approved by the management of the organization.

Requirements for design and content:

the order must contain the name of the enterprise and the name of the document itself;
the order must be numbered and dated;
the main text is a list of actions of various services involved in the procedure, indicating the dates of each stage;
at the end of the instructions, you should list the grounds that formed the basis for the preparation of the order;
the document must be endorsed by the head and have a place for the employee's signature, which is affixed to the order at the time of acquaintance.

It is important to list in the document all stages of the procedure, including the granting of leave, termination of the contract with the employee, and the calculation. In each of the points, the dates of execution and the responsible persons should be reflected.

The developed sample of the order takes on the status of a unified form and is further used in all cases when the staff uses the right to quit immediately after their work rest.

The procedure for the calculation and execution of documents

When drawing up documents and making settlements with an employee who decided to quit after vacation, the legally established procedure should be observed.

After issuing the order, the accounting department is obliged to fully pay the employee all types of earnings due:

basic salary;
awards;
allowances if the employee worked overtime;
vacation pay and compensation, if any.

In turn, the HR department is responsible for providing:

accounting department reference-calculation on the number of vacation days, and days that need to be compensated;
registration of the employee's work book;
issuance of personnel documents.

The coordinated work of the services will make it possible to properly formalize the dismissal.

Focus on timing

It is important to correctly determine the time when it is supposed to settle with the employee according to the TC.

The calculations will be based on:

vacation start date;
date of dismissal;
last day of actual attendance at work.

If an employee has issued an application for vacation and further dismissal, then the last day of rest will be considered the date of termination of the employment agreement. The actual day when the contract expires will be the last day on which the employee performed his duties. This difference in dates introduces the greatest confusion to the calculations.

According to Article 84 of the Labor Code, settlement with an employee is made on the day of dismissal, but according to the law, upon vacation with subsequent dismissal, this date is the last day of rest (Article 127 of the Labor Code). It turns out that the employee must return to work and receive severance pay... This approach, in the case where the dismissal immediately follows the vacation, is incorrect.

IMPORTANT: In this case, it is necessary to make a full calculation on the day that is actually the last working day, that is, before the start of the vacation. The same date is the day when the work book and other personnel documentation should be handed over to the employee.

It happens that the last day before vacation coincides with a weekend or a holiday. In this case, the provision of a work book in advance is prohibited by law. It should be rescheduled to the first business day following the start date of the vacation. Despite the fact that the employee is already on vacation, it is necessary to notify him in writing about the need to pick up personnel documents.

Records in documents

When a HR specialist draws up an entry in the work book, he must indicate the last day of the employee's vacation as the day of dismissal.

This date will not change, even if the employee goes on sick leave while on vacation. Unlike usual calculations, upon subsequent dismissal, the employer is exempted from the need to extend the employee's rest for the period confirmed by the certificate of incapacity for work.

If public holidays fall on the rest period, then they should be taken into account, since they shift the end of the vacation, and therefore the date of dismissal, which is entered in the documents.

Subtleties of calculation

To settle with an employee on the basis of an independently developed order, you should create separate notes-calculations: T-60 and T-61.

The first, concerning vacation pay, indicates the settlement period and the total earnings for it. Payouts are calculated by multiplying the average daily earnings by the number of days off.

The second, related to the full calculation, includes:

order details;
calculation period;
the number of days remaining from the vacation and subject to compensation;
earnings for the reported billing period.

Based on these data, the average daily earnings are determined, as well as the amount of compensation due upon dismissal. Moreover, if the employee has used up all the vacation days, then the need to pay compensation disappears.

If the employee, before leaving, decided to partly take a vacation, then the accounting department will have no choice but to calculate the amount of compensation for the remaining days and pay them upon dismissal.

When calculating, you should take into account everything assigned to the employee funds, minus the deductions required by the law.

Nuances

There are pitfalls in vacation followed by dismissal.

Working off.

A common issue when leaving with the subsequent dismissal is working off. Employees believe they must work 14 working days by law. The Labor Code does not oblige employees to work off, but only sets the deadlines within which it is necessary to warn the management of the desire to quit.

If the employee has earned a vacation exceeding two weeks, then statutory the period will be observed, and the employee will be able to quit without working off.

If the vacation before dismissal is shorter, you should find out with the employer whether you need to work 2 weeks. This issue is usually resolved by mutual agreement. The manager can release the employee from this obligation.

Calculation based on the order.

It is important to remember that the order, if it is developed and introduced into the company's document flow, is approved by the management. Otherwise, Rostrud will have complaints about the lack of filling out unified forms.

Vacation pay and full settlement.

By law, the employee is required to provide vacation pay three days before the start of work rest. If leave is followed by dismissal, then payroll should be paid on the last working day. In order not to violate the law, payments should either be made in two stages, or a general settlement should be made three days before the start of the employee's rest.

6-NDFL report.

Innovations thanks to which the 6-NDFL report on employees has become mandatory for submission to tax office, and his absence is punishable by blocking the company's bank accounts, the FTS was forced to explain to accountants how to correctly reflect data on employees who went on vacation and then quit. it was determined that the transfer of taxes for an employee does not depend on when he quit. The date of payment of personal income tax for him will remain the last day of the month that he worked out.

Thus, the tax withholding date will coincide with the date the employee actually received the income, and the tax transfer date will be the last day of the month in which the final settlement was made with the employee.

Sick leave.

Despite the fact that the employer is not obliged to extend the vacation of the employee, the contractual relationship with whom has terminated, the employer remains obliged to pay compensation for the certificate of incapacity for work. At the same time, no changes are required either in the work book or in the vacation schedule. The payment is a kind of monetary compensation for unused vacation days.

All these subtleties should be taken into account when issuing a vacation with subsequent dismissal. This will allow the employer and employee to disperse peacefully and without mutual claims.

Every employee has the right to vacation. But after the rest, the employee may no longer return to work, having previously agreed with the employer the vacation with subsequent dismissal. In our consultation, we will remind you what vacations are, and tell you how you can combine vacation and dismissal.

What vacations are there

The Labor Code provides, in particular, the following:

annual paid leave (Article 114 of the Labor Code of the Russian Federation), which is basic (Article 115 of the Labor Code of the Russian Federation) and additional (Article 116 - Article 119 of the Labor Code of the Russian Federation);
unpaid leave (Article 128 of the Labor Code of the Russian Federation);
maternity leave (Article 255 of the Labor Code of the Russian Federation);
study leave(Art. 173-Art. 176 of the Labor Code of the Russian Federation).

Unlike other holidays, annual paid leave that is not used on time can be carried over to the future, and in the event of dismissal, it is subject to compensation to the employee.

Annual paid vacation

Every person who works under an employment contract has the right to leave (part 5 of article 37 of the Constitution of the Russian Federation, article 21 of the Labor Code of the Russian Federation).

At the same time, for the period of the next vacation, the employee, in accordance with labor legislation, retains his place of work (position), as well as average earnings(Article 114 of the Labor Code of the Russian Federation).

Paid leave should be provided to an employee regardless of his place of work, shift shifts, form of remuneration, position held, term of the employment contract, organizational and legal form of the employer, etc. Therefore, vacations are provided, among other things, to those who work:

concurrently (Article 287 of the Labor Code of the Russian Federation);
on a part-time basis (Article 93 of the Labor Code of the Russian Federation);
at home (Article 310 of the Labor Code of the Russian Federation);
remotely (Article 312.4 of the Labor Code of the Russian Federation).

However, leave is not provided to persons with whom civil contracts(Article 11 of the Labor Code of the Russian Federation).

Another paid vacation: the procedure for providing

The working year, for which the employee is granted annual paid leave, is counted from the date the employee entered work, and not from January 1 (Article 123 of the Labor Code of the Russian Federation).

As for the first year of employment with a new employer, the employee gets the right to take leave after 6 months. But by agreement with the management, a newly-made employee can go on vacation earlier (Article 122 of the Labor Code of the Russian Federation).

Another paid vacation can be granted to an employee at any time during a calendar year in accordance with (Article 122 of the Labor Code of the Russian Federation). Each employer approves such a schedule no later than 2 weeks before the onset of the calendar year. This means that no later than December 17 of the current year, a vacation schedule for next year(Article 123 of the Labor Code of the Russian Federation).

If the employee is going on vacation according to the schedule, then it is not necessary to take an application from him for the next vacation. In this case, it is necessary 2 weeks before the start of the employee's vacation or earlier to send him a notice of vacation against signature (Article 123 of the Labor Code of the Russian Federation). There is no approved form for such a notification, so the employer has the right to decide how to notify the employee (Letter of Rostrud dated July 30, 2014 No. 1693-6-1).

In addition to the notification, it will be necessary to issue an order on granting leave to the employee or employees in the form No. T-6 or No. T-6a, respectively (approved by the Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 No. 1).

The vacation must be paid no later than 3 calendar days before the start date of the vacation (Article 136 of the Labor Code of the Russian Federation).

Extension and postponement of annual paid leave

The Labor Code of the Russian Federation provides for several cases when the vacation must be extended or postponed, taking into account the wishes of the employee. This applies to situations when an employee during annual leave(Article 124 of the Labor Code of the Russian Federation):

sick or injured. In this case, the allowance for the days of temporary disability is paid to the employee in general order(Letter of the FSS RF dated 05.06.2007 No. 02-13 / 07-4830);
fulfilled public duties under which the legislation provides for exemption from work. For example, he was a juror in court (Art. 10, Clause 3, Art. 11 of the Law of 20.08.2004 No. 113-FZ).

If an employee, while on vacation, immediately notified his employer of illness or fulfillment of state duties, then his vacation can be automatically extended by the appropriate number of days (clause 18 of the Rules on regular and additional vacations, approved by the NKT USSR on April 30, 1930, No. 169) ... At the same time, there is no need to issue a separate renewal order. As a result, the employee will leave for work later than the originally set vacation end date.

If the employee goes to work in accordance with the vacation schedule and only then informs the employer, for example, that he was ill, then it will be necessary to agree with him on the transfer of part of the vacation to another period. The employee will have to write an application for the transfer of vacation.

By the way, if the sick leave was issued in connection with the need to care for a sick family member, then the leave for the period of incapacity for work is not extended or transferred (clauses 40, 41 of the Order to the Order of the Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n, Rostrud letter dated 06/01/2012 No. PG / 4629-6-1).

What is leave followed by dismissal

Leave with subsequent dismissal is granted to the employee on the basis of his written application. In this case, the last day of vacation will be considered the day of dismissal.

Granting leave before dismissal to an employee is a right, not an obligation, of the employer. Of course, this does not apply to the case when the employee's next vacation before dismissal is provided for by the vacation schedule.

Vacations with subsequent dismissal are not granted to an employee whose employment contract is terminated for his guilty actions.

Let us also recall that when granting leave with subsequent dismissal, the employee has the right to withdraw his letter of dismissal before the day of the start of the vacation, if another employee is not invited to his place by way of transfer.

Leave on dismissal

The employee's right to leave upon dismissal is enshrined in Art. 127 of the Labor Code of the Russian Federation. This right can be exercised:

in the form of providing leave with subsequent dismissal;
in the form of payment of compensation for unused vacation.

In any case, all days of unused vacations of the employee at the time of dismissal must be provided “in kind” or compensated for in money.

The main paid leave, which is granted to the employee annually for 28 calendar days, cannot be compensated for in money if the employee continues to work. This is how it differs from additional vacation. Indeed, in order to pay monetary compensation for an additional paid vacation, an employee who does not leave the organization had to submit a written application to the employer with a request to replace the additional vacation with money. But when an employee is fired, the situation changes. The employee should not write any applications for the payment of compensation for both the main and additional leave upon dismissal, because the payment of unaccompanied vacations upon termination of the contract is an unconditional obligation of the employer.

The main question that stands when presenting a vacation followed by dismissal is how to properly formalize parting with an employee in this case.

Vacation followed by dismissal: how to properly arrange

In the time sheet according to the form No. T-12 or No. T-13 (approved by the Resolution of the State Statistics Committee of 01/05/2004 No. 1), the days of leave preceding dismissal are reflected as ordinary "vacation" days:

if this is the main paid vacation, then the letter code "OT" or the digital code "09" is indicated;
if the employee is on additional paid leave, then in the report card you need to put "OD" or indicate the digital code "10".

If vacation time falls on a weekend holidays, then they do not reduce the duration of the vacation, and therefore are reflected in the report card as a regular weekend with the letter code "B", which also corresponds to the digital code "26".

How to calculate the number of vacation days upon dismissal

Step 1: Calculate the employee's length of service with the employer.

Step 2: Determine the number of vacation days that the employee is entitled to for the entire period of his work.

Step 3: Determine the number of vacation days already taken by the employee.

Step 1: calculate the length of service with the employer in months

The answer to the question of what is included in the length of service, which gives the right to annual paid vacations, is contained in Art. 121 of the Labor Code of the Russian Federation.

Work experience, which gives the right to the main paid leave entitles you to basic paid leave
include:	not included:
actual work time	time of absence of an employee at work without good reason, incl. in case of suspension from work under Art. 76 of the Labor Code of the Russian Federation
the time when the employee did not actually work, but he retained his place of work (position) (for example, the time of annual leave or maternity leave, non-working holidays and weekends)	time of parental leave, except when the employee works on a part-time basis
time of forced absenteeism illegal dismissal or suspension from work, if in the future the employee is reinstated at work	vacation time at own expense, exceeding in aggregate 14 calendar days per working year
the period of suspension from work of an employee who has not passed the mandatory medical checkup through no fault of their own
time of "administrative" leave at the request of employees. At the same time, during the working year, the total duration of vacations at own expense should not exceed 14 calendar days.

We also draw your attention to the fact that the length of service, which gives the right to additional annual paid leave for "harmful", includes only the hours actually worked during harmful and dangerous conditions labor.

When calculating the length of service in months, surpluses of less than half a month are excluded from the calculation, and if more than half a month, they are rounded up to a full month (clause 35 of the Regulations on regular and additional vacations, approved by the NKT USSR on April 30, 1930, No. 169).

For example, an employee was hired on 03/12/2018, the date of dismissal is 05/15/2019.

The number of full months for the period from 03/12/2018 to 05/11/2019 is 14. Surplus in the amount of 4 days (from 05/12/2019 to 05/15/2019) are discarded. In total, the total length of service with the employer is 14 months.

Step 2: determine the number of vacation days that the employee is entitled to for the entire period of his work

The number of vacation days in calendar days that are due to the employee for the period of his work with the employer (K p) is determined by the formula:

K n = K g / 12 * M,

where: K g - the number of vacation days due to the employee for the working year;

M - length of service with the employer in months, found in Step 1.

The resulting number of days may not be an integer number. If the employer decides to round off the number of days, this must always be done in favor of the employee, and not according to the rules of arithmetic (Letter of the Ministry of Health and Social Development dated 07.12.2005 No. 4334-17). This means, for example, that a non-integer number of vacation days 37.3 can be further used in calculations, but if the employer decided to round it up, then the number of days will be 38, and by 37 days.

Step 3: determine the number of vacation days

Based on the information about the holidays already used by the employee for the entire period of his work with the employer, the total number of vacation days that the employee has already rested is determined.

Step 4: calculate the number of unused vacation days

The number of vacation days that the employee did not use at the time of dismissal, and for which he is entitled to compensation, (K n) is determined by the formula:

K n = K p - K and,

where: K p - the number of vacation days due to the employee for the entire period of his work with the employer, which was found in Step 2;

K and - the number of vacation days used at the time of dismissal, determined in Step 3.

How to calculate compensation for unused vacation

The number of vacation days determined in Step 4 that were not used by the employee at the time of dismissal must be multiplied by the employee's average daily earnings. This earnings is calculated in the usual manner established for calculating vacation pay by Government Decree No. 922 of 24.12.2007.

Deduction for unworked vacation days upon dismissal

There are situations when an employee at the time of dismissal used more vacation days than he was entitled to. In this case, it is necessary to make a deduction for the vacation used in advance upon dismissal.

The employer's right to withhold excess received vacation pay is provided for in Art. 137 of the Labor Code of the Russian Federation. It must be borne in mind that in individual cases keeping unworked vacation days will not work. This applies to cases when an employee leaves, for example, in connection with the liquidation of an organization, conscription and in other cases listed in Art. 137 of the Labor Code of the Russian Federation.

In the general case, if an employee took a vacation in advance and quit, the employer withholds the amount of vacation pay from his wages. This deduction cannot exceed 20% of the payments due to the employee after withholding personal income tax (Article 138 of the Labor Code of the Russian Federation).

If the amount of deduction exceeds 20% or the employee is not paid other amounts and there is simply nothing to withhold excess vacation pay, the employee can return the debt voluntarily. To demand these amounts from him, and even more so in court, is illegal (Article 137 of the Labor Code of the Russian Federation).

Vacation followed by dismissal: when to calculate

As a general rule, settlement with an employee is made on the day of dismissal, which is the last day of work. However, when granting leave with subsequent dismissal, a different procedure applies. Despite the fact that the last day of work of the employee will be the day of the end of his vacation, the settlement with the employee must be made before the start of the vacation. The rationale for this approach boils down to the fact that at the end of the vacation, the parties will no longer be bound by obligations. Therefore, on the last working day preceding the day of going on vacation, the employer must make the final settlement with the employee, as well as issue him a work book and other documents related to work (Rostrud Letter dated 12.24.2007 No. 5277-6-1).

Vacation followed by dismissal of your own free will

A situation is possible when an employee, being on annual paid leave or vacation at his own expense, decided to quit. The general rule applies to such workers - they need to notify the employer of their desire no later than 2 weeks in advance. In this case, this period will be calculated not from the moment the employee leaves for work, but in the general procedure - from the day following the day the employer is notified. Therefore, if the duration of the vacation exceeds 14 calendar days, such an employee has the right to go to work on the day of dismissal in order to receive the final calculation and work book.

It is important to take into account that the employer does not have the right to call the employee from vacation before its end (Article 125 of the Labor Code of the Russian Federation).

Dismissal after vacation of your own free will

Nothing changes if the employee decides to leave the employer after returning from vacation at his own expense. The only difference is that up to and including the day of dismissal, the employee must perform his job duties during the notification period, unless, of course, the employer agrees to part with the employee ahead of schedule.

However, if unpaid leave is granted to an employee with subsequent dismissal, then it is advisable to make the calculation by analogy with the presentation of paid leave with subsequent dismissal, on the last working day preceding the employee's leave on leave at his own expense.

Sample application for vacation with subsequent dismissal

An employee who wants to go on vacation with subsequent dismissal submits a corresponding statement to his employer:

Order for granting leave with subsequent dismissal

An employer can use a self-developed form of order for granting leave with subsequent dismissal. If he uses unified forms of documents for labor accounting, then in order to obtain leave with subsequent dismissal, the employer will have to issue 2 orders:

granting leave (unified form No. T-6 or No. T-6a);
on termination of an employment contract (unified

Having decided to terminate the employment relationship with the employer, each employee has the right to obtain leave with subsequent dismissal, and its provision does not depend in any way on the annual schedule drawn up earlier. The process is characterized by certain nuances, since a person has the right to request compensation for unused days, or to draw up an application and spend the allotted days, before quitting, looking for a new job.

What is leave followed by dismissal

It is possible to take a vacation before resigning only if the termination of employment occurs on its own initiative or by mutual agreement of the parties. However, in this case, the employer reserves the right, at its discretion, to allow the employee to rest or pay compensation for unused vacation days. If the calculation is due to a violation labor discipline or for other similar reasons, the law is not allowed to take leave before dismissal.

Legal regulation

According to the Constitution Russian Federation everyone has the right to rest, for this reason the employer cannot prevent the employee from exercising this right. The fact that a specialist can take a vacation, and after walking these days, quit is written in the Labor Code, and more precisely, in Article 127. In addition, you need to pay attention to federal laws, an employment contract, since some nuances, for example, additional vacation days, which must also be used or compensated for.

Exercise of the right to rest upon dismissal

It is often possible to observe a situation when an employment contract with an employee is terminated, and this can happen both on the employee's own initiative and at the request of the management. If by this time the subordinate has not exercised his right to take paid rest, which is due annually, the provision of these days before leaving is an integral part of the guarantees. labor rights employee. However, employers do not always advertise such an opportunity, and after all, during the rest, the employee retains all rights:

he continues to be listed workplace;
length of service is extended for the entire vacation period;
for health problems, a paid sick leave is required.

Granting leave with subsequent dismissal

As noted, according to the law, before resigning, an employee has the right to take a vacation due to the vacancy period. Practice shows that there are two ways to do this. In the first case, the employee is sent to rest according to a schedule drawn up and approved in advance, and he can write an application for leaving immediately before or directly during the vacation period.

It is important to comply with all the formalities here, since, according to the law, the employer can force an employee to work for a two-week period before dismissing him. At the same time, it is worth knowing that there are some circumstances and categories of workers who do not need working off:

when enrolling as a student in higher education educational institution;
upon reaching retirement age;
moving to a new place of residence of a spouse;
if necessary, caring for a child, disabled or sick relative;
at the personal request of the management.

It is possible to apply for a vacation at the same time as the application for care. In this case, it is not necessary to adhere to the approved schedule. Sometimes they can be fired for other reasons, for example, the company may change the owner, there may be a reduction in staff, etc. In this case, instead of a letter of resignation, an employee of the organization signs a notice, which indicates his consent, and writes a letter of leave with subsequent dismissal.

Payment of compensation for unused

According to Russian legislation providing an employee with a vacation period with the ability to quit after its expiration is not an obligation of the employer, but a right. For this reason, the manager can provide compensation for the days unused by the employee. This option occurs when there is already a replacement in the place of the dismissed employee, since the employee has the right to pick up the letter of resignation until the last day preceding the rest.

How to arrange correctly

In order to comply with all the formalities and correctly draw up the documents, you need to take a number of actions, and some of them are performed by the resigning person himself, and some lie on the stoves of other employees of the organization. Here is an example of a sequence of actions:

the employee submits a written application depending on the termination procedure chosen by him;
the application is endorsed by the immediate supervisor and transferred to the personnel department;
after agreeing it with the management ( director general) an order is issued to grant leave;
the document is registered, and the employee confirms with his signature that he has read it;
a settlement note is drawn up;
the employer signs an order to dismiss the employee;
this order is registered in the corresponding journal;
the dismissed employee is obliged to familiarize himself with the document, as evidenced by the employee's signature;
the settlement note is drawn up;
full settlement with the employee is made;
in a personal card and work book, a record of dismissal is made;
the work book is handed over to the person.

Vacation followed by dismissal of his own free will is reflected in the timesheet using form No. T-12 or No. T-13 similar to standard vacation days:

main vacation period - code "OT" or "09";
additional - "OD" or "10";
weekend holidays - "B" or "26".

Sometimes an employee decides to withdraw the letter of resignation while on vacation. With the consent of the management, this is possible, although an entry in the work book has already been made. In this case, the entry is invalidated and the dismissal is canceled.

Vacation application

For the provision of a vacation period, an application is submitted in any form addressed to the head of the enterprise. It indicates the start date of the holiday and the number of calendar days. If after that the employee plans to quit, then a separate application is drawn up. After submitting applications, a separate order is drawn up for each of them. The sample application has the following form:

Dismissal letter

If you plan to take a vacation with further dismissal, the legislation allows the text of both statements to be combined into one. It indicates the date of the start of the rest, the number of days and the reason for the termination of employment is necessarily prescribed. The employee draws up a statement in any form and looks like this:

Order for granting leave with subsequent dismissal

The company may develop its own form of order to provide employees, followed by dismissal. If the organization adheres to unified forms, then two orders will have to be drawn up: on the granting of leave and on the dismissal, regardless of whether the employee wrote two separate applications, or issued one. An approximate sample of an order that can be developed at an enterprise looks like this:

How the vacation period is calculated

When an employee leaves, the unused vacation period according to the current code is provided in full. If there are unused days from previous years, they must be added as well. An approximate algorithm looks like this:

the length of service at the current place is calculated;
the number of vacation pay that is due to the resigning person for the entire period of work is determined;
the number of unchecked days is calculated;
the average daily earnings are calculated for calculating vacation pay;
the payment is calculated.

How to determine dates

By law, dismissal occurs on the last day of vacation, but the termination of employment falls on the day preceding the first day of rest. When dismissing an employee, special attention should be paid to the following dates, which will help to carry out the entire procedure in strict accordance with the law:

acceptance of an application by a personnel worker;
registration of the application in the registration journal;
registration of order (s);
date of receipt of vacation pay;
final settlement date;
the date of the end of the employment relationship, the entry made in the employee's work book.

Determination of length of service with an employer

Since an employee of the organization is entitled to a paid vacation period for each year of work, it is necessary to determine the insurance record of his work with this employer. The countdown starts from the first working day, and it does not matter on what date it falls. The working year is counted from this moment. For example, if a person got a job on 12/02/2005, then the first year will be counted from 12/02/2005 to 12/01/2006 inclusive, the second - from 12/02/2006 to 12/01/2007, etc.

The leave period includes:

all calendar days, including those when the person was on sick leave, on maternity leave.

Vacations are not subject to accounting:

at their own expense for more than 14 days;
for child care.

Determination of eligible vacations

According to the legislation, each employee is assigned a 28-day vacation period per year. This is the minimum that the employer must provide. He can take these days at one time, or break the whole rest into parts. In addition, he always has the right to take a vacation at his own expense, followed by dismissal. In some organizations, in addition to the statutory threshold, extra days, for example, for experience, harm, for a contract, etc.

Procedure for calculating compensation for unused vacation

If an employee decides to quit and before that does not take the leave prescribed by law and contract, the Labor Code obliges the employer to pay the employee compensation for them. You can calculate its amount using the formula below:

KNO = KNDO x SDZ, where

KNO - compensation for unused vacation period;
KNDO - Number of unused days;

Are all employees entitled to leave followed by termination of employment? How long can a leave of absence be granted? What are the features of its provision? In what order is such leave granted to the employee with whom it is concluded? What day is considered the day of dismissal? Is the vacation extended for the duration of the sick leave? When can an employer hire a new employee?

The employee decided to quit, but did not have time to take leave this year. In this situation, there are two options for the development of events: he can receive compensation for unused vacation, and he can use his vacation before dismissal. By and large, there is not much difference for the employer, but when giving an employee a vacation followed by dismissal, you need to know some of the features, which we will discuss in this article.

According to Art. 127 of the Labor Code of the Russian Federation, upon a written application of the employee, unused vacations can be granted to him with subsequent dismissal. The first thing to note: the employer is not obliged to provide the employee with such leave, but he can provide it if he sees fit or if he meets the employee halfway. Therefore, even if the employee's vacation is already approaching, for example, according to the schedule, it begins on August 15, and he asks for leave with subsequent dismissal from August 12, the employer is not obliged to satisfy such a request. In such situations, it is easier for an employee to go on vacation according to the schedule, and then write a letter of resignation.

And now let's move on to the specifics of providing leave with subsequent dismissal.

Vacation entitlement

Not every employee can exercise the right to leave with subsequent dismissal. So, in Art. 127 of the Labor Code of the Russian Federation established a restriction for those dismissed for guilty actions.

And here we need to figure out what actions of workers are considered guilty.

note

An employee's act or omission associated with non-performance or improper performance of labor duties, in which there is guilt in the form of intent or negligence, is considered guilty.

The list of such actions is in Art. 81 of the Labor Code of the Russian Federation:

repeated non-performance by the employee without good reason of work duties, if he has disciplinary action(p. 5 h. 1);
one-time gross violation an employee of labor duties (clause 6, part 1):
absenteeism;
appearance at work in a state of alcoholic, drug or other toxic intoxication;
disclosure of a secret protected by law that has become known to an employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;
theft of someone else's property, embezzlement, deliberate destruction or damage at the place of work;
violation of labor protection requirements;
the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to the loss of confidence in him on the part of the employer (clause 7, part 1);
the employee's failure to take measures to prevent or resolve a conflict of interest to which he is a party (clause 7.1, part 1);
the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8, part 1);
the adoption of an unreasonable decision by the head of the organization (branch, representative office), his deputies or the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9, part 1);
one-time gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (clause 10, part 1);
submission by the employee to the employer of forged documents when concluding an employment contract (clause 11, part 1).

Thus, an employee who is dismissed on one of the listed grounds does not have the right to leave with subsequent dismissal.

Vacation duration

An employee may not use the entire vacation before dismissal, but a part of it, and receive monetary compensation for the unused vacation.

Therefore, prior to dismissal, the employee and employer must agree on how many vacation days can be used.

When calculating the unused vacation days, the employer should take into account the length of service that gives the right to vacation, and the number of vacation days already used by the employee for the previous and current years.

The right to a worker arises after six months continuous work at of this employer(Article 122 of the Labor Code of the Russian Federation).

However, here the question may arise, what duration of rest the employer should provide to a person who has worked in the organization for six months.

In this regard, Rostrud, in Letter No. 5277-6-1 of 12.24.2007 (hereinafter - Letter No. 5277-6-1), expressed himself as follows: since the Labor Code does not provide for the provision of incomplete annual paid leave, that is, in proportion to the time worked in a given working year , then a full vacation is provided (regardless of the time worked in the working year) - the established duration.

When resting with subsequent dismissal, a full-length vacation is provided, however, in fact, only those days of it will be paid that would be subject to monetary compensation upon dismissal of the employee, since the vacation to be replaced with monetary compensation upon dismissal is calculated on the basis that full leave is due to the person who has worked full year.

Not everyone agrees with this position of officials. In this regard, we would like to draw your attention to the fact that the opinion of Rostrud officials is not an official explanation and is not a normative one. legal act, and therefore is not subject to mandatory application.

Vacation for the "conscript"

First, we note that by virtue of Art. 127 of the Labor Code of the Russian Federation on vacation with subsequent dismissal, the last day of vacation is considered the day of dismissal.

Moreover, such leave can be used even if a fixed-term employment contract was concluded with the employee and its term expired during the vacation.

note

According to Part 3 of Art. 127 of the Labor Code of the Russian Federation upon dismissal due to the expiration of the term of the employment contract, leave with subsequent dismissal can be provided even when the vacation time is fully or partially beyond the term of the contract. In this case, the last day of vacation is also considered the day of dismissal.

And here we have to remember that by virtue of Part 1 of Art. 79 of the Labor Code of the Russian Federation, a fixed-term employment contract is terminated upon the expiration of its validity period. The employee must be notified of such termination of employment in writing at least three calendar days prior to dismissal, except for cases when the term of the contract concluded at the time of the performance of the duties of the absent employee expires.

Let's add: according to Art. 58 of the Labor Code of the Russian Federation, if none of the parties demanded termination of a fixed-term employment contract due to the expiration of its validity period and the employee continues to work after that, the condition of the urgent nature of the contract becomes invalid and it is considered concluded for an indefinite period.

But two questions arise at once: is it necessary to send a notification to the employee about the expiration of the term of the employment contract and will the contract subsequently become indefinite if this is not done?

As shows arbitrage practice, in such cases, such contracts are not recognized as perpetual. However, the employer can play it safe and notify the employee. Moreover, it is better to do this in advance - as soon as you received an application from the employee with a request for a vacation with subsequent dismissal.

Dismissal registration

The Labor Code does not establish a specific procedure for granting leave with subsequent dismissal. Article 127 only states that such leave is granted on the basis of a written application from the employee and that the last day of the leave is considered the day of dismissal.

And in Letter No. 5277-6-1, Rostrud noted that all settlements with the employee are made before going on vacation, since after its expiration the parties will no longer be bound by obligations. The same should be done with the work book and other documents related to work, which the employer is obliged to provide to the employee - they must be issued to him before going on vacation, on the last day of work. And in fact, labor relations are terminated from the moment the vacation begins.

Thus, the employer must first receive a leave application from the employee, followed by dismissal. Many experts advise employees to write two applications: separately for leave with subsequent dismissal and separately for dismissal, in particular, when an employee leaves at his own request. We believe that one application is enough, only it must contain a request for leave with subsequent dismissal and indicate the reason for such dismissal.

Here are some sample statements.

Director of MOU Secondary School No. 25

I. I. Ivanov

from the math teacher

P. P. Petrova

Statement

I propose to terminate No. 03/12-TD dated 03.02.2012 on the basis of Art. 78 of the Labor Code of the Russian Federation by agreement of the parties 09/05/2016.

I would like to ask you to provide me with an annual paid leave from 23.08.2016 with a duration of 14 calendar days, followed by dismissal. I ask you to specify the condition for granting me leave in the agreement on termination of the employment contract.

Petrov 07/30/2016

Director of MOU Secondary School No. 25

I. I. Ivanov

from the math teacher

P. P. Petrova

Statement

I would like to ask you to provide me with annual paid leave from 23 August 2016 lasting 14 calendar days, followed by dismissal of my own free will.

Petrov 07/30/2016

But as for the orders, their employer must issue two:

on the granting of leave for unified formТ-6, approved by the Resolution of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1;
about dismissal on the unified form T-8.

The basis will be the same application (if the employee wrote more than two applications). It is necessary to familiarize with the orders of the employee against signature; if he refuses to familiarize himself, an appropriate act is drawn up.

On the last day of work before vacation, the employee must be issued with all Required documents(including the work book) and all payments were made. Regarding the payment of vacation, special rules for vacation with subsequent dismissal have not been established, it remains to be guided by the general rules Labor Code... So, according to Art. 136 vacation payment must be made no later than three days before its start.

note

When granting leave with subsequent dismissal upon termination of the employment contract on the initiative of the employee, he has the right to withdraw his letter of resignation. But he can do this only before the day the vacation starts and if another employee is not invited in his place by way of transfer (part 4 of article 127 of the Labor Code of the Russian Federation). If the employee received "vacation pay", and then withdrew his application, then the employer, in accordance with Art. 137 of the Labor Code of the Russian Federation until the end of the working year, on account of which the employee has already received an annual paid vacation, has the right to make deductions from his salary to pay off his debt for unworked vacation days.

Upon receipt of the work book, the employee must sign in the book for registering the movement of work books and inserts in them (clause 41 of the Decree of the Government of the Russian Federation of 04.16.2003 No. 225 "On work books"). The record of termination of the employment contract is certified by the signature of the employee responsible for maintaining work books, the seal of the employer and the signature of the dismissed.

An entry in a work book about the basis and reason for terminating an employment contract must be made in strict accordance with the wording of the Labor Code of the Russian Federation or another federal law and with reference to an article, part of an article, a clause of an article of the Labor Code of the Russian Federation or another federal law (part 5 of article 84.1 of the Labor Code RF). Do not forget that the day of dismissal will be the last day of the vacation.

For example, if the basis for dismissal was the agreement of the parties ( p. 1 h. 1 tbsp. 77 of the Labor Code of the Russian Federation), the recording will look like this.

				Employment contract terminated	Order dated 01.08.2016
				by agreement of the parties, paragraph 1
				part one of Article 77 of the Labor
				of the Code of the Russian Federation.

The record of the employee's dismissal entered in the work book is repeated in his personal card.

An employee fell ill while on vacation

One of the situations that deserve attention when granting leave with subsequent dismissal is the employee's illness during or after the vacation. Employers often ask the question: should they, at the same time, accrue temporary disability benefits to the employee and is the vacation extended for the duration of the illness?

There are no particular difficulties in extending the vacation. In contrast to the general rules established in Art. 124 of the Labor Code of the Russian Federation, leave for the number of days of illness is not extended. This clarification, in particular, is given in Letter No. 5277-6-1.

But as for the calculation of benefits, you first have to turn to Part 2 of Art. 5 Federal law dated December 29, 2006 No. 255-FZ "On compulsory social insurance in case of temporary disability and in connection with motherhood" (hereinafter - Law No. 255-FZ), according to which benefits for temporary incapacity for work are paid to insured persons during the period of work under an employment contract, exercising service or other activities, during which they are subject to compulsory social insurance in case of temporary disability and in connection with motherhood, as well as in cases where the disease or injury occurred within 30 calendar days from the date of termination of the specified work or activity or in the period from the date conclusion of an employment contract before the day of its cancellation.

That is, the employer is obliged to charge the temporary disability benefit if the illness occurs within 30 days from the date of termination of work. In our case, the day of termination of work is actually the day before the start of the vacation. But should the countdown begin from this day? Someone counts from him, and someone - from the day of dismissal, that is, from the last day of vacation.

In the RF Armed Forces Decision No. 34-KG15-13 dated 23.11.2015, the judges noted that an employee who is in labor relations, by virtue of Art. 2 of Law No. 255-FZ for the entire period of his work until the day of termination of the employment contract, he is an insured person under compulsory social insurance in case of temporary disability. In part 2 of Art. 127 of the Labor Code of the Russian Federation states: when an employee is granted leave with subsequent dismissal, the last day of the leave is considered the day of dismissal, which means that it is the day of termination of labor relations. That is, in relation to the provisions of Part 2 of Art. 5 of Law No. 255-FZ, the moment of termination of labor relations and the beginning of the 30-day period, during which the employer is obliged to pay the sick leave of the dismissed, will be the last day of the employee's leave.

The employer's opinion that the calculation of the 30-day period during which the employee is entitled to receive from the policyholder for last place work (i.e. employer) temporary disability benefits, starts from the day preceding the first day of vacation followed by dismissal, is erroneous, based on a misinterpretation and application of substantive law governing a disputed relationship.

Based on the findings of the court, it can be argued that 30 days should be counted from the last day of vacation. And if the employee no later than 6 months from the date of restoration of the ability to work in accordance with parts 1 and 3 of Art. 12 of Law No. 255-FZ applied for the appointment of benefits for temporary disability and the date of the onset of the disease falls on the vacation period, the benefit is paid according to general rules- based on the employee's insurance record.

note

If an employee falls ill during vacation (since in case of illness during vacation, the law does not provide for the preservation of average earnings for two reasons simultaneously (for vacation and for a period of incapacity for work)), then the employer must recalculate the benefits in case of incapacity for work that occurred during the vacation with subsequent dismissal ...

If the insured event occurred after the end of the vacation, then we count 30 calendar days from its last day, and if the employee fell ill during this period, we pay "sick leave" in the amount of 60% of his average earnings (Article 7 of Law No. 255-ФЗ ).

We register a new employee

Some disagreements also arise over when a new employee can be invited to the place of the dismissed - from the date of the last working day or from the day of dismissal?

Despite the fact that legally the employment relationship ends only on the last day of vacation, in fact, the employer and the employee are no longer connected. He has already received all the documents, the work book and the calculation, and the parties do not have any obligations.

In addition, the employee's right to withdraw his letter of resignation is also valid only before the start of the vacation.

In the Definition of the Constitutional Court of the Russian Federation of January 25, 2007 No. 131-O-O, it is noted in this regard: the employer, in order to properly fulfill the obligation of the Labor Code of the Russian Federation (in particular, Articles 84.1, 136 and 140) to formalize the dismissal and settle with the dismissed, must proceed from the fact that the last day of work is not the day of dismissal (the last day of vacation), but the day preceding the first day of the employee’s vacation.

That is why the right to withdraw the letter of resignation at his own request, which is an additional guarantee of the employee's labor rights, can be exercised by him only until the final termination of work in connection with the use of vacation and subsequent dismissal.

Thus, the employer has the right to take on the place of the dismissed employee a newcomer with vacation start dates dismissed.

Summarizing what has been said, let us highlight the main stages of providing leave with subsequent dismissal and the features of each of them.

		Peculiarities
	An employee's submission of an application for a vacation with subsequent dismissal	1. There is no obligation to satisfy the employee's request. 2. Not all employees are eligible to apply. 3. The application is submitted in any form. At the same time, an indication that vacation has been chosen with subsequent dismissal is mandatory
	Vacation duration negotiation	1. By agreement of the parties, part of the leave may be provided, and the rest is compensated. 2. If a fixed-term employment contract was concluded, the term of which ended during the vacation, the day of dismissal will be the day of the end of the vacation
	Vacation registration	1. The employer issues two orders - on granting leave and on dismissal. 2. Vacation pay is paid 3 days before the start of the vacation. 3. The settlement with the employee and the issuance of the work book are made on the last day of work. 4. The last day of vacation is considered the day of dismissal.
	Withdrawal of the application for dismissal	1. The employer is obliged to accept the application before the start of the vacation, unless another employee is invited to the place by way of transfer. 2. The application is submitted only upon dismissal at the initiative of the employee
	Hiring a new employee	Employment can be processed after the start date of the vacation
	The employee brought a certificate of incapacity for work	1. Sick leave is not extended. 2. The employer calculates benefits if the sick leave was received within 6 months from the date of its closure, and the illness occurred within 30 days from the date of termination of work. 3.30 days are counted from the day of dismissal, that is, from the last day of vacation

"On the refusal to accept for consideration the complaint of the citizen Irina Nikolaevna Grudinina about the violation of her constitutional rights by part four of Article 127 of the Labor Code of the Russian Federation."

Vacation followed by dismissal per year.

Relax before leaving

Vacation registration with subsequent dismissal

Statements

How to determine the dates correctly?

Orders

Filling out the work book

Money question

Payments and compensation

Taxation

When to calculate?

What are the advantages and disadvantages of the situation?

Vacation + dismissal

Vacation registration

Vacation rules followed by dismissal

Registration procedure

Procedure steps

Statement

Order

The procedure for the calculation and execution of documents

Focus on timing

Records in documents

Subtleties of calculation

Nuances

What vacations are there

Annual paid vacation

Another paid vacation: the procedure for providing

Extension and postponement of annual paid leave

What is leave followed by dismissal

Leave on dismissal

Vacation followed by dismissal: how to properly arrange

How to calculate the number of vacation days upon dismissal

Step 1: calculate the length of service with the employer in months

Step 2: determine the number of vacation days that the employee is entitled to for the entire period of his work

Step 3: determine the number of vacation days

Step 4: calculate the number of unused vacation days

How to calculate compensation for unused vacation

Deduction for unworked vacation days upon dismissal

Vacation followed by dismissal: when to calculate

Vacation followed by dismissal of your own free will

Dismissal after vacation of your own free will

Sample application for vacation with subsequent dismissal

Order for granting leave with subsequent dismissal

What is leave followed by dismissal

Legal regulation

Exercise of the right to rest upon dismissal

Granting leave with subsequent dismissal

Payment of compensation for unused

How to arrange correctly

Vacation application

Dismissal letter

Order for granting leave with subsequent dismissal

How the vacation period is calculated

How to determine dates

Determination of length of service with an employer

Determination of eligible vacations

Procedure for calculating compensation for unused vacation

Vacation entitlement

Vacation duration

Vacation for the "conscript"

Dismissal registration

An employee fell ill while on vacation

We register a new employee

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