Unlike other vacations, annual paid leave that is not used on time can be transferred to the future, and in case of dismissal, it is subject to compensation to the employee.
Each 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 for the employee in accordance with labor law his place of work (position) is preserved, as well as average earnings(Article 114 of the Labor Code of the Russian Federation).
Paid leave must be provided to an employee regardless of his place of work, shift, form of remuneration, position held, term of the employment contract, legal form of the employer, etc. Therefore, holidays are provided, among other things, to those who work:
At the same time, leave is not granted to persons with whom civil law contracts(Article 11 of the Labor Code of the Russian Federation).
The working year for which the employee is granted annual paid leave is counted from the date the employee enters work, and not from January 1 (Article 123 of the Labor Code of the Russian Federation).
As for the first year of work with a new employer, the employee has the right to use the leave after 6 months. But in agreement with the management, a newly minted employee can go on vacation earlier (Article 122 of the Labor Code of the Russian Federation).
The next paid leave can be granted to an employee at any time during the 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 start 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 take an application from him for another vacation no need. In this case, it is necessary 2 weeks before the start of the employee's vacation or earlier, 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 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 to grant 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).
Leave 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).
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 where an employee during annual leave (Article 124 of the Labor Code of the Russian Federation):
If an employee, while on vacation, immediately notified his employer about his illness or the performance of his state duties, then his vacation can be automatically extended by the appropriate number of days (clause 18 of the Rules on regular and additional holidays, approved by the USSR Tax Code on April 30, 1930 No. 169) . In this case, a separate extension order is not required. As a result, the employee will return to work later than the originally set end date for the vacation.
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 he will need 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 postponement of the 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 and not transferred (clauses 40, 41 of the Procedure for the Order of the Ministry of Health and Social Development of Russia dated 06/29/2011 No. 624n, Letter from Rostrud dated 06/01/2012 No. PG/4629-6-1).
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 next vacation of the employee 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.
We also recall that when granting leave with subsequent dismissal, the employee has the right to withdraw his application for dismissal before the day the vacation begins, if another employee is not invited to his place in the transfer order.
The right to leave an employee upon dismissal is enshrined in Art. 127 of the Labor Code of the Russian Federation. This right can be exercised:
In any case, all days of unused vacations of the employee at the time of dismissal must be provided in kind or compensated in cash.
The basic paid leave, which is granted annually to an employee for a period of 28 calendar days, cannot be compensated in money if the employee continues to work. This is its difference from additional leave. Indeed, in order to pay monetary compensation for additional paid leave, an employee who did not leave the organization had to submit a written application to the employer with a request to replace additional leave with money. But when an employee leaves, the situation changes. The employee should not write any applications for compensation for both basic and additional leave upon dismissal, because the payment of non-vacation leaves upon termination of the contract is an unconditional obligation of the employer.
The main question that arises when presenting a vacation with subsequent dismissal is how to formalize the separation from an employee in this case.
In the time sheet in the form of No. T-12 or No. T-13 (approved by the Decree of the State Statistics Committee of 01/05/2004 No. 1), the days of vacation preceding the dismissal are reflected as ordinary "holiday" days:
If the holiday is a weekend holidays, then they do not reduce the duration of the vacation, and therefore they are reflected in the report card as a regular weekend with the letter code "B", which also corresponds to the digital code "26".
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 the employee has already taken.
The answer to the question of what is included in the work experience that gives the right to annual paid leave is contained in Art. 121 of the Labor Code of the Russian Federation.
| In the length of service, which gives the right to basic paid leave entitles you to basic paid leave |
|
|---|---|
| include: | not included: |
| time actual work | the time the employee is absent from work good reasons, incl. in case of suspension from work under Art. 76 Labor Code of the Russian Federation |
| the time when the employee did not actually work, but the place of work (position) was retained for him (for example, the time of annual leave or maternity leave, non-working holidays and days off) | the time of parental leave, except for cases when the employee is working on a part-time basis |
| forced absence time illegal dismissal or suspension from work, if the employee is subsequently reinstated at work | vacation time at one's own expense, exceeding in total 14 calendar days per working year |
| the period of suspension from work of an employee who has not passed a mandatory medical examination through no fault of his own | |
| the time of "administrative" leave at the request of employees. At the same time, during the working year, the total duration of vacations at their 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 "harmfulness", includes only the time actually worked in harmful and hazardous conditions labor.
When calculating the length of service in months, surpluses that make up 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 Rules on Regular and Additional Leaves, approved by the NCT of the USSR on April 30, 1930 No. 169).
For example, an employee was hired on 03/10/2017, the date of dismissal is 06/01/2018.
The number of full months for the period from 03/10/2017 to 05/09/2018 is 14. Surpluses in the amount of 23 days (from 05/10/2018 to 06/01/2018) are rounded up to a full month. In total, the total work experience with the employer is 15 months (14 + 1).
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 p \u003d K g / 12 * M,
where: K g - the number of vacation days due to the employee for the working year;
M is the length of service with the employer in months found in Step 1.
The resulting number of days can be a non-integer number. If the employer decides to round off the number of days, this should 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 of 37.3 can be used in the future in calculations, but if the employer decides to round it up, then the number of days will be 38, and 37 days.
Based on information about the holidays already used by the employee for the entire period of his work with the employer, the total days of vacation that the employee has already rested.
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 \u003d 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.
The number of vacation days determined in Step 4 not used by the employee at the time of termination must be multiplied by the employee's average daily earnings. This earnings are calculated in the usual manner established for the calculation of vacation pay by Government Decree dated December 24, 2007 No. 922.
There are situations when an employee at the time of dismissal used more days holidays than he is entitled to. In this case, it is necessary to deduct for the vacation used in advance upon dismissal.
The right of the employer to withhold excessively 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 some cases it will not work to keep unworked vacation days. This applies to cases when an employee leaves, for example, in connection with the liquidation of an organization, conscription for military service, and in other cases listed in Art. 137 of the Labor Code of the Russian Federation.
In the general case, if an employee has taken vacation in advance and leaves, the employer withholds the amount of vacation pay from his salary. This deduction cannot exceed 20% of the payments due to the employee after the withholding of personal income tax (Article 138 of the Labor Code of the Russian Federation).
If the withholding amount exceeds 20% or other amounts are not paid to the employee and there is simply nothing to withhold excess vacation pay, the employee can return the debt voluntarily. Demand these amounts from him, and even more so in judicial order, illegal (part 4 of article 137 of the Labor Code of the Russian Federation).
By general rule settlement with the 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 the employee's work will be the end of his vacation, the settlement with the employee must be made before the start of the vacation. The rationale for this approach is 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 (Letter of Rostrud dated December 24, 2007 No. 5277-6-1).
A situation is possible when an employee, while on annual paid leave or leave at his own expense, decides to quit. A general rule applies to such employees - they must 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 goes to work, but in a general manner - from the day following the day the employer was 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 to receive the final payment 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 it ends (Article 125 of the Labor Code of the Russian Federation).
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 labor duties during the notice period, unless, of course, the employer agrees to leave 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 vacation at his own expense.
An employee who wants to go on vacation with subsequent dismissal submits a corresponding application to his employer:
An employer can use a self-developed form of an order to grant leave with subsequent dismissal. If he uses unified forms of documents for accounting for labor, then in order to issue a vacation with subsequent dismissal, the employer will have to issue 2 orders:
Every employee has the right to annual vacation. It occurs after six months of continuous work with one employer. As a rule, the employee exercises this right after having worked at the enterprise for 11 months. Then he can go on vacation for all 28 calendar days.
The right to leave can be exercised by the employee both during work and upon dismissal. This is stated in Art. 127 of the Labor Code of the Russian Federation. This article says that an employee, when leaving, can use either of two options:
Most often, the employee asks for compensation, but some first take their vacation off, and only then quit. This raises a lot of questions for staff. How to properly arrange the main vacation, if then the employee is going to quit?
It is important to properly prepare the documents for such a dismissal. Otherwise, the employer cannot avoid problems with the labor inspectorate.
In Art. 127 of the Labor Code of the Russian Federation says that only those employees who leave on their own initiative can take off unused vacation. If the dismissal is initiated by the employer, and is the result of the employee's guilty actions, the right to leave is lost.
The employer is not obliged to release the employee before dismissal on unused vacation. It is his right, but not his duty. Therefore, if an employee plans to first take a break and then quit, he must obtain the consent of his employer.
Leave may be granted to an employee if he leaves due to own will(clause 3 of part 1 of article 71 of the Labor Code of the Russian Federation), by agreement of the parties (clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation) or on other grounds that are presented in the Labor Code of the Russian Federation and are not related to the guilty actions of the employee.
As stated in Art. 80 of the Labor Code of the Russian Federation, the employee is obliged to notify the employer 2 weeks in advance that he wants to quit a certain number. In Art. 78 of the Labor Code of the Russian Federation says that when an employee is dismissed by agreement of the parties, the period for notifying the employer is specified in the agreement itself. At the same time, he has the right to express his desire to use the leave he has.
Notification of the employer occurs in the form of a written statement from the employee. In the same way, he notifies the employer of his desire to use vacation days. This is stated in Part 2 of Art. 127 of the Labor Code of the Russian Federation.
Upon dismissal of his own free will, the employee writes 2 applications - one for dismissal, the other for vacation.
There is no unified form of application for dismissal and leave. It is made in writing in the name of the employer. If the company has developed a special form for applications, then it is written on it.
If there is no form, then the following information should be in the application for dismissal:
An application for the use of the remaining vacation is also made in writing. It is executed in the same way as a letter of resignation. Only the informative part should contain the following information:
It is better to write the application in two copies. One copy remains with the employer and the other with the employee. On the copy of the employee you need to put a number incoming document and date of acceptance of the application for personnel records.
Based on the statements, the personnel officer issues 2 orders:
The employer does not have the right to issue a single order for dismissal and vacation. This will be a violation of labor laws and office work.
Based on the order, the personnel officer fills out the first page of the T-61 form, and transfers it to the accounting department for calculating vacation pay. In addition, the employee has the right to take only part of the vacation before dismissal, and receive monetary compensation for the rest of the days. The employer can meet the employee halfway, as this does not worsen legal status this worker.
The employee must know that he has the right to leave after six months of work. He must receive full leave, that is, 28 calendar days, and not in proportion to the hours worked. He receives the vacation in full, and only those days that he "worked" will be paid.
Date of dismissal (for vacation with subsequent dismissal) When using non-vacation leave with subsequent dismissal, the question arises which day is considered the last. The date of issue of the order and other subtleties depend on this.
In part 3 of Art. 127 of the Labor Code of the Russian Federation says that upon dismissal from unused vacation, the last working day will be the last day of vacation.
Labor law prohibits an employer from issuing an order to dismiss an employee in advance. For example, the application indicates the date of dismissal on August 27, and the order was issued on July 25. The dismissal order must also be on August 27th. In addition, the employee must put his signature on the dismissal order.
With the start of the vacation, the employee cannot withdraw his application for dismissal. It is also impossible to issue an order in advance, but indicating the date of dismissal - then the through numbering of orders will go astray, and employees labor inspectorate will certainly pay attention to it.
It is necessary to make a full settlement with the employee and issue him a work book. This must be done on the last business day. The last working day is the day before the employee's vacation. Since the employee will no longer withdraw the application, on the same day he is paid a full payment for all the days actually worked from last date salary payments. If the collective agreement provides severance pay, then it is also paid on the last working day of the employee.
The work book is issued on the day of dismissal, that is, on the last day of vacation. In it, you need to make a record of the dismissal, indicating the number of the order and the date of its publication. And the order can only be issued on the day of dismissal.
If an employee falls ill during a vacation with subsequent dismissal, then the date of dismissal is not transferred, but sick leave is paid in accordance with the length of service of this employee.
A resigning employee asked for a vacation. For this, he filed a proper application. What are the associated nuances of such a procedure?
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How is a vacation issued in 2019 with the further dismissal of an employee? Russian legislation provides for the right of an employee to receive leave before dismissal.
But the final decision to provide such is entirely the prerogative of the employer.
At the same time, unused vacation must be compensated. How is the leave preceding the dismissal processed in 2019?
The labor law states that the employer has the right to give leave to the employee on the eve of dismissal.
The key word here is “right”, that is, there is no such obligation for the employer. But the employee himself has the legal right to leave.
Therefore, all unused vacation days must be adequately compensated.
Before the upcoming dismissal, any employee can ask for vacation. The boss decides whether to grant leave or not.
An important nuance is the vacation schedule. If the time required by the departing employee coincides with the approved vacation schedule, the employer does not have the right to refuse leave.
Not a coincidence with gives the right to refuse to grant leave, but her dismissal.
There is such a nuance as the continuation of labor relations, due to the refusal of the employee to dismiss. That is, the employee can change his mind about quitting and pick up the application.
In this case, the moment of return of the application is important. If the vacation has not started, the letter of resignation is canceled and the incident is considered settled.
If the employee changes his mind about leaving during the vacation, then his corresponding statement is not valid. In this situation, two options are possible.
In the first case, the record of dismissal in the labor is invalidated and canceled by the subsequent record.
In another option, the employee is hired again, but at the same time, an entry into the workforce is made only at the end of the vacation period.
Article 127 of the Labor Code of the Russian Federation contains a somewhat ambiguous interpretation of the term "leave with subsequent dismissal." It says here that the employer can give this type of leave.
That is, the decision to grant leave on the eve of dismissal is actually the prerogative of the employer.
It says that, at the written request of the employee, unspent leave can be provided by the employer until the upcoming dismissal “if possible”.
It should also be noted that it is preferable for the employer to refuse leave. According to clause 2, clause 1, article 238 of the Tax Code, compensation vacation days upon dismissal is not subject to UST.
But the employer is obliged to calculate the social tax on vacation pay. It is also significant what date is counted as the day the legal relationship ends, if a vacation is issued with subsequent dismissal.
Article 127 of the Labor Code of the Russian Federation recognizes the last vacation day as the day of dismissal. It is this date that is indicated in the dismissal record performed in the work book.
But the actual legal relationship with the employee ends on the last day labor activity, which is the day before the start of the holiday.
At the time of termination of the employment relationship, the employer is obliged to carry out all final settlements with a retired employee.
This position is supported by the Letter of Rostrud No. 5277-6-1 dated 13/24/2007.
Provides for the extension of the sick leave period, but in the case of the upcoming dismissal, this rule does not apply (Rostrud Letter No. 5277-6-1).
But at the same time, the employer must pay the employee temporary disability benefits for sick days.
Vacation with further dismissal is an independent concept of labor legislation.
In fact, the process involves a dual maneuver on the part of the employee, which implies additional costs for the employer for registration and implementation.
Any of constituent parts leave-with-dismissal schemes require careful adherence to legal norms.
Dismissal in itself is an event consisting of several parts. First, the employee submits a letter of resignation.
Then the dismissal process is formalized properly. In this case, the interests of any of the parties should not suffer.
The employee must receive the payments due to him, and the employer is obliged to perform the functions assigned to him in the process of dismissing the employee.
The first feature of the leave with further dismissal is the statement of the employee. But since two events are planned, it means that two applications are written, one for vacation, and the second for dismissal.
The first specifies the duration of the vacation and its starting date, the second specifies the desire to terminate the employment relationship.
But at the same time, the legislator does not limit the number of applications and two applications from an employee can be combined into one.
Upon receipt of an application from an employee, the employer issues an appropriate order.
He also has the right to choose whether to issue a single order or draw up a separate administrative document for each event.
In the first case, the form of the order is developed independently and provides for the execution of the entire process in full - registration of leave and further dismissal.
Step-by-step instructions for granting leave to an employee and his further dismissal look like this:
The settlement stage becomes an inseparable part of the vacation + dismissal process.
Since dismissal occurs along with vacation, it is necessary to immediately calculate all types of payments - in connection with the upcoming vacation and the upcoming calculation.
The issued order for leave with dismissal becomes the basis for drawing up a note-calculation.
If an organization uses standard forms documents, two calculations are made:
In the final settlement with the dismissed employee, it is appropriate to take into account all amounts and compensation payable, both under the law and provided for by local regulations.
The entire amount of payments must be calculated before the start of the vacation, since all the due amounts must be received by the employee on the last day of work before the vacation.
Article 127 of the Labor Code states that, at the written request of the employee, a vacation is issued, while unspent vacation days can be provided with further dismissal.
It follows from this that the application is drawn up one. Although the lack of a clear wording allows you to submit two separate applications, for leave and subsequently for dismissal.
How to write an application for leave with subsequent dismissal? In order to avoid excessive bureaucracy, it is more expedient to draw up one document, setting out in it the whole essence of the situation at once.
An application is made to free form taking into account the general rules for the preparation of such documents.
The general scheme of the application for "vacation-dismissal" is as follows:
At first glance, a vacation with further dismissal seems simple, it is enough to follow the formalities regarding registration. But there are some nuances of the procedure.
Video: vacation followed by dismissal
For example, how long can unused vacation be granted? Everything seems to be clear - how many vacation days are not used, so much is provided.
Vacation with further dismissal is granted for the full duration, that is, for the entire period prescribed by law.
But only those days of vacation are subject to actual payment, which would be compensated with money upon dismissal.
The remaining vacation days are provided to the employee as vacation at his own expense. The duration of the vacation is calculated from the fact that an employee who has worked a full year is entitled to a full vacation.
In the event of a normal dismissal, the employee is required to notify the employer two weeks in advance, which are worked out in full, unless otherwise agreed.
The situation is somewhat different when it comes to leave. The start date of the vacation is determined based on the request of the employee or the possibility of the employer.
In this case, the final working day is the day before the start of the vacation, and the date of dismissal is the final day of the vacation.
Consequently, at the end of the vacation, the employee is recognized as dismissed, and he does not need to go to work to work out a two-week period.
An employer does not need to wait until the employee's leave ends to hire a new employee.
The next day after the employee goes on vacation with the upcoming dismissal, you can register a new employee.
This position is set out in the Ruling of the Constitutional Court of the Russian Federation No. 131 dated January 25, 2007 and the Letter of Rostrud No. 5227-6-1.
Since the date of dismissal is the final day of vacation, this date is displayed in the work book. The reason for dismissal becomes the reason corresponding to the dismissal order.
If the order indicates “by agreement of the parties”, then it is written in the same way in the labor one.
By all means, the details of the corresponding order are given in the labor, if necessary, a link is given to the corresponding article of the Labor Code.
But although the entry in the labor contains a date corresponding to the final day of the vacation, the labor, among other documents, must be given to the employee on the last day of work.
The entry to the labor is entered on the day preceding the start of the vacation. The reason for termination of employment is indicated, but information about the grant of leave is not displayed in any way.
An application for leave with further dismissal is submitted in accordance with the usual sequence of dismissal. That is, an application is submitted two weeks before the desired vacation.
But this fact can be disputed, since the legislation does not say anywhere about the timing of applying for vacation.
It was only noted that the employer must notify the employee two weeks in advance of the upcoming vacation according to the schedule, if there is such a schedule.
Thus, the employee has the right to apply for leave with dismissal at any time.
However, if the employee first went on vacation, and then decided to apply for dismissal, it should be submitted two weeks before the end of the vacation.
Going on vacation with subsequent dismissal of one's own free will is the right of an employee, enshrined in the Labor Code. So that the labor inspectorate does not have any complaints, the personnel officer and accountant must follow the procedure in strict accordance with the requirements of the law.
Many people prefer to take the opportunity to take a break before looking for a new job instead of financial compensation for unused vacation days. However, leave with subsequent dismissal has a number of features. Let's look at these features, describe how to provide leave with subsequent dismissal, how to properly draw up documents. We will answer popular questions on this topic.
About leave with dismissal
He speaks of the possibility of taking a vacation with subsequent dismissal of his own free will. At the written request of the employee, unused vacations may be granted to him with subsequent dismissal.
First important caveat legal norm: providing rest is excluded if the employee is fired for guilty actions. Only a conscientious and disciplined employee can take the prescribed days before terminating the employment contract. The list of guilty actions, during which it is impossible to use vacation days in exchange for compensation, is in article 81 of the Labor Code of the Russian Federation.
The second important caveat: characterizing the employee’s right to leave with subsequent dismissal, Article 127 of the Labor Code of the Russian Federation uses the wording “leaves can be granted”, which means that the employer is not at all obliged to provide the employee with rest before terminating the contract. The head of the organization retains the right to refuse even a conscientious employee and pay compensation in return for unused days. Or provide only a part for rest due date, and the rest of the time to compensate financially. Clarifications on this matter were given by Rostrud in Letter No. 5277 6-1 dated December 24, 2007.
It turns out that an employee can take a chance to rest before looking for a new job only by mutual agreement with the management.
Two ways to go on vacation before leaving
The first option: the employee leaves to rest according to a pre-approved schedule, having written a statement of his own free will before this or already being on vacation. At the same time, he can take time off both pre-planned days according to the schedule, and those days that he did not have time to use before.
The second option: the employee writes an application for rest at the same time as an application for dismissal of his own free will. In this case, the established schedule can not be followed.
The date of termination of the employment contract under Article 127 of the Labor Code of the Russian Federation is considered in any case the last day of rest.
But the management can accept a new employee in the place of a leaving employee immediately, without waiting for the rest to end.
Application and order for leave with subsequent dismissal, registration procedure
The employee usually makes 2 statements:
- on leave with subsequent dismissal;
- dismissal with reasons.
And the management draws up 2 orders:
- on granting leave (based on the first application of the employee);
- on termination of the employment contract (based on the second application).
It is also allowed to draw up one application from the employee: you can write an application for leave with subsequent dismissal of your own free will - this does not contradict the norms Labor Code of the Russian Federation.
But when using unified form documents, the employer still issues two orders, because the form of a single order has not been officially established. Order forms that can be used are documents of the form T-6 (T-6a) and T-8 (T-8a), recorded in the Decree of the State Statistics Committee of 01/05/2004 No. 1. The original is attached to one of them as a basis, and to the second - a copy of the employee's application. Forms of orders must be approved by the company's management as accounting documents.
The second option for management is not to use unified forms, but to develop an order form on your own. Then you can issue both actions in one order. The main thing is that it contains the required details of the primary accounting document.
Application for leave with subsequent dismissal, sample 2019
The work book is handed over to the employee on the last day before the rest, despite the fact that he will be fired on the last day of his vacation.
Example: Dudnikova I.N. takes 28 days of rest from 04/17/2018 and quits. She receives the work book and the calculation in her hands on April 16 - the last working day before leaving. She will be officially dismissed on 05/16/2018 - on the last day of rest. Please note that two more days have been added to the main days for non-working holidays - May 1 and 9. Holidays are extended due to holidays. This period is counted in seniority Dudnikova I.N., which is reflected in the order and work book.
Vacation order with subsequent dismissal, sample 2019
A sample of a self-developed order form based on the example application above. An order drawn up in a similar form is issued once.
Popular questions
Employees who plan to take a break before they leave are often worried about issues related to registration and payment. We will answer the most popular of them.
Can they get fired while on vacation?
Art. 81 of the Labor Code of the Russian Federation states that termination of an employment contract at the initiative of the employer during rest is not allowed. Except in cases of liquidation of the company or termination of the activities of the individual entrepreneur.
Can I quit my job while on vacation?
You can quit on your own initiative during the rest period. The main thing is to comply with the deadline for filing an application for termination labor contract(2 weeks). Moreover, by agreement with the authorities, a two-week period can be bypassed.
Is it possible to go on vacation with subsequent dismissal without working off
Often, employees believe that they cannot quit at this time, since they are required to work for two weeks before leaving, so they often ask the question: how to go on vacation with subsequent dismissal without working off. However, the Labor Code does not contain the concept of "working off 2 weeks before dismissal." Part 1 Art. 80 of the Labor Code of the Russian Federation states: "notify the employer in writing at least 2 weeks in advance." It is quite possible to warn the authorities about the intention to quit, while being on vacation. You are not required to be present at the workplace for the next 2 weeks.
When will the money be paid
The employer is obliged to pay wages and vacation pay, as well as issue a work book and other documents to the employee before terminating the employment contract. There is some discrepancy in the dates of payment of vacation pay and wages in the final calculation. The money will be paid to you three days before going on vacation (Article 136 of the Labor Code of the Russian Federation). And the RFP and documents must be issued on the last day before leaving. These payments are not part of the salary. It turns out a small spread in the days of payment of vacation pay and wages, which is inconvenient for both employees and employers. But these are the calculation rules established by labor legislation (Article 136, Article 140 of the Labor Code of the Russian Federation). Failure to do so will result in a fine for the employer.
Do they withhold wages for unworked days
The employee is given 28 calendar days of rest as a general rule, regardless of whether he had time to work due year. But only those days are paid that would be subject to compensation upon termination of the contract. Therefore, yes, if an employee received full annual paid leave, but did not have time to work out the time allotted for it, they will withhold the appropriate amount upon dismissal from his RFP. These are the explanations of Rostrud in the Letter dated December 24, 2007 No. 5277-6-1. True, they can withhold no more than 20% of the amount ( Art. 138 Labor Code of the Russian Federation). And in some cases, holding is generally prohibited (more on this in Art. 137 of the Labor Code of the Russian Federation). The provision of an incomplete rest period (as many days as the employee managed to earn in the working year) is not provided for by the Labor Code of the Russian Federation, although it is possible by agreement of the parties.
To make it clearer, let's take an example.
Dudnikova I.N. wrote an application for leave for 28 calendar days with dismissal. And in the last working year, she worked only 10 months and 12 days (since 12 days is less than half a month, the period is rounded down. If the employee worked 10 months and 16 days, they would be counted as 11 months). For 10 months worked Dudnikova I.N. supposed to rest: 28 days / 12 days × 10 months. = 23.3 days. Cash at the final settlement, she was entitled to only 23.3 days, but paid for all 28 days.
It turns out that the employee did not manage to earn 28 - 23.3 = 4.7 days in the working year, but she received payment for them. If the vacation pay received in 28 days amounted to 10,000 rubles, then the following amount is to be deducted from Dudnikova's salary: 10,000 rubles. / 28 days × 4.7 days = 1678.57 rubles.
Vacation accrued during work refers to the employer's debt to the employee, which is extinguished by monetary compensation or the provision of paid free time. Often, wanting to leave the organization, employees choose the option of vacation followed by dismissal. A correctly drawn up application from the employee and the correct calculation of payments, drawing up orders, adding an entry to the work book on the part of the employer - all this will serve as a peaceful termination of employment.
Is it always possible to leave on the eve of dismissal
Vacation is a right of an employee and an obligation of his employer. Therefore, it is provided solely at the request of the employee with the provision of an appropriate application from him. Dismissal, on the other hand, is often involuntary. Employment relationships are also terminated objective reasons(liquidation of the enterprise, downsizing, court order) or the requirement of the employer (loss of confidence, misconduct, violation of labor discipline, absenteeism). Therefore, dismissal with preliminary leave is possible at the initiative of the employee or mutual agreement. Indeed, it would be strange to give leave to the cashier on the eve of dismissal for embezzlement.
Vacation with subsequent dismissal is possible in case of dismissal of an employee at his own request or by agreement of the parties
If the vacation is taken according to the schedule approved by the enterprise for a year, then the employer can refuse to provide it only in rare cases. But at the request of the employee to rest before dismissal at another time, the director has the legal right to respond in the negative, referring to the schedule.
Documentary support
The termination of relations with employees is regulated by the Labor Code of the Russian Federation (mainly Chapter 13), other regulatory and local acts. For example, dismissal at the initiative of the employee is carried out in accordance with the requirements of Article 80. The procedure for processing applications and other documents depends on the specific reasons for dismissal and the characteristics of the leave. In one situation it is enough to write a general statement, and in another it is necessary to divide the procedure into two separate stages.
Dismissal after vacation received according to the schedule
If the employee waited until the next paid vacation was granted and decided to quit after it ended, then the registration procedure is simplified.
Dismissal after extraordinary leave
Extraordinary leave, including "accumulated" for previous years, is provided in agreement with the management, therefore good will companies in this matter is necessary. For the same reason, instead of one general application, two separate ones are drawn up: for dismissal and leave.
It is not legally prohibited to submit a letter of resignation for a longer than the minimum period, so it can be written on the same day.
Further actions are similar: an order for the provision of leave, paperwork, issuance of vacation pay, an order for dismissal, calculation and issuance of personal documents.
Dismissal, vacation and sick leave
In illness and clearance sick leave the employee must notify his superiors of the incident. By agreement with the employer, it is possible to choose one of the options:
- Extend the vacation for sick leave and reschedule the date of dismissal.
- Replace the part of the vacation not taken due to illness with monetary compensation.
It is forbidden (Article 81 of the Labor Code) at the request of the employer to dismiss an employee on vacation or on sick leave.
The sick leave automatically postpones the dates of both the end of the vacation and the end of the relationship if the dismissal has not yet been formalized, or both parties have not mutually chosen a different course of action.
By agreement of the parties
Documents are drawn up a little differently upon dismissal by agreement of the parties. In contrast to the "own desire" of the employee, in this case, the termination of the employment agreement is implied. The agreement itself usually contains the terms of termination and a sequence of actions, including the preparation of a written statement or other document.
Therefore, it is necessary to first carry out all necessary procedures(including writing a statement) at the end of the employment contract, and then, as part of this process, arrange a vacation. Otherwise, the sequence of actions is the same.
At the initiative of the employer
Termination of an employment contract at the initiative of the employer is regulated by Article 81 of the Labor Code, which lists the main reasons for dismissal. Some of them are related to the fault of the employee, in this case, leave is not given.
You also need to take into account that vacation is a certain guarantee of job retention, since during it the same article prohibits the dismissal of an employee at the initiative of the employer (with rare exceptions).
Thus, leave in this case is one of the subjects of negotiations between the employee and management on the issue of termination of employment. If the dismissal is caused by reasons beyond the control of the employee (downsizing, change of ownership, reorganization, etc.), then first he must be familiarized with the notice of the upcoming dismissal under his signature and express his consent. Only after this begins (with mutual agreement) the registration of the vacation. Otherwise, the procedure is no different from the previous options.
Features of registration of certain categories of workers
The head is obliged to notify the company of his desire to quit at least one month in advance (Article 280 of the Labor Code). In this case, the application is submitted to the joint-stock body authorized to sign the contract. In addition, the head issues an order for vacation without an application (unless otherwise provided by the charter or contract).
Also, more stringent conditions are provided for the dismissal of athletes and coaches (Article 348 of the Labor Code), the working period is one month, unless otherwise provided by the labor agreement. Employees undergoing a probationary period (Article 71 of the Labor Code), as well as seasonal workers (Article 296 of the Labor Code) have the right to faster dismissal, within three days, however, these categories rarely manage to earn another vacation.
Making an application
Legislation does not provide for the application special requirements. It must be in writing, personally signed by the resigning employee, contain a clearly expressed intention to terminate the employment relationship. Article reference Labor Code, a specific reason and other additions only make sense if they serve as justification special conditions, for example, refusal to work off.
The application for leave must contain an indication of the nature of the leave (regular, extraordinary, at one's own expense, etc.), as well as the date of its commencement and duration. The remaining requirements are the same - handwritten signature and written form.
Both statements (or one general) are written in the name of the head of the enterprise. You can use the form, and in the absence of one - the sheet white color A4 format. The left corner remains free, starting from the middle to the right edge, the heading is written: position and full name of the head in accusative, position and full name of the dismissed person genitive case. A little lower - the word "Statement", and then the main text, ending with a signature and date of writing.
An example of an application with a standard working period
How many days to apply
There is no fixed time frame for applying for leave, especially if the approved schedule is followed. Receiving additional or extraordinary rest implies the principal consent of the management, therefore there is also no need to determine the time of prior notice. On the contrary, voluntary dismissal requires advance notice to the employer. Except in the cases discussed above, this period is two weeks.
Despite the well-established term "development", the time between filing an application and dismissal is given to the employer to find a new employee to replace the one who is leaving. In other words, if for some reason an employee does not go to work (vacation, illness, etc.), then he does not have additional duty work some more time same place. After all, nothing prevented the employer from looking for a replacement, even if the employee is on vacation.
Conflict-free completion of labor relations allows you to draw up documents by mutual agreement. In this case, the parties themselves can determine the date of dismissal, and the duration of the vacation, and the need for working off. If an agreement could not be reached, the employer may refuse to satisfy the leave application, citing a production need. Maybe, in a good way to avoid such a situation would first write an application for a regular vacation, and then apply for resignation while on vacation. The deadlines in such a situation remain the same - the application must be submitted to the company two weeks in advance.
Revocation of the submitted application: how to write correctly + example
The legislation establishes that it is allowed to withdraw an application on any day before dismissal, however, in the case of a vacation, this right is limited: you can withdraw an application only until the first vacation day (Article 127 of the Labor Code). Also, the Labor Code provides for a “silent” recall, when the company does not draw up a termination of the employment agreement, and the employee does not insist on dismissal. In this case, the employment relationship is resumed without additional registration. However, the method is not very reliable - and the employee may simply not go to work, and the employer has the right to report on the last day that he nevertheless decided to satisfy the application. Therefore, it is better to express your intentions in writing.
The application is withdrawn in several ways:
In some cases, management has the right to disregard the withdrawal of the application and issue a termination of the employment agreement according to the original intention of the employee:
- If a new employee has already been hired for the vacant position.
- If a written invitation is sent to a new employee.
- If an application is received from a candidate who, according to the law, cannot be denied employment.
Not always the employer, even with a strong desire, can accept the withdrawal of the application
When resuming the employment agreement after the withdrawal of the application, it is necessary to cancel the corresponding order (with a new order) and the entry in the work book (with a cancellation mark with a link to the order). If the dismissal has not yet been carried out according to official documents, you can limit yourself to a note on the canceled application.
Drawing up orders: examples
In the case of going on vacation with dismissal, the day of termination of the contract is the last vacation day (Article 127 of the Labor Code). The day before the holiday is considered the last working day.
Dismissal
The template for the corresponding order is contained in the approved forms T-8 (one employee) and T-8a (group dismissal). The company can develop its own forms for similar documents, but it is better to keep the main meaningful attributes:
- Order number. Indicated in accordance with the document management procedure adopted by the company.
- Order date. The order must be drawn up no later than the last working day for the employee.
- Date and number of the employment contract or date of dismissal. It is indicated that a specific contract of employment(if it is concluded), or the date of dismissal of the employee.
- Full name of the employee. The full surname, name and patronymic of the dismissed employee are indicated in the appropriate case.
- Employee work data. The following is indicated: personnel number, division, position, as well as profession, specialty, rank, etc.
- Reason for dismissal with the article of the Labor Code. For example, “on the initiative of an employee, art. 77 clause 3 of the Labor Code of the Russian Federation ”or another.
- Grounds for dismissal. The data of the application (or other document) that was the basis for the termination of the employment agreement are indicated.
- Data and signature of the head. The position, surname and initials of the person authorized to sign the order (director, president, acting director, etc.) are indicated. The signature must correspond to the transcript, that is, you cannot “put a wand” and sign for the director, you must indicate reliable data.
- A mark on familiarization of the dismissed person. Printed or written by hand, certified by the employee's own signature.
- Additional marks and visas. Visas of trade union bodies (if any), personnel services, heads of intermediate divisions are not mandatory, but may be provided for by the rules of internal document flow.
Leave order
Standard forms for a vacation order are numbered T-6 and T-6a. They also do not have to be followed unconditionally, but the developed form should contain basic data:
- Order number.
- Order date. Usually - the first day of vacation of the employee.
- Full name of the employee in the appropriate case.
- Work and account data of the employee.
- The period for which the leave is given. For example, the last full year worked.
- Type of vacation, duration, start and end dates. When several vacations are taken, they are entered sequentially, ending with the final calculation (length in days, start and end dates).
- Data and signature of the authorized person.
- Employee familiarization mark.
- Additional marks and visas.
Entry in the workbook
An employee of the company authorized to make records checks the correctness of the preparation of documents: the content of the order and the authority of the signatory, the signature of the dismissed person about familiarization, and so on. After the verification is completed, an entry is added to the work book indicating the date, reason for dismissal, links to the relevant paragraph of the Labor Code and the order.
In practice, two equivalent versions of the text of the main record are used. The first one begins with the words "Fired due to ...", and the second - " Labor contract terminated due to ...”, followed by a descriptive part of the reason and a reference to the normative act.
The entry is certified by the signature (indicating the position) of the employee of the personnel department or other authorized person, as well as the seal of the company. Below puts a signature on familiarization retiring. Simultaneously with the registration of the work book, data is entered into the employee's T-2 account card.
On hand employment history, other documents necessary for the employee to work (diplomas, certificates, certificates, etc.) are issued before the start of the vacation or on the last vacation day preceding the dismissal. If the employee was unable to appear in person, the head of the enterprise can send the documents by registered mail with a description of the attachment.
Calculations
The employer is obliged to pay the employee
Full settlement upon dismissal includes all the provisions material payments employee, as well as compensation for unused vacation. The accumulated debt is repaid wages(if any), wages are paid for the past full month, as well as for the worked period of the current (based on the average monthly earnings for the last three months). All debts of the employee to the enterprise are withheld.
The most difficult thing is to calculate compensation for the remaining vacation.
- We determine the work experience at the enterprise (separately - in hazardous production) in months in accordance with Article 121 of the Labor Code.
- We exclude from the experience time off at our own expense for more than 14 days per year, parental leave, absenteeism, suspension time.
- We round the calculations to an integer (the balance is less than half a month - 0, more than half - 1), we get the calculated length of service in months.
- We calculate the number of vacation calendar days due to the employee for the entire time of work.
Number of days \u003d Number of vacation days allowed per year / 12 * Calculated work experience.- Round the resulting number to the nearest integer.
- We subtract from the result of the previous step the number of vacation days taken for the entire time of work, we get the number of days for compensation.
- We calculate the average daily earnings for the last 12 months according to the standard methodology for vacation pay (PP No. 922 of December 24, 2007) and multiply it by the number of days for compensation.
Calculation example
The employee started working at the enterprise on 05/05/2015. The application was submitted and the relevant orders were issued to grant leave from 06/28/2016 for 3 calendar days (calendar days) with further dismissal of their own free will. Previously, the employee was granted paid leave for 28 k.d. There is no right to other holidays.
Payments received for the period of work (table)
Month Amount (rub.) June 50,000 - salary, 10,000 - bonus for May, 100,000 - bonus for the previous year July 50 000 August 50 000 September 27,273 - salary, 29,105 - vacation pay October 50 000 November 30,000 - salary, 33,180 - vacation pay December 60 000 January 40,000 - salary, 21,118 - sick leave February 60 000 March 60,000 - salary, 110,000 - bonus for the previous year April 60 000 May 60 000
- The length of service is 13 months and 26 days.
- There are no exclusions from experience.
- Rounding up the experience - 14 months.
- Number of days required = 28 days / 12 * 14 = 32.67 days.
- Rounding up: 33 calendar days.
- We subtract the used days, including three on the application for resignation: 33 - 28 - 3 = 2 days.
- We calculate the average daily earnings:
((50,000*4 + 10,000 + 27,273)*1.2 + 30,000 + 60,000*5 + 40,000 + 110,000)/(9*29.3+53.94) = 2407.53, where:
- 1.2 - salary increase in November;
- 9 - the number of completed months worked;
- 53.94 - the number of days in two partial months.
Thus, 2 days of unused vacation should be compensated, salary for the days worked in June and vacation pay for three days should be paid:
2,407.53*2 + 60,000 / 21 *18 + 2,407.53 *3 = 63,466.22 rubles before tax.
Income tax is withheld from the due amount individuals(personal income tax). Vacation pay is paid before the vacation, no later than three working days. Full payment is made no later than the last business day.
Illness and leave of the dismissed
The situation is much more complicated when a resigning employee falls ill during a vacation. If the dismissal order has not yet been endorsed, and the work book has not been issued, then, by agreement of both parties, the easiest way is to increase the duration of rest according to the standard procedure by postponing the day of dismissal. Accordingly, the calculations will need to be done again.
If the dismissal has already taken place, then it will be necessary to adjust the calculations based on the shorter time of the “full” vacation and, accordingly, bigger size compensation for unused days. Sick leave is paid in the usual manner until the date of dismissal, after which - in the amount of 60% of the average earnings at the expense of the Social Insurance Fund.
Is it necessary to work out when you can do without it
In the general case, the employee must notify the employer of his desire to quit two weeks in advance (Article 80 of the Labor Code). The exception is separate categories(managers, athletes, coaches, workers on probationary period, seasonal workers), which we have already mentioned above. Thus, since the application was written in advance, that is, before the notification time set, the employee is considered to have fulfilled his obligation, even when he is or is about to be on vacation. If the duration of the vacation is less than the required time, the employee is obliged, at the request of the employer, to finalize the difference.
The employer can waive his right and dismiss the employee earlier if he does not object. The law carefully regulates conflict situations, but provides greater freedom of action with the consent of the parties. In addition, some categories of employees enjoy the right to quit on the date written in the application:
- When you retire.
- When enrolling in an educational institution.
- When changing residence.
- If it is impossible for health reasons to continue working.
- For other reasons that make it impossible to continue working.
In these cases, an application is made indicating the specific reason and supporting documents are attached.
As for leave before dismissal, the employer has more rights in this matter. Even the approved schedule does not serve as a complete guarantee for the provision of vacation, since the necessary changes can always be made to it.
Going on vacation before leaving allows the employee to devote more time to searching new work, and in some cases, exempts from the need to work out. The employer is obliged to pay off all accumulated wage arrears and issue monetary compensation for unused days. On the other hand, while on vacation, it is much more difficult for an employee to withdraw a letter of resignation if the situation suddenly changes. Therefore, such a tool should be used, carefully assessing the possible consequences.
Thematic materials:Updated: 09/24/2019103583If you notice an error, select a piece of text and press Ctrl + Enter
