Dismissal while on vacation. How to file a resignation while on voluntary leave

The Labor Code provides officially employed individuals with many ways to terminate contracts concluded with their employer.

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Moreover, in most cases it protects the rights of employees, but not the employer. This is why an employee can resign directly during vacation at his own request.

Is it possible

If an officially employed employee decided for some reason to resign of his own free will while on vacation, then the implementation of this action will not be considered illegal.

The Labor Code, as well as other regulatory documents, do not contain articles that make it impossible to terminate an employment contract during vacation by an illegal process.

But it is worth remembering that this kind of procedure has a large number of different nuances. The most important of them are the following:

• To fill out an application, you do not need to interrupt your vacation or make a call from it;
• It is necessary to comply with the deadlines for submitting the application.

The situation of providing leave in advance is special. Registration of this kind of vacation on credit is possible on the basis of current legislation.

There is no requirement to maintain any proportions between the length of vacation time and the amount of time worked. This point is covered in as much detail as possible in the letter from Rostrud dated June 23, 2006.

If an employee is on vacation, there is simply no need to suspend it. It will be enough to fill out the application accordingly and submit it to the HR department.

However, again, it is not necessary to do this in person. It will be necessary to send the application itself by registered mail with a list of attachments to the employer’s address.

The work book itself can also be received by mail - you just need to indicate this point in the resignation letter.

A very important nuance that must always be remembered is the obligation to comply with the deadlines for filing the relevant application.

According to current legislation, it is mandatory to notify your employer of dismissal 2 weeks in advance.

But if the employee who wrote the application is on sick leave or on vacation over the next 14 days, then this period cannot be extended.

If during the entire two-week period the employee is on vacation, then he may not return to his workplace.

If the vacation ends before this period, then the obligation to work for this period arises. But this moment always remains at the discretion of the employer himself.

Deadlines

The time frame within which an employee is obliged to notify his employer of dismissal is specified in the Labor Code of the Russian Federation.

In fact, the duration of the dismissal process can be this entire period. Moreover, the countdown begins from the day when the employee submitted a properly completed application to the personnel department.

But at the same time, the period for voluntary dismissal during vacation can be significantly reduced.

If the employer does not want to meet his employee and carry out the dismissal process in one day, then he should turn to the Labor Code.

It provides for cases when the employer is obliged to carry out the dismissal procedure on the date of filing the application (it is important that it be a working day).

The list of such situations includes the following:

• the employee was enrolled as a student in any educational institution;
• the employer has violated labor laws in some way;
• it is required to provide care for a disabled person of group I;
• retirement.

If you want to resign of your own free will, but the vacation ends before the two-week period expires, then you don’t have to work the remaining period of time based on the reasons stated above.

Especially often, various older people use this method of dismissal - they deliberately take vacation in such a way that they can retire immediately after it.

Order

The procedure for dismissing an employee at his own request is extremely simple.

It includes the following main steps:

• the employee writes an application in the appropriate form;
• formation of a special order - it is signed by the head or other official who has the right to do so;
• the accountant calculates the company's debt to the employee or vice versa - after which the funds are transferred to the account;
• the employee picks up the work book.

When writing a resignation letter of your own free will, there is no need to follow any specific format.

The HR employee must formalize the dismissal process accordingly. Its task is as follows:

• preparing an order in form T-8, submitting it for signature to the director, his deputy or other authorized person;
• making a corresponding entry in the work book.

The second point is especially important. The employee should check as carefully as possible what exact wording was written down in the work book.

Because sometimes, it still happens that management, out of a desire to cause harm, prescribes some unflattering article as the reason for dismissal - absenteeism or something else. With such a record, it will be extremely difficult to find a job later.

Of course, this is a very serious violation of current legislation. But some employers still practice such “revenge”.

The work book must contain the following entry in the case under consideration: “Dismissed at his own request on the basis of the Labor Code of the Russian Federation.”

If for some reason the recording sounds different, then you should immediately go to court. Since the employer in this way seriously violates the legislation in force in the Russian Federation.

Also, a serious violation of current legislation is failure to return the work book on time.

How to write an application

Writing a resignation letter is the simplest stage of this process. It is compiled in free form. Can be handwritten or printed on a PC.

But it must contain the following information:

• in the upper right corner:
  • name of company;
  • surname, name and patronymic of the director or acting director;
• text of the statement itself:
  • a briefly formulated request for dismissal indicating the reason (optional);
  • desired date of dismissal;
• in the lower part:
  • Date of preparation;
  • applicant's signature;
  • space for the signature of the head of the HR department;
  • space for the signature of the director/acting officer.

If an employee has any doubts about the employer’s honesty, he or she should be required to put a mark on the acceptance of this document by the HR department.

Or simply send this document by registered mail with a list of attachments. Since there are often precedents when an employee of the HR department simply throws the submitted application into the trash bin.

In this case, proving the case in court will be extremely problematic, since there will simply be no confirmation of submission of the application to the personnel department.

Dismissal of one's own free will during vacation without work

There is a fairly long list of ways to avoid working out upon dismissal. But some of them are quite difficult to implement. The easiest way is to go on vacation and write a letter of resignation on time, when the vacation has not yet ended.

But sometimes, for some reason, such a scheme simply cannot be implemented. In this case, the best solution is to compromise with the employer.

Since, by agreement, the management of the enterprise can dismiss an employee in one day, in compliance with all legal norms.

Often, for various reasons (voluntarily or out of necessity), employees go on leave without pay - without pay.

In this case, the dismissal procedure remains the same. The employee simply needs to write a statement in the appropriate format.

The employer is obliged to pay monetary compensation (if any) and give the employee his work book.

At the same time, it is necessary to remember that the employer does not have the right to dismiss an employee on his own initiative while he is on leave without pay.

If an employee wants to resign during the vacation period, then there are no restrictions on this in the law. The only thing that is important is the calculation procedure: the person leaving is obliged to comply with the deadline for completing the application, and the manager is required to carry out the entire dismissal procedure correctly.

Dismissal of an employee during vacation at the initiative of the manager is prohibited according to the Labor Code. An exception is the liquidation of an enterprise or termination of entrepreneurial activity of an individual entrepreneur. Amount of compensation for unused vacation upon dismissal can be determined independently in those offered on thematic sites special accountants (the service is provided free of charge within three days).

Notice period

According to the Labor Code, an employee has the opportunity to terminate the contract with a written warning to the manager two weeks before dismissal. At least two weeks are given to the manager to search for a new applicant for the vacant position.

Sometimes the concept of “warn” is replaced by “work out”. But in the Labor Code there is no such wording “work before dismissal”─ only deadlines for submitting an application, no later than 14 days.

An exception to the rule would be a situation where an employee must quit on a specific day. This may be due to admission to an educational institution, retirement and other situations when the manager signs an order in accordance with the employee’s application.

If an employee leaves his workplace earlier than the due date and without indicating a serious reason, then this possibility must be agreed upon with the manager without fail.

Is it possible to quit while on annual leave? The specialist's commentary can be seen in the video.

Should I recall from vacation?

If the employee has expressed his intention to resign, then It is not advisable to recall him from vacation: He is not currently performing any official duties. Recall from vacation ─ in general, the procedure is not easy ─ it is possible only with the consent of the employee and at the initiative of the employer at the same time. And in our case, he intends to quit without such an initiative.

Until the period of notice to the administration has expired, the person resigning has the right to withdraw the application at any time. Dismissal in such a situation is canceled if another specialist has not yet been invited to fill the vacant position.

Application for dismissal of an employee while on vacation, does not have to be left in person, it can be sent by mail. In this case, the notice period may be later than the person leaving the job planned. The countdown begins the next day after the application is delivered to the manager. The manager is obliged to register a document received by mail in the prescribed manner in the document register and assign the appropriate number.

Vacation in advance

Letter No. 947-6 of Rostrud provides an explanation regarding advance leave. The Labor Code does not provide for the relationship between taking leave of a certain duration in proportion to the period worked. As a general rule, after 6 months. After signing the contract, the employee can take full annual paid leave.

According to the Labor Code, paid leave is provided even before the expiration of 6 months. ─ by agreement of the parties. If the continuous length of service is less than 6 months, upon application of the specified category of employees, paid leave is provided to:

• women during the period before and after maternity leave;
• young employees under 18 years of age;
• workers who adopt infants under 3 months of age;
• in other situations, if they are provided for by law.

Summarizing the list, it can be noted that the manager is not insured against the possibility of employees going on vacation before they have the length of service that grants the right to vacation. Moreover, this right applies not only to new colleagues.

Annual paid leave administration can provide at any time according to the vacation schedule, which is installed at the enterprise. Providing vacation in advance may result in the employee having the opportunity to resign on vacation or immediately after it, and the manager will have to recalculate the vacation pay paid.

How to apply?

The basis for any vacation ─ an order drawn up according to a standard or approved at your enterprise form. A note-calculation on granting leave to an employee is also drawn up using a standard or independently developed form.

If an employee is fired before the end of the vacation, then its duration changes, and accordingly, the amount of vacation pay. The Labor Code does not indicate that the initial vacation order must necessarily be canceled by issuing another vacation order with a different duration. But if you consider that the accountant needs documentary evidence in order to recalculate vacation payments, orders should be issued. And then prepare the calculation for granting leave again, supplementing it with an accompanying memo.

Dismissal during the next vacation is associated, first of all, with submitting an application to the employer. The employee must send an application to the legal address of the enterprise. If the legal and actual addresses do not match, it is better to duplicate the application and send it to two addresses.

In accordance with the norms of Labor Legislation, the manager is not required to sign the employee’s application for dismissal. To do this, it is enough to put a mark on the copy of the document, which then remains with the employee who decides to resign. This copy must also bear the date of receipt of the application.

Calculations

Cases of debt collection from an employee are limited by law, including the return of money for unworked vacation days. It is worth adding that such deductions are classified as rights, not obligations employer.

In cases where there is nothing to withhold overpaid vacation pay from, you should sue the employee or simply ignore the debt. Before making a decision to collect a debt, you need to make sure that the grounds for dismissal provide the opportunity to withhold wages. Cases where deductions are impossible are determined by the grounds for dismissal:

• refusal to transfer to a position required by a medical certificate, or lack of suitable work at the enterprise;
• liquidation of the enterprise or termination of business activities by the manager;
• reduction of staff of an enterprise or individual entrepreneur;
• change of property owner;
• conscription for military or alternative civilian service;
• reinstatement of an employee by court decision (who previously performed this work);
• a medical certificate declaring the employee completely unable to perform his duties;
• death of an employee or manager;
• the occurrence of force majeure circumstances (military actions, disasters, major accidents, natural disasters, epidemics and other emergency circumstances).

When an employee’s dismissal occurred for other reasons, up to 20% of the amount can be withheld from his salary for each payment. These percentages are calculated from earnings reduced by the amount of personal income tax withheld.

Dismissal while on maternity leave

Maternity leave is conventionally divided into two parts: sick leave from the seventh month of pregnancy until childbirth and parental leave. In general, a woman may not work until the child is three years old, and during this period the employer can fire the employee only if the employer liquidates the private enterprise or the entire enterprise.

Dismissal during maternity leave is no different from regular dismissal of employees. Two weeks before the actual dismissal, the woman must notify her employer. It should be noted that during the period of maternity leave and child care leave, a woman’s work experience remains intact. This means that she can count on annual leave or compensation for it.

On study leave

Such a concept “study leave with dismissal” is not in labor legislation, since these formulations are incompatible. If you are dismissed 2 weeks before the end of your educational leave, you do not have to work the required 14 days. The duration of study leave is determined by the application and the date on the summons certificate.

The manager is obliged send an employee on study leave without replacing him with another. If dismissed in such a situation, the employee will receive all compensation, as with a normal dismissal. When dismissing by agreement of the parties, it is not necessary to write a statement. The agreement will indicate the last working day before going on vacation.

An employee who is on vacation can find a job in a new place only after dismissal or part-time employment. Dismissal while on vacation is more beneficial to the employee than the usual procedure - you can receive vacation pay, rest and not have to work a set period. There is one caveat - providing leave with dismissal after it is not the responsibility of the manager. He has the opportunity to dismiss an employee on the last day before vacation with payment of compensation instead of vacation.

At any enterprise, according to the technical specifications, employees must go on vacation. The manager does not have the right to dismiss an employee of his own free will. But there are different situations in life, and if an employee found a new job during vacation or for some other reason decided to quit during this period, the boss has no right to refuse him. You just need to take into account that the procedure for dismissing an employee during the vacation period may differ in some nuances, depending on the type of vacation.

The prohibition for an employer to dismiss employees who are on vacation is provided for in Part 6 of Art. 81 Labor Code of the Russian Federation. It does not apply only in two cases: upon liquidation of the organization, and also if the individual entrepreneur for whom the citizen works decides to cease its activities (Clause 1. Part 1 of Article 81).

Is it possible to resign at your own request while on vacation?

This issue is discussed in detail in Art. 80 Labor Code of the Russian Federation. An employee has the right to submit an application to the employer to resign at his own request during vacation. This must be done two weeks before the expected date. If the manager does not object, this period can be shortened if necessary (for example, if a citizen has found a new job and wants to start it as quickly as possible). The countdown begins the day after the manager signs the application. After two weeks, the citizen will be considered dismissed from the organization. Read the article on how to follow the procedure. It must be entered in the employee’s book indicating the reason.

The employee can also send the application to the manager by mail, by registered mail. After receipt, it is certified and filed with the employee’s personal file. In this case, the notice period for termination of the employment contract will begin later. In some cases, this may be inconvenient for the person leaving (for example, if he wants to quickly find a new job).

Do I need to notify management about dismissal after a vacation?

According to Art. 127 of the Labor Code of the Russian Federation, an employee has the right to go on vacation with subsequent dismissal at his own request. He must first notify the employer of his decision to leave the organization. During this time, the head of the organization will have the opportunity to find a suitable employee to replace the departing one. In this case, a resignation letter is written immediately after a voluntary leave, which a person can take off completely. In this case, the last day of work will be considered the last day of rest granted.

Express your opinion about the article or ask the experts a question to get an answer

Dismissal of one's own free will during vacation on the part of the employee is not limited by the current legislation of the Russian Federation. True, a lot depends on the correctness of the application and submission.

In turn, the employer is prohibited from dismissing employees during vacation (Article 81 of the Labor Code), except in cases where the enterprise or the employer himself ceases its activities.

When an employee resigns from an enterprise or firm of his own free will, it is not necessary to explain the reason, based on the current legislation of the Russian Federation.

However, before dismissal, the employee is obliged to notify his employer of his decision in advance. This is given two weeks. This time is given to the employer so that he can find a new employee for the position.

With rare exceptions, HR department employees may ask to indicate the reason or confirm it with documentation, but in most cases it is enough to indicate in the basis that the dismissal is of one's own free will.

What documents will be required?

In order to resign of his own free will while on vacation, the employee must have an order to do so. This is completed using a special form (T-6a), or the form itself will be developed by the employer. A note on granting leave is also drawn up in a special form established by Rostrud, or by the employer himself.

Next comes the cancellation of the original order. After all, when an employee, while on vacation, wants to quit, the duration of the vacation itself changes, as well as. Since the legislation of the Russian Federation itself does not regulate this issue, it is advisable to first consult with the personnel department in order to eliminate any nuances in the future when registering vacation pay in the accounting department.

Letter of resignation

The employee must indicate the date of dismissal (day, month, year), as well as the basis for dismissal: the first part of the eightieth article of the Labor Code of the Russian Federation.

In addition, the application indicates the full name of the employee, as well as the full name of the employer, in whose name the employee submits an application with the following text: “I ask you to dismiss me from my position at my own request...”. Next comes the date, signature and initials.

Procedure for dismissal

First of all, the employee must submit a letter of resignation to the personnel department, how the application is drawn up and what should be indicated there - we wrote above.

After the application reaches the personnel department of your enterprise or company, an appropriate order is issued to dismiss the employee. The order is issued in a special form (T-8), which indicates a reference to article seventy-seven of the Labor Code of the Russian Federation. The same order also specifies the employee’s details. After completing the order, the employee must read it and sign it.

If for some reason the order cannot be communicated to the dismissed employee, a corresponding signature is made.

What compensation is due upon voluntary dismissal?

In case of such dismissal, the employee is entitled to receive wages from the employer, as well as compensation for unused vacation (if possible) and any other payments that were provided for in the employment contract or the charter of the enterprise itself.

If the vacation was used in advance, a certain amount will be withheld from the final payment after the vacation pay is recalculated in the company’s accounting department.

Does an employee need to work two weeks when leaving voluntarily?

People leaving their jobs often have questions about their own volition.

If an employee, while on vacation, decides to resign of his own free will and has discussed everything with the employer, he may not work for two weeks before dismissal, but spend these days on vacation.

In this case, from the vacation pay that the employee is entitled to, there will be a certain amount.

Dismissal of one's own free will without work is preferable for the employee, but not for the employer. Nevertheless, the enterprise itself, like the employer, cannot refuse to dismiss an employee or refuse to pay the due amount or others, because in this case the enterprise may be subject to administrative penalties and inspections due to violations of the Labor Code.

In an ideal situation, the dismissal agreement was negotiated between the employee and the employer; in other cases, the labor inspectorate will explain to the employer that the dismissal occurs on the exact date indicated in the resignation letter submitted by the employee. Therefore, even if an employee is on vacation on the day indicated as the last day of work at the enterprise, dismissal still occurs without his mandatory presence.
Thus, there is no need to work for two weeks in case of voluntary dismissal while on vacation.

As practice shows, voluntary dismissal during vacation does not cause any particular conflicts between management and employee. However, both by law and out of politeness, you need to notify the company’s management about your decision in advance so that they can find a replacement for the resigning employee. In turn, payments to an employee depend on the employment contract or the charter of the enterprise, as well as on other nuances: whether the employee previously received a salary or not, etc. And remember, correctly executed and submitted documents will protect you from wasting time and oddities that may arise if errors were made when filling out applications.

The Labor Code has long described the requirements according to which dismissal during vacation is possible or, conversely, unacceptable. To begin with, all cases of independent resignation or liquidation of the organization are considered, and the employment agreement will be terminated.

Despite this, labor legislation prohibits the dismissal of a person on vacation. In simple terms, termination of the contract is possible if the employee himself wants it. We must not forget about a number of valid reasons that allow you to resign remotely.

For example, if the interests of both parties, employee and employer, are agreed upon, the employment relationship will be terminated. In addition to the established vacation period, there are other types that differ in their specificity. The employer cannot deprive the employee of his position; dismissal is possible only at his own request or in the event of liquidation of the enterprise/organization. The employee himself can freely contact his superiors by writing a statement. The main thing that should not be forgotten is the procedural and documentary legislative nuances.

Valid cases

An employer cannot terminate the employment relationship with its subordinates based on Part 6 of Art. 81 TK. It is necessary to wait until the end of the vacation period, and then make appropriate decisions. As it became clear, the employment relationship cannot be terminated with a person on vacation. The employer may refer to various reasons:

• lack of proper qualifications;
• frequent absenteeism;
• violation of labor discipline, etc.

Such an initiative will be ineffective, and the decisions taken will be unauthorized. When can you fire an employee? There are several potential options.

If the company ceases to function, then termination of relations is assumed on any day of vacation, both at the request of management and subordinates. In this case, the total duration of rest or the current stage of the work being carried out will not play a special role. After the end of joint activities, the parties should not have any claims or unresolved issues. If some issues cannot be resolved promptly, you can go to court.

A similar situation is encountered at enterprises when the materially responsible person quits during an inventory, and after that a shortage is revealed. If liquidation of an organization is planned, then employees are notified about this 40-60 days in advance.

If the bankruptcy procedure is of a forced nature, the terms must be announced no earlier than two months before the planned date of termination of the employment relationship. The law allows for a reduction in terms of up to several weeks, but such wording must be previously discussed with the employer and reflected in the signed contract.

If a person is faced with a similar situation, then a corresponding note must be made in the work book. There are cases when a company tries to do a pseudo-liquidation, transferring part of its assets to another company, and unnecessary employees must resign of their own free will. Each individual case must be analyzed in detail. In case of violation of the procedure, it is necessary to seek help from the courts.

How to do everything yourself?

Combining vacation and termination of employment is possible in two cases. According to the first option, a person writes a letter of resignation of his own free will, while formally being in it. Or the employee tells his superiors about a vacation with subsequent termination of work.

In both cases, key aspects can be highlighted. Having written a statement of his own free will, the employee can rest for a set number of days, and after leaving, he receives the corresponding payment documents and an order. Vacation time plays a big role in resolving this issue. If it does not exceed 14 days, then it will be possible to stay longer to complete the work.

It all depends on the legislation, according to which the intention to leave must be announced no later than two weeks before leaving work. If rest takes a long time in the work cycle, then after leaving, you most likely will not have to return to work. But do not forget about the deadlines for submitting the relevant application.

The employer provides rest and subsequent dismissal. In this case, you cannot count on receiving compensation for unused days, since the employee receives and uses vacation money. The start of the vacation is used to display the day the employment relationship ends, not the end.

Upon completion of the work, a work book with the appropriate notes is provided, and a calculation is made. Having rested for the prescribed time, going to work is no longer required.

In the case when an employee writes a statement of his own free will and sends it to the address of his superiors, then dismissal occurs without further work. Labor legislation has established standards according to which an employee should not go to work if there is a period of at least 14 days left after submitting the resignation document.

For any manager, knowledge of legislation is simply necessary, since the further development of the organization will depend on it. There must be a resignation letter, even if it is submitted at the employee’s own request and contradicts the initiative of management. This rule is reflected in the corresponding article. 81 TK.

How to avoid making a mistake?

Not every person knows the rules for submitting care documentation. Regardless of location, an employee can send an application of his own free will to the address of the organization itself. A prerequisite is that the legal address of the organization must be indicated, not the address of the management. In the case where the actual location differs from the legal location, you can send the document in both directions.

This is done so that after leaving the employer does not begin to manipulate the person, saying that the application was sent to another address and therefore was not considered on time. After this, as a rule, legal proceedings ensue, but to avoid an unpleasant situation, you must save all mail notifications confirming the fact of receipt.

Quitting while on vacation is a normal practice that is protected by law. You can write a document and send it to the appropriate address without fear that the employer will not want to review or sign it. By using labor standards that state that the employer is not required to sign incoming applications, you can stop worrying.

After this, the employee must receive a second copy with a note indicating the date of its receipt, since the working period begins from the next day. In order not to waste time on legal proceedings, it is necessary to periodically refer to the norms prescribed in the Labor Code.

Article 80 of the Labor Code states that the contract can be terminated while on vacation, the main thing is not to forget that you must learn about leaving no later than 14 days before it. After receiving the document, the manager cannot influence the employee and force him to stay. There are no legal grounds for such actions. Upon completion of work, a work book and payment instruments are issued.

Alternative options

An employee may not write a letter of resignation, citing good reasons:

• retirement;
• the beginning of the educational process;
• recorded violations during work by management, etc.

Each specific case is analyzed and an appropriate decision is made based on the results. The fact of violation of the law discussed above can be proven during a trial or after receiving orders from the labor inspectorate. The employee himself should not consider himself disadvantaged if his personal interests diverge from the interests of the management elite.

Judicial practice knows cases when a worker was exempted from working. Such precedents occur in the event of a move or serious illness of a close relative. Even while on vacation, you can count on receiving some concessions. The person will not take up time from his superiors, which they will use to find a replacement.

Labor Code norms do not establish the exact procedure for terminating an employment relationship, but, according to the explanations of the labor inspectorate, leaving must be approved after receiving the appropriate document, if this does not violate the established norms. Write a document and leave the organization, what could be easier?

Speaking of maternity leave, leaving is authorized only if the letter reflected the true desire of the employee. If it is not possible to take the document to management, then this can be done by mail. Quite often there are cases where young mothers are forced to write a letter of resignation, but such an approach would be illegal.

Many mothers often wonder how they can resign from their position if they have a small child. According to the first option, a written agreement is drawn up, where both parties remain in their interests. Postal delivery is an alternative option. In addition, child care exempts you from completing 2 weeks of work.