By general rule the day of dismissal is considered the last working day of the dismissed employee, regardless of the reason for termination employment contract. Except for cases when the employee was not actually at work, but at that time he retained workplace/ position (Article 84.1 of the Labor Code of the Russian Federation). For example, in a situation where an employee quits due to at will, .

If an employee takes a vacation with subsequent dismissal, then his last day at work is the working day preceding the first day of vacation. And on this day, the employer must formalize the termination of the employment contract with him (clause 2 of the Constitutional Court of the Russian Federation of January 25, 2007 N 131-О-О).

It happens that the dismissal date falls on a weekend, for example, if the employee shift schedule and he quits of his own free will, and therefore must work for 2 weeks (Article 80 of the Labor Code of the Russian Federation). Then the employee’s dismissal occurs at.

What should an employer do on the day of dismissal of an employee?

As mentioned above, the employee’s last working day is the day of dismissal. It is paid by the employer in general procedure, i.e., the employee must be paid a salary for his full work. And the employer can hire a new employee for the vacated position on the next working day. On the day of dismissal of the previous employee, it is better not to do this, so that it does not turn out that you have 2 people in one place at the same time.

On the last working day, the employer must issue an order to dismiss the employee and familiarize him with this order against signature. If this is impossible to do because the employee cannot or does not want to go to work, then this fact must be recorded, at least on the order itself.

In addition, on the last day of work, it is necessary to issue the dismissed employee a work book and other documents related to his work activity, as well as make a full payment (Article 140 of the Labor Code of the Russian Federation). If he does not show up for work, then with his consent the work book can be sent to him.

Day of dismissal for compensation calculation purposes

In addition to the salary on the last day of work upon dismissal, the employee must be paid compensation for unused vacation days, if the employee has any. The calculation period for determining the amount of compensation is 12 calendar months preceding the month of dismissal (

The employer is obliged to make a full payment to the employee on the day of his dismissal. What day is considered the day of dismissal? And does it always coincide with the last working day?

In Art. 84.1 of the Labor Code of the Russian Federation states that the employee terminates his labor activity on the day of termination of the employment contract. This is called the actual day of dismissal.

But there are cases when the employee is actually absent from the workplace on that day, although the workplace was reserved for him. For example, an employee is a watchman and works on a schedule every other day. His last shift was May 15, and his dismissal day was May 17.

In Art. 14 of the Labor Code of the Russian Federation states that upon dismissal of his own free will, the employee must notify the employer 14 calendar days in advance. This general rule, and there are exceptions to it when the warning period is slightly reduced.

The countdown of these 2 weeks begins from the next day after submitting the application to the employer. Not from the day it was written, but from the day it was submitted.

For example, an employee submitted an application to the employer on May 5. Therefore, the countdown will begin on May 6, and the last working day will be May 19.

If the last working day falls on a weekend or holiday, the last working day will be the next working day. The same day will be considered the day of dismissal.

In a resignation letter on your own initiative, you do not need to write the pretext “with” - “I ask you to dismiss me of your own free will from May 19.” It only introduces a double meaning into the statement itself. Some not very experienced personnel officers begin to get confused - May 19 is the last working day of this employee, or on May 19 he will no longer go to work.

Hence the confusion with payments and compensation.

Therefore, you need to write “I ask you to fire me of your own free will on May 19.” That is, on May 19 this employee no longer goes to work, and the last working day is May 18.

If an employee “parts” with the employer by agreement of the parties, then the parties themselves negotiate the date of dismissal. The agreement states that “the day of dismissal is May 19.”

If an employee resigns while on vacation, he must also submit an application 2 weeks in advance and indicate the date of dismissal. As practice shows, this is the last day of vacation.

If an employee resigns at the initiative of the employer, then the last working day, also known as the day of dismissal, is indicated in the notice of dismissal. An exception is dismissal for unjustified absenteeism. Here, as a rule, the day of dismissal and the last working day do not coincide.

For example, an employee did not show up for work on May 13 and did not notify the employer. He only showed up for work on May 18 and was unable to provide his employer with evidence of valid reasons.

The procedure for recording absenteeism and drawing up all the necessary papers will take some time. Most likely, the dismissal order will contain the date “dismissed for absenteeism on May 18.”

Date of dismissal - considered the last working day or not? In practice, this question arises everywhere. Our material will help you get an idea of ​​what the dismissal date is.

What is the day of complete dismissal from work according to the Labor Code of the Russian Federation, is it paid or not?

The day of dismissal is the last day on which a person is considered to be on the employer’s payroll. But Is the day of dismissal considered a working day? or does the employee not have to work on this date? Any day can be a working day, even if in fact the employee was not working at that time, but his place of work remained assigned to him (Article 84.1 of the Labor Code of the Russian Federation).

The law as a whole does not prohibit dismissal during sick leave, day off or vacation (with some exceptions), so not in all cases day of dismissal - last working day.

The question of the need and amount of payment for the day of dismissal directly depends on whether it will be worked off or will be a day off, sick leave, etc.

It is on the last day of the employee’s stay on the staff that he must be given a work book and the copies of documents he requested, and all due amounts must be transferred.

When should an employee be fired if he is on sick leave?

It is prohibited to terminate an employment contract with an employee on sick leave if the grounds (excluding the liquidation of the company) relate to the will of the employer (Part 5 of Article 81 of the Labor Code). Then the employer is forced to wait until the employee closes his sick leave and comes to work.

Don't know your rights?

In all other cases (dismissal by agreement of the parties, at the request of the employee, etc.) there are no restrictions on dismissal during sick leave. If an employee is away from work on the relevant day, you need to send him a letter notifying him of the need to come for labor and payment.

Effect of vacation on the date of dismissal

Everything said above regarding sick leave also applies to cases where an employee is on vacation on the day of termination of the employment contract (regardless of the type of vacation). Additional nuances arise when an employee asks for annual leave along with dismissal. In such a situation the day of dismissal of the employee is considered last day of vacation (Article 127 of the Labor Code of the Russian Federation).

However, the date of the final payments is moving - the employer is obliged to make them (as well as issue the labor certificate) on the day before the employee goes on vacation. Moreover, in the event of his illness, the rest time does not increase (letter of Rostrud “On vacation ...” dated December 24, 2007 No. 5277-6-1). The employee will no longer be able to change his intention to quit while on such leave.

On what day should one be fired if the day of dismissal is a day off?

If on the date of termination of the employment contract the employee is scheduled to have a non-working day, then he definitely cannot be fired on the previous working day. Thus, if an employee quits on his own initiative, his right to withdraw his application at any time within 2 weeks will be violated (appeal ruling of the Moscow Regional Court dated July 1, 2013 in case No. 33-12747/2013).

The law does not contain a direct ban on dismissal directly on holiday. However, there is judicial practice, from which the following conclusion can be drawn: dismissal of an employee on his day of rest is illegal (JSC Khabarovsk Regional Court dated May 16, 2012 in case No. 33-3001). It is recommended to follow the rule prescribed in Part 4 of Art. 14 of the Labor Code of the Russian Federation, and carry out dismissal on the next working day after the day off.

The above court decision dealt with dismissal at the will of the employer. At the same time, if an employee deliberately indicated a “non-working” date in the application, his dismissal at a later date, on the closest working day, may be regarded as a violation of his rights.

1. Ask the employee to write the application again, with the “correct” date.
2. If the employee does not agree, still make the dismissal on a day off (this does not contradict the law), if necessary, calling the personnel officer and accountant to work.

Thus, when determining the date of dismissal, it is important to take into account all the nuances. A mistake can lead to serious troubles for the employer, for example, in the form of an employee appealing dismissal in court.

Many employees, regardless of their place of work and organizational structure, cannot immediately determine which day is considered the last day of dismissal.

In the event that such difficulties arise, the first thing you should look at is the Labor Code Russian Federation. And find out from the organization’s administration whether it agrees to the dismissal of its employee.

Article 80 Labor Code The Russian Federation says that an employee has the right to terminate an employment contract by notifying his employer in writing at least two weeks in advance. Upon completion given period the employee may stop working and demand payment from his superiors. It is also possible to dismiss an employee until the end specified period notice of dismissal, but only with the consent of the employer and the employee himself. The employer and employee can also come to an agreement regarding the specific day of dismissal.

In some cases, management must terminate the employment contract on the day specified by the employee in the application. Such situations include the inability of an employee to continue his activities for one reason or another. For example, due to enrollment in a university or technical school as a full-time student, or because of moving, or because of retirement, etc.

Nuances associated with dismissal

Article 84.1 of the Labor Code of the Russian Federation states that by terminating an employment contract, an employee ends his activities in the organization on the day of termination of the contract. This day will be his last working day in this company. The only exception is the case when the employee, despite officially maintaining his job, was not present there.

According to Article 14 of the Labor Code of the Russian Federation, the official date of warning to management about dismissal is the next day after the submission of the application itself. Accordingly, the countdown of two weeks begins from this day.

That is, if the application was submitted to the manager for consideration on March 1, then the countdown of two weeks will begin on March 2.

It is also important to remember that if the last working day happens to be a weekend, then it is skipped, and the official last working day will be, for example, the Monday after the weekend. Or the first working day after the holidays.

When submitting an application to grant an employee leave with further dismissal, the last working day will be the same as the last day of leave. This situation is possible only if the employee is dismissed at his own request, but not at the request of the employer.

It is important to remember that on the last working day, management must provide the resigning employee with all documents related to his work in this organization. And also, upon the written request of the employee, make the final payment.

The last day of work of an employee is usually considered the day of termination of the employment contract concluded with him for any reason. Labor legislation provides for some cases in which the specified days do not coincide.

Instructions

As a general rule, the last working day of any employee is the day of termination of the employment contract concluded with the employer. It is on this day that the organization has obligations stipulated by labor legislation for final payment and issuance of work-related documents. In addition, after the end of the last working day, the vacated position is considered vacant, and another person can be hired for it.

If an employee takes a vacation with subsequent termination of the employment contract, then his last working day is the day after which the vacation begins. But the specified day does not coincide with the termination of the employment contract, since this employee is considered to be in labor relations with the company until the end of the vacation. From the moment such leave begins, the employer can accept another employee for the position, since an employee who has gone on vacation with further dismissal can no longer change his decision (for example, withdraw his resignation at his own request).

The employee's last working day does not coincide with the day of termination labor agreement also in other situations in which the employee does not actually perform duties during the remaining period of work before dismissal. But at the same time, the employee retains his earnings; he is considered to be in an employment relationship.

The day of termination of the employment contract is the last day of work, except for cases where the employee did not actually work, but, in accordance with the law, retained his position. So, in particular, the date of termination of the contract may fall on the day when the employee:

• is on sick leave;
• is on vacation (in particular, when an application for payment at his own request was submitted by him during the vacation period or before the vacation and at the end of the warning period the vacation had not yet ended, or the employee was granted vacation with subsequent dismissal on the basis Art. 127 TK);
• absent from work for other reasons.

So, let's look at the possible options:

When settlement falls on a working day

For personnel officers, this option is optimal and does not raise any questions. But when submitting an application of their own free will, employees often do not know whether the day of dismissal is considered a working day or not, and therefore, having written in the application “I ask to be fired on December 10,” they believe that on December 10 they can no longer go to work at all or appear only for in order to take away the labor and say goodbye to former employees. Alas, since by law the date of dismissal is considered the last working day, it must be worked off. Therefore, when accepting a resignation letter from an employee or signing an agreement, it is advisable to explain to him all the nuances of the future separation.

When is the last day a weekend or holiday?

There are two possible situations here. According to Art. 14 Labor Code of the Russian Federation, if the last day of the period falls on a non-working day, then the end date is considered to be the next working day following it. Therefore, if the date of termination of the contract coincides with a weekend or holiday, the day of dismissal of the employee is the next working day. Moreover, the duration of the holidays does not matter. So, for example, if the notice period ends on the weekend of December 30, 2017, then the employee’s departure will take place only after the end of the New Year holidays - January 9, 2018.

And if an employment contract is terminated with an employee who has a shift work schedule, then the day of the employee’s dismissal is considered the date of his last work shift, including one that falls on an administrative non-working day. In any case, this is precisely the position adopted by Rostrud (letter Federal service on labor and employment dated June 18, 2012 No. 863-6-1). And here problems arise for the employer - you need to bring a personnel officer and an accountant to work, pay them double payment, and they may not agree to work on their day off.

Such situations usually arise when dismissal is initiated by an employee, since often, when submitting an application two weeks in advance, a person simply does not pay attention to the fact that the notice period ends on a non-working day - for himself or for the administration. Therefore, the personnel officer should pay attention to these points when accepting the application, and agree with the employee on the last working day upon dismissal that suits both parties.

Can they be fired while on sick leave, on vacation or during a business trip?

It is impossible to dismiss an employee during a period of temporary disability or regular vacation only on the initiative of the employer. In all other cases, illness or vacation is not an obstacle to terminating an employment contract. It is also quite acceptable if the termination of the contract occurs on the last day of the business trip. It is acceptable, but not advisable, since the employee will not be able to receive the work book on time, and you will have to send him the corresponding notification by mail. Yes, and with the calculation, questions may arise.

Judicial practice

N. filed a lawsuit for reinstatement at work, payment wages during forced absence.

At the court hearing, it was established that N. submitted a letter of resignation of his own free will. Three days before the date of dismissal, N. went on sick leave and was ill for two weeks. The employer terminated the employment contract with the employee on the day specified in his application. However, N. believes that he was fired illegally, because at that time he was on sick leave and changed his mind about leaving work.

The court refused to satisfy N.'s claims, pointing out that the prohibition on terminating an employment contract during a period of temporary incapacity for work by an employee does not apply to cases of voluntary dismissal.

Responsibility for violations

According to Art. 84.1 Labor Code of the Russian Federation, on the day of dismissal, the employer is obliged to issue the employee a work book and make payments to him. The law provides financial liability employer:

• for delay in delivery work book- in the amount of average earnings for the entire period of delay;
• for late payment of settlement payments - in an amount not less than 1/150 of the Central Bank key rate in effect at that time of the amounts not paid on time for each day of delay.

In addition, for violation labor legislation administrative responsibility has been established. For a delay in issuing a work book or paying wages, an organization may be fined up to 50,000 rubles.