The employee quits. His work schedule and that of the administration do not always coincide. The last work shift may fall on Sunday, when the HR and accounting departments rest. Conversely, on the last day of the employment contract, the personnel officer and accountant may be on site, and the employee himself may have a day off. Let's figure out what to do in these cases.
The procedure for dismissing employees is the same for all employers. It is established by Art. 84.1 of the Labor Code. On the day of termination of the employment contract, the employer is obliged to issue a work book and all necessary documents to the employee against signature, and also to make a full settlement with him in accordance with Art. 140 of the Labor Code (Part 4 of Article 84.1 of the Labor Code of the Russian Federation).
Regardless of the grounds for termination of an employment contract with an employee, the day of dismissal is considered the last day of his work. Exceptions are situations in which the employee did not actually work, but his place of work was retained in accordance with Russian legislation. This is stated in Part 3 of Art. 84.1 of the Labor Code. This means that dismissal is possible on any day, including weekends. The Labor Code does not contain any specific articles defining the procedure for dismissal on non-working days.
Let's figure out what an employer should do in situations when the last day is a day off for the dismissed employee and when it is a day off for employees of the accounting department and personnel department.
Please rewrite the application
The employer can try to negotiate with the employee. For example, ask to rewrite the application and indicate a different, “working” date of dismissal. If the employee refuses, the employer does not have the right to unilaterally change the termination date of the employment contract. Unjustified dismissal of an employee on a different date is a violation of his rights, in particular the right to withdraw his resignation letter (Part 4 of Article 80 of the Labor Code of the Russian Federation).
Note. Payments on the day of dismissal
On the day of dismissal, the employer is obliged to make a full settlement with the employee and pay all amounts due to him, namely:
- wages for the time actually worked in the month of dismissal;
— compensation for all unused vacations;
— severance pay in cases specified by law.
The amounts of compensation for unused vacation and severance pay are calculated based on average earnings in accordance with:
- from Art. 139 Labor Code;
— with the Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922.
The Labor Code gives the right to an employee who has written a letter of resignation of his own free will, before the expiration of the notice period for dismissal, to withdraw his application at any time, that is, before 24 hours of the last day of the period (Part 4 of Article 80 of the Labor Code of the Russian Federation, Ruling of the Supreme Court of the Russian Federation dated 08/10/2012 N 78-KG12-10).
The employer has the right to refuse an employee to withdraw his resignation letter in the following cases (Part 4 of Article 80 and Part 4 of Article 127 of the Labor Code of the Russian Federation):
- an employee who is on vacation with subsequent dismissal did not withdraw his application before the start of the vacation;
- an employee who is going on vacation with subsequent dismissal has withdrawn his application, but another employee has already been invited to take his place by way of transfer;
- another employee is invited in writing to replace the employee, who, in accordance with labor legislation and other federal laws, cannot be refused to conclude an employment contract.
Non-working days for the administration
A non-working day for an employee does not prevent his removal from office, but days off for the administration of the enterprise can significantly affect this process, because a person is not legally required to work on holidays and weekends.
In the event of termination of the contract between a company and an employee working in shifts, the date of the last working day may be not only his shift, but also a day off.
If the personnel department is not working at the time of the employee’s resignation, then the manager cannot postpone the date of dismissal for this reason. The head of the company is obliged to ensure that the dismissal procedure is carried out under any conditions. To do this, he should recall the HR department or a certain person from vacation, compensating him for the lost rest time in double amount or providing him with another day off.
This situation is subject to detailed consideration. For example, the entire administration of the company works full-time with fixed days off on Saturday and Sunday. The company's employees work in shifts, regardless of the day of the week. Ivanov S.P. submits his resignation of his own free will.
In accordance with the contract, he must work for the company for another 14 days. His last working day falls on September 20 (Sunday).
Can the manager issue a work book to Stepan Pavlovich on Friday the 18th if the contract date ends on Sunday? The answer to this question will be negative. The employee must be fired on Sunday the 20th. The manager must resolve all subsequent details directly with the administration.
Still, we're firing on the weekend
From the text of Part 3 of Art. 84.1 of the Labor Code does not mean that the dismissal of an employee is allowed only on a working day for him.
Dismissing an employee on his day off does not contradict the Labor Code.
Please note: in some cases, the employer should not even try to change the date, for example, when dismissal due to staff reduction. If the employee is not dismissed within the period specified in the notice of the upcoming layoff, or after the expiration of a two-month period from the date of notification, then the employment relationship with him continues. And the entire dismissal procedure will need to start all over again.
If an employee is absent from work on the day of dismissal (his day off), the employer should:
- send him a notice of the need to appear for a work book or give consent to send it by mail (Part 6 of Article 84.1 of the Labor Code of the Russian Federation). From the date of sending this notification, the employer is released from liability for the delay in issuing the work book;
— make a settlement with the employee no later than the day following the day the latter presented the corresponding demand (Article 140 of the Labor Code of the Russian Federation).
Example 1. The organizer of entertainment events D.L. Zatevakhin wrote an application for leave with subsequent dismissal. The vacation began on November 14, 2014, and will end on November 28, 2014 - this is his day off. On November 29, he would have gone to work according to his shift schedule.
On what day should an employee be fired?
Solution. When granting leave with subsequent dismissal, the employee does not retain his job during this leave. As a general rule, the day of termination of an employment contract is the employee’s last day of work - November 13, 2014, but this day in this case is not the day of dismissal.
On this day, November 13, 2014, the employer is obliged to issue D.L. Zatevakhin a work book and make a full settlement with him (clause 1 of Rostrud Letter dated December 24, 2007 N 5277-6-1). Upon his written application, it is also necessary to provide him with duly certified copies of documents related to the work (part 4 of article 84.1 and part 1 of article 140 of the Labor Code of the Russian Federation).
The day of dismissal is the last day of vacation - November 28, 2014. Even if the last day of vacation falls on a weekend, the vacation is not extended. And the end date does not change (part 2 of article 127 of the Labor Code of the Russian Federation, clause 2 of the Determination of the Constitutional Court of the Russian Federation of January 25, 2007 N 131-O-O). The exception is holidays established by Art. 112 of the Labor Code (Part 1 of Article 120 of the Labor Code of the Russian Federation).
How to fire if the last date falls on a non-working date, and what date should the order be made?
Termination of the contract during non-working hours is carried out according to the standard algorithm:
- the personnel service issues an order (based on an application from the employee, an agreement between the parties and other documentation);
- The employee should be familiarized with the paper against signature;
- the corresponding entries on the termination of the contract are entered into the employee’s personal card and work book;
- on the last day, payments are settled with the citizen and work documentation is issued.
A special feature of dismissal on a non-working day is the need to correctly enter the dates on the papers in order to avoid violation of labor laws and the rights of the employee.
The recommended procedure for termination and documentation depends on the circumstances of termination of the labor relationship of the parties:
- The employee has a day off, while the administration is working.
This situation arises, for example, when working a shift schedule or writing a letter of resignation while on vacation. The dismissal procedure is carried out on the current day. The order is issued on the date of termination of the relationship, the employee is invited to sign the documentation and issue a work book. If the employee does not show up at the organization, he is sent a notification with a request to pick up the papers or give consent to send them by mail. The calculation in the absence of a person is provided no later than the next day after receiving the request from him. - It’s the administration’s day off, the employee’s last day of work.
For example, a citizen’s work shift falls on Saturday or Sunday. In this case, the procedure for terminating the contract will not be postponed; the order must be issued on the day of dismissal (weekend). Working documentation and calculations are also provided on non-working days. For this purpose, employees of the HR department and accounting department are involved in working on weekends, for which they are provided with double pay or the right to an additional day of rest. - The employee and the administration have a day off. In this case, the date of dismissal is transferred to the next working day. The order indicates the date of termination - the last working day.
- At the end of the term of a fixed-term contract, a dismissal order can be issued either directly on a day off, on the next working day, or the day before. In the latter case, the actual date of departure is indicated in the document.
- By agreement with the employee, it is possible to terminate the contract on the eve of a weekend or holiday (on the last working day). Then the order is dated by the final working date, the day of dismissal is indicated as a day off. The work book is issued and payment is made the day before.
A worker works a shift
If an employment contract is terminated with an employee who has a shift work schedule, the date of termination of the employment contract is the date of the last working day, including those falling on a weekend or non-working holiday. This is stated in the Letter of Rostrud dated June 18, 2012 N 863-6-1.
In the event that the last working day of a resigning employee coincides with a day off for company administration employees, the Labor Code does not provide for the possibility of transferring the performance of their duties in accordance with Art. 84.1 of the Labor Code. That is, despite the HR officer and accountant’s day off, the employer is obliged to ensure that the procedure for dismissing the employee is followed. To do this, he has the right to involve employees of the personnel department and accounting department to work on a day off (Part 2 of Article 113 of the Labor Code of the Russian Federation). In this case, the employer is obliged to compensate them for work on a day off outside the established schedule: pay for the time they work on a day off at least double the amount or provide them with another day of rest (Parts 1 and 3 of Article 153 of the Labor Code of the Russian Federation).
Example 2. The company's accounting and human resources department work on a five-day work week with two days off - Saturday and Sunday, while other company employees work on a shift schedule.
The organizer of entertainment events N.K. Shalnykh submitted his resignation at his own request. Taking into account the two-week work period, the dismissal date fell on November 30, 2014 - Sunday. This is his last day of work.
Is it possible, with the consent of N.K. Shalnykh, to issue him a work book and make the final payment on November 28 - Friday, but with a dismissal date of November 30, 2014?
Solution. No, the employee must be fired on November 30, 2014.
The employee is given a five-day workday
If we are talking about the dismissal of an employee who has a regular, non-shift work schedule, then the provisions of Art. 14 of the Labor Code on the passage of time in labor relations.
The flow of time periods associated with the emergence of labor rights and obligations begins from the calendar date that determines the beginning of the occurrence of these rights and obligations (Part 1 of Article 14 of the Labor Code of the Russian Federation). Obviously, this date is the date the employee was hired, and the term itself is nothing more than the period of work in the organization.
In Part 4 of Art. 14 of the Labor Code establishes that if the last day of a term (period of work in an organization) falls on a non-working day, then the day of expiration of the term is considered to be the next working day following it.
It is also obvious here that the last day of the term is the day of dismissal.
Example 3. All company personnel work on a five-day work week with two days off (Saturday and Sunday). The employee exercised his right to terminate the employment contract and warned the employer about the upcoming dismissal no later than two weeks, namely a month in advance (Part 1 of Article 80 of the Labor Code of the Russian Federation).
Solution. The employee indicates a non-working holiday (November 4, 2014) as the date of dismissal in his application. In this case, the manager has the right to postpone the day of dismissal to the next working day - November 5.
Termination of contract with employees with privileges
The Labor Code of the Russian Federation describes situations when the employer is obliged to formalize dismissal on the day the application is submitted. We are talking about situations where an employee may not give notice of his intention to terminate the employment agreement, for example, when retiring or being called up for service.
Based on Art. 14 of the Labor Code of the Russian Federation, if the date specified in the employee’s application is a day off or an official holiday, then the employer has the right to complete all paperwork on the next working day. However, there are situations when there is no time to wait, for example, a conscript needs to arrive at the appointed place on Monday, but he works until Saturday inclusive. In this case, by special order of the manager, all persons responsible for issuing the work book and the final payment are involved in performing duties during non-working hours.
How to find a compromise with an employee: practical experience
Postponement of the last day of the notice period for dismissal, in accordance with the requirements of Art. 14 of the Labor Code, for the next working day is not always acceptable for the employee. After all, he could agree to go to another job that day and plan any other things.
The Labor Code does not provide any relief for these cases. But the parties to the employment contract can find a compromise solution, for example, by changing the basis for termination of the employment contract to dismissal by agreement of the parties (Article 78 of the Labor Code of the Russian Federation).
In this case, the employee loses the right to change his decision to quit, but will be able to leave without working for two weeks, and possibly with compensation.
What is more profitable - to pay for working on a day off, compensation - will be decided by the employer himself in each specific case.
Answers to frequently asked questions (to summarize)
If the dismissal date falls on a weekend, what day should you dismiss?
To accurately answer the question, it is important to understand whether the day of termination of the employment contract was a day off for the employee or not. If he worked on that day, then he should be fired on that day. If you didn’t work - according to Art. 14 of the Labor Code of the Russian Federation, he will need to be fired on the next working day, for example on Monday. However, this may disrupt the employee's plans. Perhaps on Monday he will have to go to work in another organization. Then both the employee himself and the personnel officer and accountant will have to go to work (we wrote about this above).
If the dismissal date falls on a weekend, when should the order be made?
The order, of course, can be prepared in advance, as soon as an application has been received from the employee and management has decided not to object to the termination of the contract. As for the date of the order, there is a controversial point. Experts suggest, by agreement with the employee, date the order on the last working day before the date of dismissal (and issue all documents on the same day). In the work book, the date will be a day off, and the date of the order will be the day before. However, there is a danger in this method: the employee may change his mind on the last (day off) day and complain to the Labor Inspectorate that he was deprived of this right. To avoid this, it is better to document the agreement with the employee to complete all formalities on the eve of the day of dismissal (this could be a personal statement from the employee with a request to issue documents and make payments on the agreed working day).
If the day of dismissal falls on a weekend, when should the amounts due upon termination of the contract be paid?
As in the situation described above, it is recommended that all payments be made on the eve of the employee’s last day of work - on the last working day.
Calculation
According to Art. 84.1 of the Labor Code, on the last day of work, a citizen receives final payments from the employer:
- salary for the period worked;
- vacation compensation;
- severance pay, if it is provided for by the provisions of the collective agreement in force in the company.
The final payment is made on the same day when the citizen receives the work book and other documents from a representative of the company’s personnel service. If a day off is chosen for these purposes, for example, Saturday or Sunday, then the required payments are issued to the citizen on the same day. To do this, you have to call an accountant and a HR employee to work. If funds are provided in cash, then you additionally have to hire a cashier.
Important! Persons who go to work on their day off receive double wages for such activities.
Dismissal on a day off during a shift work schedule
Termination of a contract during a shift work schedule also raises many questions. For example, if the person leaving works in shifts, and the accounting and personnel departments work on a five-day work week. A clear answer to this is given in:
“An employee working on a shift schedule must be fired on the last working day, even if it falls on Sunday or Saturday. If necessary, the employer can involve an accountant and a personnel department employee. The same rule applies to those who quit on a holiday.”
Example. The employee submitted her resignation on April 1. She works every other day or three. The employer told her to work for two weeks. The end of her work is on Saturday, April 15, she must start her shift. But you will have to work not a day, but until midnight, because from Sunday the work period is considered over.
Read: Dismissal due to redundancy: what employees need to know
