Is the day of voluntary dismissal considered a working day or not, and what is the procedure for paying it?

Is it possible to change the date of dismissal?

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As a general rule, the date of dismissal from office cannot be changed. It shifts only taking into account holidays or weekends. The parties can agree on a specific date of dismissal only if they formalize the termination of the contract by agreement of the parties.

Thus, the dismissal date is determined as follows: it always falls on a weekday. The exception is situations when an employee cannot go to work for valid reasons. The HR department should carefully check whether the dismissal date falls on a working day or a weekend to avoid violations of the law, resulting in fines and lawsuits.

Is it possible to fire an employee on a day off?

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 (letter of the Ministry of Labor of Russia dated February 28, 2018 No. 14-2/B-121).

The day of termination of the employment contract in all cases is the last day of work of the employee (Article 84.1 of the Labor Code).

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.

Rostrud drew attention to this in letter dated June 18, 2012 No. 863-6-1.

The employee must be familiarized with the order to terminate the employment contract against signature.

At the request of the employee, the employer is obliged to provide him with a duly certified copy of the specified order (instruction).

If the order to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it against signature, a corresponding entry is made on the order.

In addition, the employer is obliged to issue the employee a work book on the day of termination of the employment contract and make final payments to him in accordance with Art. 140 of the Labor Code.

If the last day of the term of the employment contract falls on a non-working day, then the end of the term is considered to be the next working day following it (Article 14 of the Labor Code).

Taking this into account, if an employee is fired on a day off, the Ministry of Labor admits that the employee can receive the final payment and work book on Monday (letter of the Ministry of Labor of Russia dated October 25, 2018 No. 14-2/OOG-8496).

But for the final calculation and issuance of a work book to the employee, you can proceed as follows:

send the employee a notice of the need to appear for a work book or agree to have it sent by mail. 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).

This procedure in case of dismissal of an employee on a day off was proposed by the Ministry of Labor in letter No. 14-2/B-121 dated February 28, 2018.

What is an employee required to do during the working period?

If an employee resigns voluntarily, he must perform his job duties for another two weeks. Work begins the next day after submitting documents to the employer. The working hours do not change; the employee has the right to days off. Also at this time he may get sick or go on vacation.

The following have the right to leave without work:

pensioners;
pregnant women;
adoptive parents of minors under 14 years of age;
persons admitted to an educational institution for full-time study;
employees subject to disciplinary liability;
workers moving to another region or abroad;
citizens caring for a disabled person or a child under 14 years of age.

So, the parties have the right to agree on dismissal without work. In addition, there is a special category of persons who are not required to work. They have the right to leave the employer at first request.

Dismissal during vacation or sick leave

Dismissal at the initiative of the employer while the employee is on vacation or sick leave is prohibited. If he wrote a statement of his own free will, there are no legislative obstacles.

The norms of Article 84 of the Labor Code of the Russian Federation provide that if an employee was absent during the termination of relations with the employer for a good reason - for example, he was on vacation - then the last working day is determined differently:

If this date falls on the day when the person fell ill and received a certificate of temporary incapacity for work, and he was fired at the initiative of the employer, this will be the nearest weekday after leaving sick leave. By the way, this is a comprehensive answer to the question: can someone be fired on sick leave? They can’t do it while on sick leave, but immediately after it closes, please. If the employee wrote an application to terminate the contract at his own request or by agreement of the parties, during the termination of the employment relationship he may also be on sick leave.
If an employee received leave with subsequent dismissal, then the day of dismissal of the employee is the final day of his leave.

Questions

When is final payment due?

Full payment is made to the employee at the time of leaving work. He is given a work book, the requested documents, and is also paid wages for the time worked. Additionally, compensation is provided for unused vacation.

When laid off, the employee receives severance pay and payments for 2-3 months. If a citizen is absent from the workplace, the payment is issued the next day or upon his first request.

What happens if you violate the terms of payment upon dismissal?

It happens that companies violate deadlines and do not make payments on the day of dismissal. In case of absenteeism of an employee, the company is not subject to punishment, since the employer’s actions are not at fault.

This is also important to know:
What certificates must an employer issue when dismissing an employee in 2021?

For violation of the final payment deadlines, the organization will be punished in accordance with administrative legislation. The fine amount is from 1,000 rubles. up to 50,000 rub. The employee also has the right to file a civil lawsuit to recover penalties. It is 1/150 of the refinancing rate of the Central Bank of the Russian Federation. For a delay in issuing a work book, the company will pay compensation in the amount of average earnings for the entire period of delay.

How to write a resignation letter?

The resignation letter is written in any form. It is advisable to calculate the moment of termination of the contract so that it coincides with weekdays. It is recommended to specifically state the date of dismissal without the preposition “from”: “I ask you to dismiss at your own request on January 25, 2019.”

Is it possible to find a compromise with an employee if the day of dismissal falls on a weekend?

It happens that dismissal must be formalized on a weekend or holiday. The employee may be against moving the date of termination of the employment contract forward. Especially if he has agreed on employment at a new place of work.

In such a situation, it is possible to terminate the employment relationship by agreement of the parties by agreeing on a more convenient day. In this case, the employee will no longer be able to withdraw his resignation letter of his own free will, but he does not have to work for 2 weeks.

What day is considered the day of dismissal?

According to Art. 84.1 of the Labor Code of the Russian Federation, the day of termination of the employment contract is the last day of work, with the exception of cases when the employee did not actually work, but, in accordance with the law, his position was retained. 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 of Article 127 of the Labor Code);
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 of the 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 31, 2019, then the employee’s departure will take place only after the end of the New Year holidays - January 9, 2019.

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 of the Federal Service for Labor and Employment dated June 18, 2012 No. 863-6-1). And here problems arise for the employer - they have to bring a personnel officer and an accountant to work, pay them double pay, and they have the right not to 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.

What to do if your resignation letter is not signed

In this case, a copy of your resignation letter with a note indicating its acceptance will help you. This mark can be made by the manager himself, his secretary, an employee of the HR department, etc. In this case, after 2 weeks from the date of submission of the application, you can stop working and request a payment and work book.

If they simply refuse to accept your application, or you submitted your application without leaving a copy with an acceptance mark, you can write a new resignation letter of your own free will, but this time send it by registered mail with notification addressed to your manager. In this case, your employer will not be able to claim that they did not see your application.

If even after this you are not fired, then feel free to go to court.

Sample entry in the work book when leaving at your own request.

As in other cases, upon dismissal of one’s own free will, a corresponding entry is made in the employee’s work book. In this case, various formulations of the reason for dismissal are possible, for example, “Dismissed at his own request” or “The employment contract was terminated at the initiative of the employee . In addition, it should be remembered that the dismissal record must be certified by the signature of the employer (or an employee of the HR department) and a seal.

Sample entries in the work book look like this:

Last working day upon voluntary dismissal

If the employment contract is terminated at the initiative of the employee, that is, upon dismissal of his own free will, the employee must notify the employer about this and notify him in writing no later than 14 days in advance (Article 80 of the Labor Code of the Russian Federation). This period begins to run the day after the employer receives the employee’s resignation letter.

For example, if an employee wrote a letter of resignation on May 3 and gave it to the employer on May 4, then the countdown of two weeks will begin on May 5, and May 18 will be considered the last working day.

Lawyers specializing in labor law recommend that in your resignation letter you do not use the wording “dismiss from…”, but write a specific date of dismissal.

In this case, the preposition “with” introduces ambiguity: the HR employee may not understand whether the date indicated by the employee is the last working day, or whether from this day he no longer plans to appear at work. To avoid confusion, it would be acceptable to write in the application, for example: “I ask you to dismiss me voluntarily on May 10,” which means that on May 10 the employee works his last day.

According to Art. 80 of the Labor Code of the Russian Federation, dismissal at one’s own request can be made before the expiration of a two-week period if:

an agreement has been reached between the employee and the employer on this issue - the last working day is determined by both parties to the employment contract;
the employee cannot continue to work (due to retirement, enrollment in an educational organization, etc.) - the employer is obliged to terminate the employment contract within the period specified by the employee;
in the event of an established violation by the employer of labor law norms or local regulations , dismissal is carried out on the day specified by the employee.