Dismissal on reduction of states in the day off. What should I do if the worker's layoff day falls on a weekend? Registration of dismissal of an employee on a day off

In case of reduction, the dismissal of an employee is carried out on a certain day, which is indicated in the order and notice. The date of dismissal during reduction, the day of dismissal - concepts may differ due to various nuances. The employer should take into account that the dismissal procedure is carried out according to certain plan, which complies with all the deadlines of the process.

Abbreviation and highlights

The reduction procedure begins from the moment a decision is made to liquidate, optimize or simply introduce a new staffing. The initial date for the reduction of workers must be set in the order.

Important! Employees must be notified a few months before the termination of the employment relationship. When reducing staff or headcount, the notice period is 2 months, that is, from the moment of notification to the actual dismissal, at least 2 months must pass. In case of liquidation or mass reduction, the period is extended to three months.

The date of reduction of the employee can be indicated in the order and the notice that is drawn up after it. From the moment of notification to the reduction, at least 2 months must also pass, that is, if a notification is received on the 10th, then after two months the employee can also be reduced and calculated on the 10th.

The type of abbreviation is standard:

a decision to lay off for a certain specified reason;
creation of a procedure plan taking into account all the rights of employees and available benefits;
a reduction order indicating the date of the proposed dismissal of the listed employees;
notification of employees in writing against signature;

working off in two or three months and reduction. The day of dismissal is considered the last working day.

It must be remembered that the established minimum periods between notification and dismissal of an employee must be met. If this is not done, then the court will have every reason to invalidate the procedure and reinstate the employee in his previous position.

Important! With any reduction option, an early termination of labor relations is possible. This will require the consent of all parties. With such a dismissal, in addition to compensation payments on reduction the employee receives additional compensation, which is calculated on the basis of the average daily wages and the number of unworked days before the date of dismissal by order.

It turns out that one date was written in the order, but the dismissal is made earlier and legally.

Dates

The date of dismissal during the reduction is prescribed in the order, which regulates the reduction process. The day of dismissal can also be written in the notice, but it can be omitted there, since after the notice there is a countdown of 2 months (3 months in case of liquidation).

Important! The actual day of dismissal is the date that is written in the labor. In special cases, the day of dismissal in the original order may differ from the actual dismissal.

There are several rules for dating the procedure that must be followed:

the order must have a reduction date not less than the established period, that is, two or three months;
at least two months must elapse from notification to reduction. More is possible;
the date of actual dismissal is entered in the labor work, and not the original date of the order;

upon liquidation, if all deadlines are met, the day of dismissal in the order is the end of the reduction. On this day, labor relations are terminated with all employees, including those with preferential categories;
if the notification is received by the employee later, then the period of mandatory work is extended by the corresponding number of days up to a full period of two months;
during vacation or sick leave, no reduction is made, therefore, dismissal is done on the first working day. In such a case, much more time may elapse after notification than the stipulated period of two months;
the day of reduction of the maternity leave with a reduction in staff or number is considered the first working day after going to work, or the child must be three years old if the woman is already working. This is due to the fact that such a category is considered preferential.

These rules are mandatory. If the reduction is dated incorrectly, the employer may be held liable.

Nuances and examples

In the standard version, the employee receives a notification with the prescribed reduction date, which is set by order. On the appointed day, if no other vacancies were offered, it is reduced. The date of dismissal is put down in the labor.

Important! The last working day on which the employee leaves is official, that is, he goes to the calculation of wages, as well as to the length of service. It turns out that the entry into the labor is placed on the last working day, which is considered the established deadline for reduction.

If the employee received the notification later, the employer will have to count two months from the moment the notification was signed. Example:

By order, the reduction date is September 3rd. The notification was sent to the employee by mail and did not arrive until July 10th. It turns out that the actual date of dismissal will be postponed to September 10th. Otherwise, the employer will be held liable, as the minimum notice period has been violated. The only legal option for reducing earlier is considered early termination with the payment of appropriate compensation.

Example #2:

At the time of the reduction prescribed in the order, the employee is on vacation or on sick leave. In this case, the employer must wait for the employee to workplace. For example, a sick leave is completed on the 10th, and the employee went to work on the 11th. The 11th is considered the first and last working day. This date is affixed to the labor. Also on this day, a full calculation should be made.

Important! Vacation can be of any type, including educational or maternity leave. An employee can go on vacation or sick leave even on the specified reduction date, since this day is still a working day.

If the day of dismissal falls on a weekend, then the date must still be recorded exactly as indicated in the order and corresponding to the deadlines. Payment can be made a day earlier.

The date of dismissal in case of reduction of any nature is prescribed in the order. The countdown of two or three months starts from the receipt of the notification by the employee. The day the employee is fired is considered a full-time working day, during which the employee can go on vacation or sick leave. After that, the reduction period will be shifted until the employee returns to work. The actual date of dismissal is written in the labor, that is, on which day the employee received all the documents and the calculation.

Situation: The company plans to dismiss an employee due to staff reduction. By mistake, the notice of dismissal, which he was given two months earlier, noted the date of dismissal, which falls on a day off. Tell me, is it possible to fire a person on a day off (what date should be indicated in the dismissal order) and what does it threaten?

Answer: It is undesirable to dismiss on a layoff on a day off, as this will lead to a violation of labor laws.

Let's analyze possible options action in the case described.

Having provided the employee with a notice of dismissal due to a reduction in staff, which indicates the exact date of dismissal, the corresponding order must be dated exactly on the date indicated in the document. Otherwise, the employee may apply to the court with a request to postpone the date of dismissal.

If the company issues an order on a weekend, then this fact in itself will not be a violation. After all, labor legislation does not contain requirements for the order to be issued on a working day. But this situation threatens other risks. So, according to Art. 47 of the Labor Code, the owner is obliged on the day of dismissal to issue to the subordinate a properly executed work book, finally pay him off and acquaint him with the order. If this is not done, the employee may apply to the court, which has the right to decide on:

Payment to the employee of average earnings for all time forced absenteeism with a delay in issuing a work book (part 4 of article 235 of the Labor Code);

Payment to the employee of average earnings for the entire time of the delay in the issuance of "settlement" on the day of direct settlement (part 1 of article 117 of the Labor Code).

The company can avoid the above by making a calculation and issuing a work book on the last working day before the day off, on which the date of dismissal will fall (on the date specified in the notice). This will make it possible to comply with both the date of dismissal, "announced" in the said notice, and fulfill the requirements of Art. 47 Labor Code. And although there is no liability for premature calculation and issuance of labor, the employer still risks. A dismissed worker may, for example, fall ill after issuing required documents, which means that de facto it will be impossible to release him until he is fully recovered (part 3 of article 40 of the Labor Code). As a result, you will have to make changes to the labor and pay extra.

Let's consider another way out of this situation - to issue an order on the first working day after the day off indicated in the notice of dismissal, and on the same day to fulfill the requirements of Art. 47 Labor Code. This will also help to avoid violations, but has other unpleasant consequences. In particular, a person dismissed “belatedly” can apply to the court with a request to move the date of dismissal, citing the fact that he considered the decision to dismiss canceled, and therefore stopped looking for a job.

It turns out that by indicating in the notice the date of dismissal, which falls on a weekend, the company finds itself in a rather delicate situation. An acceptable way out of it is to issue an order on a day off, and issue a work and calculation on a working day before the weekend. We also note: if the employee agrees, then on the same day the order itself can be issued. After all, the fact that failure to comply with the two-month notice period by agreement of the parties is not a violation, the Ministry of Labor said in a letter dated 05/25/10 No. 107/06/186-10. However, such consent must be confirmed by a written statement from the employee.

The employee has the right to cancel labor contract with your employer, having warned him about this no later than 2 weeks in advance (Article 80 of the Labor Code of the Russian Federation). That is, an employee can write a statement at any time, but after that the employer will have the right to demand a 2-week work from him. Or maybe not demand - it's his right.

In this case, the specified period begins on the next day after receiving the application from the employee. And theoretically the last day of these two weeks can fall on a day off. But is it possible to get fired on a day off?

Is it possible to fire an employee on a day off

In accordance with the Labor Code of the Russian Federation, the day of termination of the employment contract is the last day of the employee’s work, except for cases when the employee did not actually work, but he retained his place of work / position (Article 84.1 of the Labor Code of the Russian Federation). Therefore, in the general case, if the expiration date of the working period - the expected day of dismissal - falls on a day off, then the employee must be dismissed on the next working day following him (Article 14 of the Labor Code of the Russian Federation).

Similarly, if the day of dismissal falls on a holiday (non-working), then the employee must also be fired on the next working day, pay him off and give him a work book.

Dismissal on the day of application

In certain cases, the employer is obliged to terminate the employment contract with the employee within the period specified in the application. This applies to employees who are no longer able to continue their labor activity for objective reasons:

employees enrolled in educational institutions;
retired workers, etc. (Article 80 of the Labor Code of the Russian Federation).

You can't install any work on them. Therefore, the only thing you need to follow is that the date of dismissal in the employee's statement falls on a business day.

Dismissal on a day off at the expiration of the contract

If you have entered into a fixed-term employment contract with an employee, then the last day of his term may also fall on a day off. It is safer in such a situation to formalize the dismissal of an employee in accordance with the general approach - on the next next business day (

If the day of dismissal falls on a holiday, what to do in a similar situation? Let's turn to Art. 14 Labor Code of the Russian Federation, which is about defining deadlines in a workflow. According to it, if the date of departure of the employee falls on a weekend or holiday, the day of termination of the contract should be considered the next working day.

For example, if an employee works five days a week, and the day of leaving the organization falls on Saturday or Sunday, the calculation and issuance of the work book are transferred to the next business day, that is, Monday.

Is it possible to fire an employee on a day off

Whether the dismissal is issued on a holiday or on a working day, in any case, the employer is obliged to ensure the timely completion of all the necessary procedures for this. Otherwise, the employee may go to court. Arbitrage practice shows that decisions are more often made in favor of the dismissed citizens.

If the employee has a day off (the administration is working)

In this section, we will tell you whether it is possible to dismiss an employee on a day off if a person works in a shift schedule. The term for termination of the contract may fall on a day that is non-working for the worker. How to act as an employer?

He needs to invite the dismissed person on his day of rest to the personnel department for documents.

If a dismissal is issued on the employee's rest day, the date of the order corresponds to the current one. We enter the actual date of dismissal in the work book. The employee will receive the payment on the day of termination of the employment contract.

It may happen that on his legal day of rest, coinciding with the day of dismissal, the resigning did not appear. In this case, the administration must:

send by mail to the dismissed registered letter with notification of the need to come for personnel documents or agree to send them by mail;
issue a settlement to the dismissed person no later than the next day after receiving the corresponding request from him.

If the administration has a day off (the employee works the last day)

With a shift work schedule for an employee, the day of his departure from the organization may fall on Saturday or Sunday, which may be non-working for the HR and accounting department.

In this case, according to Art. 84.1 of the Labor Code of the Russian Federation, the worker should be given a calculation and a work book on the date indicated in the letter of resignation. And the employer does not have the right to postpone the execution of these procedures for the next day.

Therefore, the employer will have to involve an accountant and personnel worker to work on the weekend. For going out on a day of rest, they are entitled to wages in double size or the right to an additional day of rest (see letter of Rostrud dated 06/18/2012 No. 863-6-1).

If both the employee and the administration have a day off

But it may happen that both the employee himself and the administration of the enterprise have a day of rest on the date the employee is dismissed. What to do?

In this case, we act according to Art. 14 Labor Code of the Russian Federation, which states that the date of termination of the contract should be considered the working day following the weekend. On the last working day, we issue the employee with a calculation and labor, in which we indicate the actual date of termination of the contract.

When to order and by what date

The order can be issued on any day after the date of filing the application for dismissal, but no later than the last working day of the employee who is leaving. When issuing a work book, an employee should be familiarized with the contents of the order under his signature.

Employer's responsibility

As the saying goes Art. 236 of the Labor Code of the Russian Federation, the head of the company bears liability for the delay in the payment of wages and other payments that are due to the employee.

If the head of the company violates the established deadline for issuing the calculation upon termination of the employment contract, he will have to pay it together with monetary compensation. Its amount shall not be less than 1/300 of the current refinancing rate of the Central Bank of the Russian Federation from amounts not paid on time for each day of delay, starting from the next day after the due date of payment, including the day of actual settlement.

If an employee leaves on a certain date that falls on a day off, a logical question arises - is it possible to carry out a dismissal on a day off. Let's take a look at what the law says about this. When analyzing this situation, it should be noted that a specific employee may have days off, or days off at the enterprise (if a five-day or six-day work week is established), as well as holidays and non-working days established by law.

What to do if the date of dismissal falls on a weekend

In a situation where an employee leaves of his own free will, and the working period ends, falling on the employee's day off, his dismissal should be carried out on the day before.

Although Article 14 of the Labor Code establishes that terms falling on a weekend or non-working day end on the day following the day off. That is, the first working day, after the day off. But it is not always legal and justified to dismiss an employee a few days later than the date indicated by him in the application. In this particular case, an employee may already go to work in another place from Monday if he is employed in another company.

Why is it important to fire the day before the day off. The fact is that the day on which the employee quits is considered his last working day. Thus, he must complete it completely. Sometimes employers change the dates of dismissal. In the order, they indicate the date of dismissal, which is according to the law, but in fact the day following the day off is put on the labor day.

Or, on the contrary, all calculations are made with the employee on the eve of the day of dismissal, and the order and all papers are drawn up on a day off. Whether this is legal, neither the labor authority nor the court explains. Apparently, in the event of the dismissal of an employee on own will, no between the parties to the dispute. And, accordingly, the case does not reach the court.

Also, in some cases, dismissal on a day off is possible when it occurs by agreement between the employee and the enterprise. Or, in the case of the end of the employment contract on a date that falls on a day off. In any case, the concept of a day off should be considered, and as a general day off at the enterprise. Then simply, there will be no one to carry out the dismissal procedure, because everyone is on the weekend. Or, consider a day off for a particular employee.

If the day of dismissal is a day off

Considering the provisions of Article 84.1 of the Code, an employee should be dismissed in all cases on his last working day. This implies that even if an employee has shift work work, and the day of his dismissal fell on his day off, dismissing an employee is his last working day. This is partly due to the fact that the same Labor Code establishes that on the last day of work, the employee must receive a full calculation at the enterprise, a work book, the dismissal order must be signed in the “familiarized” column.

But here is the situation: the day of dismissal falls on a day off, and the employee is on sick leave. How to proceed? Based on the provisions of the current legislation, an employee has the right to write a letter of resignation while on sick leave. Or on vacation. At the same time, he can send an application by mail, without being personally at the enterprise. In accordance with the norms of labor legislation, the period of the so-called two-week work begins on the day when the employer received a written application from the employee. The calculation of the two-week period begins the next day. Accordingly, if an employee submitted an application on Friday, then theoretically, the countdown day of the two-week period should begin on Saturday.

But, in practice, the dismissal order is issued on the same date as indicated in the employee's statement. It is forbidden to delay the dismissal of an employee, and keep his work book. In fact, it turns out the following: an employee who is on sick leave worked for two weeks, laid down upon dismissal, without leaving the sick leave. The employer issues an order on the same day when the dismissal should occur. In fact, the employee did not go to the enterprise for documents, because he is on treatment. After that, you need to send a copy of the dismissal order to the employee, and a notice of the need to appear for a work book.

Thus, if the day of dismissal falls on a day off, settlements with the employee should be made the day before. In case of liquidation of the enterprise, or reduction, the day of dismissal is considered the last actual working day of the employee, before the day off. The same rule applies to dismissal on holidays or non-working days established by the Government. By agreement of the parties, the employment contract can be terminated at any time. Thus, the parties must, at their own discretion, set the day of dismissal, taking into account working days and weekends.