If you take a vacation followed by dismissal. Unused vacation. Is the employer obligated to provide it? Related documents

Every employee is entitled to annual leave. It occurs after six months of continuous work with one employer. As a rule, an employee exercises this right after having worked at the enterprise for 11 months. Then he can go on vacation for all 28 calendar days.

The right to leave can be exercised by an employee both during work and upon dismissal. This is stated in Art. 127 of the Labor Code of the Russian Federation. This article says that an employee who leaves the job can use any of two options:

• receive monetary compensation for unused vacation days;
• take an unused vacation before dismissal.

Most often, the employee asks for compensation, but some first take their leave, and only then quit. This raises a lot of questions from personnel officers. What is the correct way to arrange the main vacation, if then the employee is going to quit?

How to properly arrange a vacation followed by dismissal

It is important to correctly draw up documents for such a dismissal. Otherwise, the employer cannot avoid problems with the labor inspection.

In Art. 127 of the Labor Code of the Russian Federation states that only those employees who quit on their own initiative can take unused leave. If the dismissal is initiated by the employer, and is the result of the employee's culpable actions, the right to leave is lost.

The employer is not obliged to release the employee before dismissal on unused leave. This is his right, but not his duty. Therefore, if an employee plans to first take a break and then quit, he must obtain the consent of his employer.
Leave can be granted to an employee if he leaves of his own accord (clause 3 of part 1 of article 71 of the Labor Code of the Russian Federation), by agreement of the parties (clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation) or on other grounds that are presented in Labor Code of the Russian Federation and are not associated with the culpable actions of the employee.

As stated in Art. 80 of the Labor Code of the Russian Federation, the employee is obliged to notify the employer 2 weeks in advance that he wants to quit a certain date. In Art. 78 of the Labor Code of the Russian Federation says that when an employee is dismissed by agreement of the parties, the period for notifying the employer is stipulated in the agreement itself. At the same time, he has the right to express his desire to use the vacation that he has.

The employer is notified in the form of a written statement from the employee. Likewise, he notifies the employer of his desire to use the vacation days. This is stated in Part 2 of Art. 127 of the Labor Code of the Russian Federation.
Upon dismissal of his own free will, the employee writes 2 applications - one for dismissal, the other for vacation.

How to write a statement

There is no unified form of application for dismissal and vacation. It is drawn up in writing in the name of the employer. If a company has developed a special application form, then it is written on it.
If there is no form, then the letter of resignation must contain the following information:

• in the upper right corner, the position and full name of the head of the enterprise, as well as the name of the enterprise itself, indicating the organizational - legal form;
• then the full name and position and the applicant are indicated. You can also indicate the structural unit where he works;
• then the word "Statement" is written;
• in the informative part of the application, you must state your desire to quit. Be sure to indicate the date of dismissal without the preposition "from". This confuses the personnel officer. Better to write, for example, November 17th. This suggests that the last working day will be November 16;
• date, applicant's signature and transcript.

The application for the use of the remaining leave is also made in writing. It is drawn up in the same way as a letter of resignation. Only the informative part should contain the following information:

• a request to use vacation days that were not taken off before the date of dismissal;
• you need to indicate the date from which the employee plans to go on vacation;
• it is also necessary to indicate the duration of the unused vacation. If an employee does not know exactly how many days from vacation he has, he can contact the HR department. The HR inspector will calculate the exact number of days of unused vacation;
• you also need to state the desire to quit after the vacation;
• date of writing the application, signature of the applicant and its transcript.

It is better to write the application in duplicate. One copy remains with the employer, and the other with the employee. On the employee's copy, you need to put the number of the incoming document and the date of acceptance of the application for personnel records.

Based on the statements, the personnel officer issues 2 orders:

• on the granting of leave in the form of T-6 or T-6a;
• about dismissal - in the form of T-8 or T-8a.

The employer does not have the right to issue a single order of dismissal and leave. This will be a violation of labor law and office work.

Based on the order, the personnel officer fills out the first page of the T-61 form, and transfers it to the accounting department for calculating vacation pay. In addition, the employee has the right to take only part of the vacation before dismissal, and receive monetary compensation for the rest of the days. The employer can meet the employee halfway, as this does not worsen legal status this employee.

The employee must know that he is entitled to leave after six months of work. He must receive full leave, that is, 28 calendar days, and not in proportion to the hours worked. He receives leave in full, and only those days that he "worked" will be paid.

Date of dismissal (on leave with subsequent dismissal) When using non-part-time leave with subsequent dismissal, the question arises which day is considered the last. The date of issue of the order and other subtleties depend on this.
Part 3 of Art. 127 of the Labor Code of the Russian Federation says that upon dismissal from unused vacation, the last working day will be the last day of the vacation.

Labor law prohibits an employer from issuing an employee dismissal order in advance. For example, the statement indicates the date of dismissal on August 27, and the order was issued on July 25. The dismissal order is also due on August 27. In addition, the employee must put his signature on the order of dismissal.

With the beginning of the vacation, the employee cannot withdraw his application for dismissal. It is also impossible to issue an order in advance, but it is also impossible to indicate the date of dismissal - then the end-to-end numbering of orders will fail, and workers of the labor inspection will certainly pay attention to this.

It is necessary to make a full payment with the employee and issue him a work book. This must be done on the last working day. The last working day is the day before the employee's vacation. Since the employee will no longer withdraw the application, on the same day he is paid a full payment for all actually worked days from the last date of payment of wages. If the collective agreement provides severance pay, then it is also paid on the last working day of the employee.

The work book is issued on the day of dismissal, that is, on the last day of vacation. In it, you need to make a note of the dismissal, indicating the number of the order and the date of its publication. And the order can be issued only on the day of dismissal.
If an employee gets sick during vacation with subsequent dismissal, then the date of dismissal is not postponed, but sick leave is paid in accordance with the length of service this employee.

The provisions of the regulatory enactments establish the possibility for an employee to be formalized by the company's administration before terminating an employment contract with him for a vacation period, if he has previously unused days. The employee can use this time in whole or in part. Therefore, the management of the enterprise must know how to properly arrange a vacation with subsequent dismissal.

The right to leave is established by government agencies with the help of regulatory enactments. If an employee is employed under an employment agreement in a company, then a certain number of vacation days is entitled to a certain number of vacation days for the period worked.

At the same time, for the first time, an employee gets the opportunity to go on annual paid leave according to the law after six months of work.

In the future, the employee receives the right to use his days of rest only in accordance with the approved at the enterprise. This plan must be followed by both the employee and the administration of the company.

If the employee decides to terminate labor contract, then he will be able to get a vacation followed by dismissal of his own free will only with two factors:

• If this is according to the management of the company.
• If, at the time of dismissal, the employee did not take a vacation due to him. This is determined by a specialist in the personnel department according to the rule: for each month of work, an employee is entitled to 2.33 days of vacation. You also need to take into account the previously provided rest periods.

If the administration refuses to grant leave, the quitting employee is entitled only to receive monetary compensation. That is, an employee can submit documents in order to receive an annual paid leave when leaving, but this management has the right to disagree.

Attention! Therefore, the provision of rest with further dismissal can be carried out only when it occurs, in agreement with the employer, or on the basis of an agreement concluded between the parties.

In the first case, it is recommended to make a written agreement between the employee and the management to avoid problems in the future. If the initiative for termination comes from management, such a period cannot be granted.

By regulations labor law or due to the concluded labor contract, the employee may be granted additional leave. It is subject to the current regulations for the main period.

The employee will be able to use the vacation with the consent of the management even in the event of expiration, when its use for the period will go beyond the term of the contract.

Features of vacation with subsequent dismissal in 2019

Do I need to work out 2 weeks in this case? No. With the consent of the administration, the employee can leave earlier, registering all this time as a vacation. Moreover, during this entire period he will be on the staff of the enterprise, and the time will be included in the length of service.

An employee can submit one general vacation application with subsequent dismissal, or two documents for each case. Therefore, it is necessary to draw up two orders according to unified forms, or, if it is drawn up in a free form, one on a letterhead. This leave will allow the resigning person to search for new job, and the company will take on a new employee in his place.

Another feature of such a dismissal is that the employee loses the right to cancel the application during the vacation. This is due to the fact that all documents for termination of employment are drawn up before the beginning of the rest period itself, the final date has been determined and it cannot be changed. This employee can only be registered if he re-writes an application for an appointment.

Attention! On vacation followed by dismissal, an order to terminate labor relations drawn up in advance, before the onset of a period of time, and the final day of rest is considered the date of dismissal. In this regard, all payments to the resigning person must be made before the onset of vacation.

What if an employee gets sick on vacation

An employee of the enterprise, who has a rest period with further dismissal, during this period may come a time of incapacity for work.

Legislation under normal conditions determines that sick leave days must not only be paid, but also extend the period of rest provided. However, different rules apply when vacationing with further termination of the contract.

The sick leave provided by the quitting employee is also fully paid. But time off work does not increase the number of vacation days.

Because at the disposal of the administration for dismissal, the deadline for the contract is determined, the necessary forms have been drawn up, and the money has been paid. That is, the entire termination procedure has been completed and cannot be canceled.

Can I withdraw my letter of resignation?

The reason for the employee to first be issued a vacation, and then to be dismissed, is the statement he has drawn up. In practice, an employee is sometimes asked to write two separate statements - one for vacation, the other for dismissal. But it is also allowed to combine both requests into one form.

Since the employee draws up a letter of resignation at his will, the law allows for the possibility of its withdrawal. However, if leave is requested with dismissal, there is one nuance associated with the recall.

The actual date of the end of the relationship between the company and the employee with such a dismissal will be the final day of the vacation, and the last day at work will be the day before the vacation is granted.

If an employee has requested leave with further dismissal, then he can change his mind to terminate the contract only until the moment of retirement. This is due to the fact that on his final day of work, the employee receives both the estimated money and all the required documents.

Attention! It is also more convenient to write two applications at once if the director refuses to provide leave and decides to simply fire the employee. In the case of a single document, it will need to be rewritten, leaving only a request for dismissal.

Step 2. Drawing up an order for dismissal

For this type of order, you can apply the standard T-8 form, or place an order on letterhead.

In the column intended to reflect information about the reason for the dismissal, it is necessary to enter the following: “On the initiative of the employee, paragraph 3 of part 1 of article 77 of the Labor Code Russian Federation”. In the line of the basis for drawing up the order, you must indicate the details of the application issued by the employee.

Important! The main feature of granting leave with further dismissal is the difference between the date of drawing up the order and the date of termination of the contract. In this situation, the date of drawing up the order will be the final day at work before vacation, but the date of dismissal will need to indicate the last day of being on vacation.

Step 3. Drawing up an order for granting leave

For a vacation order, you can use a standard form in the T-6 form, or draw up this order on a letterhead.

Filling out an order does not differ from the standard case of issuing a vacation. The form will need to indicate the period and duration of the rest, the start and end date. If in the form of a vacation, the main and additional vacation are provided at once, then information about them is reflected immediately in one document in sections A and B.

Important! The organization has the right to create its own order form, which will combine vacation orders with further dismissal.

Step 4. Conducting familiarization with orders

Both orders must be signed by the head, after which they are handed over to the employee for review. If you need to read the content of the documents and in each, in a specially designated column, put the date and signature.

If an employee, for any reason, refuses to sign on one or all of the documents, it is necessary to assemble an independent commission, which will create an act on this.

Step 5. Orders are registered in the ledger

The organization should keep a journal in which the responsible employee records each issued order.

When registering, you need to indicate the number and date of registration of the order, you must also indicate summary orders and persons responsible for its execution.

Step 6. Specifying information in a personal card

A personal card in the T-2 form is created for each employee when he enters the company for work, and is maintained for the entire period until the moment of dismissal. If the employee is given a rest period with further dismissal, that two entries will have to be made in the personal card at once.

V section VIII "Vacation" you need to record the data on the granting of the rest period. Here you need to indicate the name of the rest time, its duration, the number of days on rest.

Next, you need to enter the information in section "Grounds for termination of an employment contract"... Here you need to write down the reason for the dismissal, the date, information about the issued order. All information entered in the card is checked by the personnel officer for errors, after which it is signed.

Attention! It is necessary to familiarize the employee with the information about the dismissal, who must sign as evidence of this. It is not necessary to familiarize yourself with the information on granting leave.

Step 7. Entering vacation data into your personal account

A personal account is a special form that must be opened for each employee annually at the beginning of the new year. It is not mandatory for everyone, and therefore small firms usually do not use it, but use such a form for a company with a significant number of employees. Small firms prefer to use a personal T-2 card instead of this form, and additionally the T-49 and T-51 statements.

A personal account has two forms:

• Form T-54 - intended for handwriting. In it you need to enter information about what amounts were charged and withheld in each month. This is done on the basis of data from other primary documents.
• Form T-54a - it is used when processing data using a computer.

Step 8. Entering information in the timesheet

In order to record the presence or absence of an employee at workplace, tables of accounting in forms T-12 and T-13 are applied.

It should be remembered that until the day of dismissal, which is the final day on vacation, the employee is still considered to be on the company.

The rest period is celebrated as just a vacation:

• If the days of the main vacation are provided, the codes "OT" or 09 are put down;
• If days of additional vacation are provided, the codes "OD" or 10 are indicated.

Attention! The marking of vacation days is carried out in accordance with all the rules - if a holiday falls on the holiday period, then it is not included in the definition of vacation days, and the code "B" or 26 is put on these days.

Step 9. Making an entry in the work book

The introduction of any record in the labor force is determined by the decree of the Ministry of Labor.

Upon dismissal of an employee, the law provides for a two-week period for filing an application. Execution job responsibilities during this period is reduced to a formal transfer of affairs.

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At the same time, this situation hinders the search for a new job, the preparation of documents in a new place, leads to an unhealthy psychological climate in the team: idle curiosity, ambiguous hints, negative assessments. To avoid this, upon dismissal, you can use the employee's right to paid leave.

Relax before leaving

Vacation followed by dismissal is possible if the employee terminates the employment relationship under own initiative or by agreement with the employer. If the dismissal of the employee occurred on the grounds caused by his guilty actions provided for by law, it is not allowed to take a vacation.

It should be remembered that the legislation leaves it at the discretion of the employer to satisfy the employee's right to leave upon dismissal.

The employee must formalize his desire for vacation in writing. Upon written application, he can be granted both an extraordinary vacation and all previously unused vacation. The basis for dismissal may be the employee's own initiative, transfer to another employer, mutual consent of the parties.

If the dismissal of an employee takes place by mutual agreement, then the whole procedure is governed by the agreement. In this case, the vacation application is written separately. In all other cases, the granting of leave can be combined with the dismissal procedure.

Vacation registration with subsequent dismissal

The employee submits two applications: for dismissal with an indication of the date and reason for the termination of labor relations and for the provision of extraordinary leave with an indication of the date, terms in calendar days. This vacation will be a vacation followed by dismissal.

Moreover, the employee in this case is not obliged to adhere to the vacation schedule, and the number of vacation days may not correspond to the next annual vacation.

In this case, the amount of leave may be equal to all previously unused vacations.

In the case of an application for termination of employment, an agreement is drawn up on such termination and only after that the employee applies for a vacation. If the dismissal of an employee is carried out for other reasons, then instead of an agreement, the employee is provided with a notification (for example, change of ownership, reduction). After the employee agrees to his dismissal by signing the notice, he draws up a vacation application.

As for the further stages of the procedure, they are absolutely identical, regardless of the basis on which the employee is dismissed.

Stages of the procedure for dismissing an employee with subsequent vacation:

1. Receipt of a corresponding statement from the employee.
2. After the application is signed, the employee is notified in writing against signature of the start time of the vacation.
3. A corresponding order is issued.
4. The document is registered in the journal.
5. The employee is introduced to the document against signature.
6. A settlement note is drawn up.
7. The employer signs the order to dismiss the employee.
8. The order is registered in the register of documents.
9. The employee gets acquainted with the dismissal document against signature.
10. A settlement note is drawn up, on the basis of which the settlement with the employee is carried out.
11. Payments to the employee.
12. A corresponding entry is made in the work book and at the same time in the account card.
13. Issuance of a work book to a dismissed employee.
14. Issuance of income certificates.

Statements

The vacation application is submitted simultaneously with the dismissal application and is drawn up in any form. In the vacation application, you must specify the dates and dates, as well as the number of calendar days.

But it is best to submit one application of this pattern:

The application must include the grounds for termination of the employment relationship, as well as the date of dismissal. The document is signed by the employee with his own hand, and it must be dated. After that, it is transferred to the employee of the personnel department.

Make sure they are registered in the incoming log with the date stamped.

This may be necessary if the decision to meet the employee's requirements will take a long time.

If a two-week period has passed since the registration of the applications, then the employee's requirements must be satisfied automatically. Provided that the dismissal procedure has not already been launched in relation to this employee due to circumstances related to theft, negligence of the owner's property or other culpable grounds.

The statement is superimposed on the resolution of the immediate supervisor structural unit employee and head of the organization. As a rule, the resolution of the head of the department is affixed before the registration of applications, after which they are submitted to the head. If the resolution is positive, the execution of orders begins. If the resolution is negative, the employee reserves the right to receive compensation for previously unused vacations.

How to determine the dates correctly?

It is generally accepted and enshrined in law that the date of dismissal of an employee falls on the last day of vacation, and the date of actual termination of the employee's duties is the day before the first day of vacation.

When calculating vacation dates, it is important to pay attention not only to the time, dates and dates, directly regulated by law, but also on the date of preparation of documents, their acceptance and registration in the relevant registration logs, and also take into account the deadlines falling on holidays and weekends.

All this can help both in the pre-trial settlement of disputes and during the trial. Such cases very often occur when the parties disagree on the amount and terms of payment.

Keep a record of the timeline for accepting your applications and the date on which the corresponding entries are made in the journal. If a decision on the employee's application has not been made for a long time, then after the expiration of a two-week period, all the requirements set forth in it are considered subject to satisfaction. This situation usually develops when the application is submitted on long holidays ( New Year May holidays), and the manager takes an early pre-holiday leave. In this case, the employer refers to the date the application was made in the register.

The dates of the documents on the basis of which the employment relationship is terminated are of great importance. In the event that the dismissal of an employee is carried out on the basis of a notice, the date of the notice must be earlier than the date of the application for dismissal. Otherwise, the employee is considered to be on vacation and is not subject to dismissal, since the deadlines provided for by law cannot be met. The situation is similar in the case of an agreement on termination of employment.

Thus, when dismissing, you must pay attention to the following dates:

• acceptance of applications for leave and dismissal of a personnel worker;
• registration of applications for leave and dismissal in the register;
• an employee's vacation order;
• an order to dismiss an employee;
• date of receipt of vacation pay;
• the date of final settlement upon dismissal;
• the date of termination of the employment relationship entered in the employee's work book.

At the same time, the date of registration of orders does not play a big role, since it refers to the internal documents of the enterprise and is necessary only for the accounting system and document management. But the very fact of registration of these documents is very important.

When the relationship is terminated on the employee's own initiative, the vacation order is issued simultaneously with the dismissal order. The date must be earlier than the deadline for paying vacation pay, since it is the basis for such payments. That is, the order must be issued no later than three working days before the vacation. The dismissal order may be issued later than this period, but the employee must be familiarized with its text against signature. That is, before you actually go on vacation.

The timing of the payment of vacation pay and the final settlement with the employee is regulated by law. Vacation pay is due no later than three working days before the start of the vacation. Final settlement is made on the last actual business day.

Orders

If the employee's right to leave with subsequent dismissal is satisfied, at the request of the legislation, two documents are issued: an order for an employee's leave and an order for dismissal. It will not be possible to combine them due to the developed standard forms and samples. However, the legislation does not prohibit the execution of these documents with the same date.

The date of registration of these two documents must not be later than the start date of the employee's leave to be dismissed.

An order for granting an employee a vacation must comply with the T-6 or T-6a form. It indicates the type of vacation (regular, annual without maintenance) terms, date, number in calendar days, since the employee can receive compensation for part of the vacation

The dismissal order must be executed in the form of T-8 and T-8a. The document must correctly indicate the basis for dismissal - at the initiative of the employee, since the law stipulates that the dismissed employee can terminate the contract before the expiration of the dismissal period. The date must be indicated and a note is made about the dates of such a date.

The orders must reflect all the details of the documents: number, date, the signature of the head. All orders must be registered in the document journal.

But it will not be a violation to issue one order, which reflects both procedures. An example of such an order:

Filling out the work book

Upon dismissal of an employee, all records made in it are certified by the signature of a representative of the organization, as a rule, this personnel worker, certified by the seal of the organization and signed by the dismissed employee. The last entry on the termination of labor relations is entered, indicating the grounds, the date is put down - the last day of the vacation, the signature of the authorized person, the seal of the organization, as well as the signature of the employee himself are put.

At the same time, the corresponding entry is entered into the employee's record card.

When to give the work book? You can issue a work book on the last day of vacation or before vacation. In this case, if the employee picks up the application for dismissal within two weeks of the subsequent vacation, the employee's dismissal entry entered in the work book is considered invalid. The corresponding mark is entered in the work book

Money question

When issuing a vacation for an employee with subsequent dismissal, the following material issues are subject to settlement:

• the procedure for calculating vacation pay;
• calculation of the number of vacation days;
• the amount of compensation for all previously unused days;
• wage arrears for all expired periods of the employee's work at this enterprise;
• source of payment to the employee of settlement, vacation and compensation payments;
• taxation of the employee's salary for the last billing period;
• the amount and procedure for deductions from wages, if any;
• the amount of sick leave payment in the event that during the vacation period the employee has issued a sick leave.

The legislation does not contain references on the amount of such leave and the procedure for calculating vacation pay. An employee who has not worked in the organization for a year is entitled to leave in full - 28 days... Such a right arises for an employee during continuous work in the organization after 6 months.

If leave upon dismissal is provided in full, then not in all cases it will be possible to withhold funds for unworked vacation days in the final settlement.

In this case, the employer tries to provide leave for the employee actually worked in the organization of time. Based on this, the employee is entitled to 2.33 calendar days of vacation for each actually worked month. At the same time, surpluses in the amount of less than a month are rounded down, and periods of more than half a month are rounded up to the full value.

Payments and compensation

In case of vacation with subsequent dismissal, the employee is subject to the amount of accrued vacation pay, wages for the last working month, wage arrears for previous periods, and monetary compensation for previously unused vacation days.

The calculation is carried out on the basis of the continuous actual hours worked.

The relevant data is indicated in the payment card, which is filled out by an employee or employee of the personnel department and submitted to the accounting department.

Payments are made based on the employee's average monthly income accrued over the past three months.

Taxation

When an employee is dismissed for calculating personal income tax, the date of actual receipt of income by the employee is the last day when income was accrued to the taxpayer. This must be taken into account if the settlement with the employee was made from funds in the cash desk of the organization.

In this case, the law retains the obligation for the employer to transfer personal income tax, accrued and deducted from the estimated amount of the dismissed employee, no later than the next day.

In case of leave upon dismissal, the employer must transfer the amount of personal income tax to the budget no later than the first day of leave of the dismissed employee.

When to calculate?

When an employee is granted leave with subsequent dismissal, vacation pay, compensation for previously unused days, if the employee did not take all leave, calculated for the last working month, as well as other payments provided for by law, are subject to payment. In the event that the employee is in, the days on sick leave are not counted, but the employee receives a refund on the sick leave.

Vacation funds are payable three calendar days prior to the onset of the vacation. This is the deadline.

The final calculations are made on the last day of the actual performance by the employee of his job duties, that is, on the day preceding the day of the start of the vacation.

Terms of settlement with an employee:

• payment of vacation pay - no later than 3 days before the start date of the vacation;
• payment according to the payroll - no later than the last day actually worked by the employee;
• other payments and compensations, including those related to wage arrears - until the day of dismissal, that is, until the end of the vacation;
• tax deductions (personal income tax) - in the case of an employee calculating from the organization's cash funds no later than the next day after the settlement day.

What are the advantages and disadvantages of the situation?

Vacation followed by dismissal provides an undoubted advantage to the employee.

Employee benefits

• For the period of vacation, despite the dismissal, the employee retains all the rights of an employee of the organization.
• The vacation period is included in the work experience.
• The employee retains the right to paid sick leave during the vacation period.
• The employer must close all wage arrears for the entire period of employment.
• During the vacation, the employee is free to devote himself to finding a new job.
• The employee retains the right to withdraw the application for dismissal.
• An employee can calmly rest instead of feeling discomfort from the idle curiosity of colleagues, gossip, and negative assessments.

At the same time, the granting of leave with the subsequent dismissal for the employer is fraught with serious problems: the need to find a new employee, recalculation of the funds paid and the inability to return the amounts of personal income tax transferred to the personal income tax in the event of an employee's refusal to dismiss, as well as the timing of calculating and transferring taxes to the budget. Therefore, the employee does not always succeed in exercising his right.

When terminating a relationship with an employee, there are some nuances that need to be known and taken into account in order to avoid conflict situations, including by the Labor Inspectorate. In this procedure, special attention should be paid to such an issue as the remaining days of paid rest and the employee's ability to realize them before leaving.

Vacation followed by dismissal, article 127 of the Labor Code of the Russian Federation

In accordance with the amendments that entered into force in 2018, Article 127 of the Labor Code establishes the possibility of a worker to exercise his right to paid rest before leaving office.

There are two possible options to do this:

• with the help of financial compensation for days off;
• through the registration of leave with subsequent care.

It is important to remember that such rights are granted only to those employees who leave of their own free will, and not for violation legal regulations... This is a critical condition, which is described in the provisions of the current Labor Code.

Vacation followed by dismissal of your own free will

The procedure for obtaining a vacation before an employee leaves includes several stages:

• submission of a written application by the worker;
• drawing up a dismissal order;
• making settlements with the employee.

Basically, this process is straightforward. The exceptions are those cases when the due days were taken off in advance. Then, from the final calculation, the employer deducts an amount equal to compensation for extra days of rest.

For the rest, leave with the subsequent departure from work takes place, regardless of the form of labor organization ( remote work, with a flexible or shift schedule, part-time, etc.) and the legal form of the enterprise.

The number of calendar days of rest before leaving the post corresponds to what the employee would have if he was not going to quit. It is also important to remember that the application itself, with a request to dismiss the worker of his own free will, can be withdrawn by him before the first day of rest. If this did not happen, then the last calendar day of rest is recognized as the date of dismissal.

These are the basic regulations for registration days like this rest in accordance with the Labor Code.

Calculation of compensation for vacation with subsequent dismissal

If the employee chose to compensate for unused rest days in cash or it became the initiative of the employer, then it is necessary to correctly draw up the calculation of the amount due.

To do this, you need, first of all, to calculate the average earnings of the worker per day (for the accounting period, Last year). The calculation does not include compensation paid due to administrative time off, sickness or statutory holidays. Also, the number of days when the worker was absent from work is not taken into account. All paid wages, bonuses and other variable remuneration divided by the number of days actually worked.

This is followed by the resulting value of the average daily earnings, multiplied by the number of non-holiday days. Thus, the final amount of monetary compensation for vacation with the subsequent termination of employment is obtained.

Is it possible to go on vacation followed by dismissal without work?

Quite often the question arises, what to do with working off if you take a vacation before leaving?

In the current labor law there is no such thing as “labor”. Labor Code RF does not provide for such a need. The employee must notify the employer of his intention to leave within two weeks before. To do this, you will need to write an appropriate application.

After the information is brought to the head of the enterprise, the worker can take leave with the subsequent termination of labor relations and no additional work is required here.

Sick leave during vacation followed by dismissal

The situation has its own specifics when, during the rest before dismissal, an employee was forced to open a sick leave.

Since the sick leave is issued before the termination of the relationship, then it is subject to compensation in accordance with the current regulations in this area.

The allowance is paid based on the total length of service at the current enterprise, the average daily earnings and the number of calendar days of illness. In this case, the paid vacation can be extended by an appropriate amount of time. This means that the date of leaving the post can be postponed.

Vacation followed by dismissal by agreement of the parties

All of the above provisions for the correct registration of leave, before the termination of employment, are also valid for those cases when labor activity carried out by agreement of the parties. An exception is a civil contract.

In this case, any of the parties can initiate the termination of the relationship. At the same time, the employer may well provide rest to the quitting employee, even if he has not worked a full year at this enterprise. As for the monetary compensation, it is paid in strict accordance with the number of days not spent.

Leave followed by dismissal due to retirement

Before deservedly leaving work, due to the onset of retirement age, a worker on the same grounds as in all other cases may receive days of paid rest, or monetary compensation for them.

The calculation of the benefit or vacation period is carried out according to a similar principle to the previous one.

How to correctly draw up a vacation order followed by dismissal - a sample?

For the purpose of correct execution of documents accompanying dismissal and proper rest, it is necessary to use the existing unified forms.

For registration of paid time off, a form numbered T-6 is used. For dismissal - T-8.

You can get acquainted with the vacation order with the subsequent termination of employment or you can download it at the link:

Vacation followed by dismissal - a sample entry in the work book

Paid rest itself is not reflected in the worker's documents. But the date of dismissal and foundation - in mandatory... The correct execution of such an entry in the work book is no different from the standard termination of relations at the initiative of the worker.

The labor code contains information about the reason for the termination of relations with a link to article number 77 of the Labor Code of the Russian Federation (you can download the code from the link above). As well as the number and date of the corresponding order.

Vacation report followed by dismissal from the Ministry of Internal Affairs - sample

For employees of law enforcement agencies, days of paid rest can be provided only on the basis of a correctly issued

Are all employees entitled to leave followed by dismissal?- No, not all.

Is the employer obligated to provide the employee with such leave?- No, this is his right, not his duty.

Do I need to terminate the employment contract later if the employee on vacation with subsequent dismissal is sick?- There is no need.

An employee who has decided to quit is entitled to receive monetary compensation for all unused rest days. But instead, he may ask you for a vacation followed by dismissal (Article 127 of the Labor Code of the Russian Federation). If you decide to provide it to an employee, consider the following features.

Feature 1. Not all employees have the right to leave with subsequent dismissal

An employee who is fired for guilty actions cannot apply for vacation with the subsequent termination of the employment contract (Article 127 of the Labor Code of the Russian Federation). For example, an employee who has repeatedly failed to fulfill his labor duties and got for it disciplinary action, the last of which is dismissal, is deprived of the right to such leave (Articles 81, 127, 192 of the Labor Code of the Russian Federation).

Feature 2. The employer can, but is not obliged to provide the employee with leave with subsequent dismissal

The law does not oblige to send an employee on vacation with subsequent dismissal just because he has filed a statement about it1. If the employer is unable or unwilling to provide the employee with such rest, he pays him monetary compensation for the unused vacation on the last day of work. This rule is especially valuable if the organization is liquidated or its staff is reduced and the actual date of dismissal must coincide with the planned one.

However, if the parties entered into an agreement on termination of the employment contract, in which they prescribed that the employee is entitled to leave with subsequent dismissal, the employer does not have the right to refuse it in the future (see sample).

Advice
Warn the employee how many days of vacation with subsequent dismissal you will pay him. If it turns out that the employee has already taken part of the vacation that he did not work, withhold the overpaid amounts from his last salary (but not more than 20 percent of its size (Article 138 of the Labor Code of the Russian Federation)).

Related documents

Feature 3. Leave with subsequent dismissal must be provided entirely for the current working year, and not for the months actually worked in it

The application or leave agreement may indicate how many days of rest your employee will take. If the specific duration of the vacation is not specified, the employee must be provided with all unused rest days in the current working year, and only those that he actually worked should be paid2.

Example

Oleg A. worked at Gloria LLC for six months, after which he applied for leave with subsequent dismissal. The employer agreed to grant him such rest before terminating his employment contract. Since Oleg A. did not specify exactly how many vacation days he wants to receive, Gloria LLC is obliged to provide him with 28 calendar days, but pay only 14 of them.

An employee works out 2.33 days of annual leave per month (28 calendar days: 12 months) (Article 122 of the Labor Code of the Russian Federation, clause 28 of the Rules). Consequently, for six months, Oleg A. worked 14 paid calendar days of rest (2.33 days x 6) 3. The remaining 14 days will be given to him, but not paid.

Feature 4. Personnel documents on vacation with subsequent dismissal are drawn up in a special order

As noted above, leave with subsequent dismissal is granted to an employee on the basis of his application or an agreement between him and the employer (Article 127 of the Labor Code of the Russian Federation) (see sample application). Next, you need to issue an order (Article 84.1 of the Labor Code of the Russian Federation). The law does not provide for a unified form of order on granting an employee leave with subsequent dismissal. In practice, it can be published in two ways:

• in the form of two orders (on the granting of leave (according to the unified form No. T-64 or T-6a4) and on the termination of the employment contract (dismissal) (according to the unified form No. T-84 or T-8a4));
• in the form of one order for granting leave to the employee, followed by dismissal in any form (see sample).

Advice
Regardless of whether the employee will be paid for vacation followed by dismissal or not, put down the letter code "OT" (numeric "09") in the time sheet and indicate the vacation pay that you actually pay to the employee in the calculation note.

Based on this document, the personnel officer and the accountant should draw up two notes-calculations according to the unified forms No. T-604 and T-614: about vacation and about dismissal (see sample). Then you need to make an entry in the work book and close your personal card (according to the unified form No. T-24).

Work-related documents ( employment history, certificate of earnings, etc.), as well as all due amounts must be issued and paid to the employee on the eve of his vacation5. In personnel documents, the date of dismissal of an employee will be the last day of his vacation, and the last working day is the day before the vacation5.

Feature 5. If an employee on vacation with subsequent dismissal falls ill, the date of termination of his employment contract is not postponed

Vacation followed by dismissal has an important feature - in the event of an employee's illness, it is not extended7. For a period of temporary incapacity for work, you only need to pay an employee a benefit. He is not entitled to additional payment for days of rest that were not used due to illness, since all calculations were made and work documents were submitted before the start of the vacation with subsequent dismissal6.

Example

Georgy P., Legal Counsel of Business-Yugra LLC, went on vacation with subsequent dismissal on July 24, 2012. The date of termination of his employment contract is July 30, 2012. On July 27, he fell ill and closed the certificate of incapacity for work on August 6. On the same day he brought his former employer sick leave for payment.

Insurance experience of Georgy P. - 10 years, the amount of his earnings for 2010 and 2011 - 600,200 rubles. The number of days of his illness is 11. Let's calculate what kind of temporary disability benefit he will receive8.

Georgy P's temporary disability allowance:

RUB 600 200 : 730 x 11 days x 100% = 9044.11 rubles.

Feature 6. An employee cannot change his mind to quit if he has already gone on vacation

An employee can change his mind to quit only before his annual vacation begins (Article 127 of the Labor Code of the Russian Federation). An employee who went on vacation with subsequent dismissal does not have the right to withdraw his application or amend the agreement to terminate the employment contract. If an employment contract is terminated by agreement of the parties, this also requires the consent of the employer (Article 78 of the Labor Code of the Russian Federation).

1 Articles 127 and 140 of the Labor Code of the Russian Federation, definitions of the Constitutional Court of the Russian Federation of February 5, 2004 No. 29-O and of January 25, 2007 No. 131-O-O.

3 The rest days resulting from the calculation must be rounded in favor of the employee (clause 35 of the Rules, letter of the Ministry of Health and Social Development of Russia dated December 7, 2005, No. 4334-17).

4 Approved by the Resolution of the State Statistics Committee No. 1.

5 In this case, vacation pay must be paid to the employee at least three days before the start of the vacation (part nine of article 136 of the Labor Code of the Russian Federation).

6 Articles 84.1, 127, 136, 140 of the Labor Code of the Russian Federation, determination of the Constitutional Court of the Russian Federation of January 25, 2007 No. 131-O-O.

8 Parts 3, 4 and 5 of Art. 14 of the Federal Law of December 29, 2006 No. 255-FZ "On compulsory social insurance in case of temporary disability and in connection with motherhood."

Tatiana BUKVICH, Head of the Legal Department, LLC PJSC Shield and Mech (Surgut)