Vacation at your own expense. Is it that simple? How to fire while on vacation How to quit at your own expense

Vacation at own expense according to the norms of the Labor Code of the Russian Federation

The rules for registration of unpaid leave are contained in Art. 128 of the Labor Code of the Russian Federation.

To get vacation at your own expense with subsequent dismissal the employee concerned must meet the following conditions:

• write a written statement;
• indicate a good reason, in view of the presence of which he needs leave;
• obtain the consent of the administration of the organization.

In this case, the reason for the leave can be any circumstance, the degree of respect of which is determined by the administration of the organization. As for the duration of the vacation and the specific time period for which it should fall, these issues are agreed with the administration.

It must be remembered that the administration of the organization has the right to refuse unpaid leave, citing the need for an employee to be present at work, even if he wants to quit after the rest.

However, there are categories of employees for whom the employer does not have the right to refuse to provide unpaid leave, even if such leave ends with dismissal due to on their own... We will list them below.

Unconditional right to unpaid leave

According to Part 2 of Art. 128 of the Labor Code of the Russian Federation, the following employees have the unconditional right to leave at their own expense with subsequent dismissal:

If an employee falls into one of the specified categories of workers, or if one of the listed reasons is present, the administration of the organization is obliged to provide him with leave at its own expense, followed by dismissal. In this case, the employee has the right to determine the duration in the above framework.

Dismissal without working two weeks on account of vacation at their own expense

According to the requirements of Part 1 of Art. 80 of the Labor Code of the Russian Federation, an employee must notify the administration of the organization about his desire to quit at least 2 weeks (14 days) before the date of the proposed dismissal. At the same time, the period of compulsory service provided for by Part 1 of Art. 80 of the Labor Code of the Russian Federation, may be reduced or not applied at all, if the employer does not object to this.

The norms of the Labor Code of the Russian Federation do not establish that during the period of compulsory work before dismissal, an employee must certainly be at his workplace. Consequently, at this time the employee may be on sick leave, on vacation (paid or not), etc.

But the administration of the organization does not have the right to fire an employee for violation of discipline or other culpable actions while on vacation. Such actions are expressly prohibited by Part 6 of Art. 81 of the Labor Code of the Russian Federation.

Accordingly, if the employee, for the reasons specified in Art. 128 of the Labor Code of the Russian Federation, can apply for unpaid leave, then the allotted days of such leave can be credited to him on account of the compulsory work required upon dismissal of his own free will.

If there are no grounds for unconditional granting of unpaid leave to the employee, this does not prevent him from negotiating with the employer on granting it in general order, coordinating this issue at the same time as the dismissal.

Vacation application at own expense with subsequent dismissal: sample

The application is written in free form. The legislation does not provide for any unified forms or forms. Typically, a statement consists of two parts:

Don't know your rights?

• Caps where it is required to indicate the position and initials of the head of the company, where the employee works, as well as the initials and position of the latter. The data in the header is shown in a column at the top right of the document.
• The main text. This part contains the employee's request for dismissal, the date is indicated last day work, as well as a request to provide unpaid leave, which will be counted as work.

The application is signed by the employee. In this case, all the terms indicated in the document are calculated from the moment of its acceptance by the employer's representative. It is best to write a statement in 2 copies. The first of them is transferred to the representative of the employer, and on the second, the specialist who accepted the document indicates the date of acceptance, his position, initials and signature. The second copy remains with the employee and serves as confirmation of the fact and date of filing the letter of resignation.

Sample application

General Director of Iris LLC

Semenov Petr Mikhailovich

from sales manager

Egorov Igor Evgenievich

Statement

Please dismiss me of my own free will from _._.____. For the period of the period provided for in part 1 of Article 80 of the Labor Code of the Russian Federation, I ask you to provide me with unpaid leave in the amount of 14 days (from _._.____ to _._.____).

_._.____ ______________________ Egorov I.E.

If the employee is not one of the persons who are entitled to annual unpaid leave, the employer has the right to refuse to grant him leave, and therefore the employee will have to be at the workplace for 2 weeks.

The procedure for dismissal after leave without pay

The procedure for dismissal after vacation is governed by Art. 84.1 of the Labor Code of the Russian Federation. On the dismissal of an employee in accordance with Part 1 of Art. 84.1 of the Labor Code of the Russian Federation, an order is issued. As a general rule, the last day of the employee's work is considered the day of dismissal. Since he will not be at work on vacation, the day of dismissal will be the day specified in the letter of dismissal.

The question of which day will be the last in this situation is decided on the basis of the provisions of Part 5 of Art. 80 of the Labor Code of the Russian Federation. This day must be next to the day on which the warning expired.

For example, an employee wrote a statement and gave it to the employer on July 1. The two-week period in this situation will start from July 2. The last day of the deadline will be July 15th. Accordingly, the last day of work should be considered July 16.

According to Part 5 of Art. 80 of the Labor Code of the Russian Federation on the last day of work, the administration must fill out and issue to the employee work book, calculate it, and also issue work-related documents:

• a certificate of the amount of earnings for the past 2 years;
• 2-NDFL certificate;
• a certificate of the amount of the transferred pension insurance contributions.

According to Part 6 of Art. 80 of the Labor Code of the Russian Federation, if, after the expiration of the term of service, the employer has not issued an order for dismissal, and the employee, in turn, does not insist on dismissal, then the employment contract continues.

In addition, the employee can withdraw their application at any time and return to work. Unless another person is invited to take his place in writing.

So, the norms of the Labor Code of the Russian Federation largely leave the issues of granting unpaid leave before dismissal at the discretion of the employer. It is he who will decide whether to grant a vacation or not. The employer will not have a choice only if the employee has the right to go on unpaid leave on the grounds provided for by the Labor Code of the Russian Federation, which we have listed in the article.

Vacation at own expense followed by dismissal assumes that the employee, after leaving the unpaid leave, will no longer continue to work. Consider under what circumstances you can go on unpaid vacation, and how to quit immediately after it ends.

When can you go on unpaid leave?

The opportunity to go on unpaid leave is provided for by Art. 128 of the Labor Code of the Russian Federation. This type of vacation is granted at the request of the employee, and if there are grounds for that.

As the grounds for granting unpaid leave to an employee, one can single out:

1. Family circumstances in the life of an employee, which the Labor Code of the Russian Federation does not specify.
2. The presence of other valid reasons, an exhaustive list of which is not determined by the Labor Code of the Russian Federation. The reasons can be any, and whether they are valid or not - the management decides.

Vacation period is negotiated by the parties labor relations separately, its minimum and maximum sizes can be different - from one day to infinity (upon reaching an agreement between the employee and the employer).

The procedure for granting unpaid leave to an employee is as follows:

• an employee applies for unpaid leave;
• the employer is considering it;
• a decision is made and the head is put down about his satisfaction, or not satisfaction.

Part 2 of Art. 128 of the Labor Code of the Russian Federation provides for cases when the employer has no right to deny the employee his right to go on unpaid leave. The law defines the minimum number of days that an employee can use, depending on the situation. For clarity, we will give the reasons for the mandatory provision of unpaid leave and its minimum terms in the table.

Can an employee write an application for granting him unpaid leave with subsequent dismissal?

The law does not directly establish such a possibility, and the Labor Code of the Russian Federation bypasses this issue. Art. 127 of the Labor Code of the Russian Federation allows going on vacation with subsequent dismissal only if the vacation is paid. At the same time, the legislation does not contain a prohibition on going on unpaid leave with dismissal at the end of it.

Since there is no ban, the final decision is made by the employer. If he allows the employee to quit immediately after unpaid leave, then there will be no problems.

In addition, you can resign of your own free will, guided by the general rules on the need to warn the employer about dismissal 2 weeks before the date of termination of the contract (part 1 of article 80 of the Labor Code of the Russian Federation). To do this, you can submit two applications at the same time - for the provision of vacation at your own expense and for dismissal. The period of being on vacation is included in the notice period. If the vacation at your own expense is more than 14 days, then after its expiration you can not go to work. If the vacation period is shorter, you will have to work on the remnants of the two-week "working off" period.

Thus, the easiest way to quit immediately after the end of your unpaid leave is to negotiate with your employer. The second way is to quit according to the general rules provided for.

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Every employee has the right to vacation. But after the rest, the employee may no longer return to work, having previously agreed with the employer the vacation with subsequent dismissal. In our consultation, we will remind you what vacations are, and tell you how you can combine vacation and dismissal.

What vacations are there

The Labor Code provides for the following types of leave:

Unlike other holidays, annual paid leave that is not used on time can be carried over to the future, and in the event of dismissal, it is subject to compensation to the employee.

Annual paid vacation

Every person who works under an employment contract has the right to leave (part 5 of article 37 of the Constitution of the Russian Federation. Article 21 of the Labor Code of the Russian Federation).

At the same time, for the period of the next vacation, the employee, in accordance with labor legislation, retains his place of work (position), as well as average earnings (Article 114 of the Labor Code of the Russian Federation).

Paid leave should be provided to an employee regardless of his place of work, shift shifts, form of remuneration, position held, term of the employment contract, organizational and legal form of the employer, etc. Therefore, vacations are provided, among other things, to those who work:

At the same time, leave is not provided to persons with whom civil law contracts have been concluded (Article 11 of the Labor Code of the Russian Federation).

Another paid vacation: the procedure for providing

The working year, for which the employee is granted annual paid leave, is counted from the date the employee entered work, and not from January 1 (Article 123 of the Labor Code of the Russian Federation).

As for the first year of employment with a new employer, the employee gets the right to take leave after 6 months. But by agreement with the management, a newly-made employee can go on vacation earlier (Article 122 of the Labor Code of the Russian Federation).

The next paid vacation can be provided to the employee at any time during the calendar year in accordance with the vacation schedule (Article 122 of the Labor Code of the Russian Federation). Each employer approves such a schedule no later than 2 weeks before the onset of the calendar year. This means that no later than December 17 of the current year, a vacation schedule for the next year must be drawn up and approved (Article 123 of the Labor Code of the Russian Federation).

If the employee is going on vacation according to the schedule, then it is not necessary to take an application from him for the next vacation. In this case, it is necessary 2 weeks before the start of the employee's vacation or earlier to send him a notice of vacation against signature (Article 123 of the Labor Code of the Russian Federation). There is no approved form for such a notification, so the employer has the right to decide how to notify the employee (Letter of Rostrud dated July 30, 2014 No. 1693-6-1).

In addition to the notification, it will be necessary to issue an order on granting leave to the employee or employees in the form No. T-6 or No. T-6a, respectively (approved by the Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 No. 1).

The vacation must be paid no later than 3 calendar days before the start date of the vacation (Article 136 of the Labor Code of the Russian Federation).

Extension and postponement of annual paid leave

The Labor Code of the Russian Federation provides for several cases when the vacation must be extended or postponed, taking into account the wishes of the employee. This applies to situations when an employee, during his annual leave (Article 124 of the Labor Code of the Russian Federation):

• sick or injured. In this case, the allowance for the days of temporary disability is paid to the employee in the general manner (Letter of the FSS RF dated 05.06.2007 No. 02-13 / 07-4830);
• fulfilled public duties under which the legislation provides for exemption from work. For example, he was a juror in court (Art. 10. Clause 3, Art. 11 of the Law of 20.08.2004 No. 113-FZ).

If an employee, while on vacation, immediately notified his employer of illness or fulfillment of state duties, then his vacation can be automatically extended by the appropriate number of days (clause 18 of the Rules on regular and additional vacations, approved by the NKT USSR on April 30, 1930, No. 169) ... At the same time, there is no need to issue a separate renewal order. As a result, the employee will leave for work later than the originally set vacation end date.

If the employee goes to work in accordance with the vacation schedule and only then informs the employer, for example, that he was ill, then it will be necessary to agree with him on the transfer of part of the vacation to another period. The employee will have to write an application for the transfer of vacation.

By the way, if the sick leave was issued due to the need to care for a sick family member, then the leave for the period of incapacity for work is not extended or transferred (clauses 40, 41 of the Order to the Order of the Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n. Rostrud letter dated June 1, 2012 No. PG / 4629-6-1).

What is leave followed by dismissal

Leave with subsequent dismissal is granted to the employee on the basis of his written application. In this case, the last day of vacation will be considered the day of dismissal.

Granting leave before dismissal to an employee is a right, not an obligation, of the employer. Of course, this does not apply to the case when the employee's next vacation before dismissal is provided for by the vacation schedule.

Vacations with subsequent dismissal are not granted to an employee whose employment contract is terminated for his guilty actions.

Let us also recall that when granting leave with subsequent dismissal, the employee has the right to withdraw his letter of dismissal before the day of the start of the vacation, if another employee is not invited to his place by way of transfer.

Leave on dismissal

The employee's right to leave upon dismissal is enshrined in Art. 127 of the Labor Code of the Russian Federation. This right can be exercised:

• in the form of providing leave with subsequent dismissal;
• in the form of payment of compensation for unused vacation.

In any case, all days of unused vacations of the employee at the time of dismissal must be provided “in kind” or compensated for in money.

The main paid leave, which is granted to the employee annually for 28 calendar days, cannot be compensated for in money if the employee continues to work. This is how it differs from additional vacation. After all, to pay monetary compensation for an additional paid vacation, an employee who did not leave the organization had to submit a written application to the employer with a request to replace the additional vacation with money. But when an employee is fired, the situation changes. The employee should not write any applications for the payment of compensation for both the main and additional leave upon dismissal, because the payment of unaccompanied vacations upon termination of the contract is an unconditional obligation of the employer.

The main question that stands when presenting a vacation followed by dismissal is how to properly formalize parting with an employee in this case.

Vacation followed by dismissal: how to properly arrange

In the time sheet according to the form No. T-12 or No. T-13 (approved by the Resolution of the State Statistics Committee of 01/05/2004 No. 1), the days of leave preceding dismissal are reflected as ordinary "vacation" days:

• if this is the main paid vacation, then the letter code "OT" or the digital code "09" is indicated;
• if the employee is on additional paid leave, then in the report card you need to put "OD" or indicate the digital code "10".

If vacation time falls on a weekend holidays, then they are, as we have already noted. do not reduce the duration of the vacation, and therefore are reflected in the report card as a regular weekend with the letter code "B", which also corresponds to the digital code "26".

How to calculate the number of vacation days upon dismissal

Step 1: Calculate the employee's length of service with the employer.

Read also: Work without a work book

Step 2: Determine the number of vacation days that the employee is entitled to for the entire period of his work.

Step 3: Determine the number of vacation days already taken by the employee.

Step 1: calculate the length of service with the employer in months

The answer to the question of what is included in the length of service, which gives the right to annual paid vacations, is contained in Art. 121 of the Labor Code of the Russian Federation.

Work experience, which gives the right to the main paid leave
entitles you to basic paid leave

Step 1: Calculate the employee's length of service with the employer:

From 05/05/2015 to 06/30/2016, the employee worked for the employer for 13 full months (from 05/05/2015 to 06/04/2016) and 26 days, which are rounded up to a full month. Total: 14 months.

Step 2: Determine the number of vacation days that the employee is entitled to for the entire period of his work (K p):

K n = 28 calendar days / 12 months * 14 months = 32.67 calendar days

Step 3: Determine the number of vacation days already used by the employee:

Number of days off = 14 + 14 + 3 = 31 (day)

Step 4: Calculate the number of non-holiday vacation days (K n):

K n = 32.67 - 31 = 1.67 (days).

Step 5: Determine the average daily earnings (SDZ) for calculating compensation, using data on the accrued wages for the 12 calendar months preceding the vacation (calculation period) (salary 12), the number of full calendar months (KP) and the number of calendar days in incomplete calendar months (KN) in the billing period:

Salary 12 = (50,000 * 4 + 10,000 + 27,273) * 1.2 + 30,000 + 60,000 * 5 + 40,000 + 110,000 = 764,727.60 (rub.)

KN = 29.3 / 30 * 16 + 29.3 / 30 * 16 + 29.3 / 31 * 24 = 53.94 (days)

SDZ = 764 727.60 / (9 * 29.3 + 53.94) = 2 407.53 (rub.)

Step 6: Calculate compensation for unused vacation (CCW):

KNO = 2,407.53 * 1.67 = 4,020.58 (rub.)

Step 7: We calculate payments to the employee in addition to compensation for unused vacation:

• salary for June 2016: 60,000 / 21 * 18 = 51,428.57 (rub.)
• vacation pay for 3 calendar days: 2 407.53 * 3 = 7 222.59 (rub.)

Also read:

Is vacation provided at my own expense with subsequent dismissal?

I have not found the answer to my question. My question sounded like this: "an employee wrote a vacation application at his own expense, followed by dismissal" (and not just a vacation followed by dismissal) Please answer it if you can. thanks!

The current legislation does not provide for the possibility of providing leave at your own expense with subsequent dismissal. The provisions of Art. 127 of the Labor Code apply only to paid vacations, the employee is given the right to choose whether to receive monetary compensation for the vacation. or, with the consent of the employer, to take advantage of paid vacation. Let us pay attention to the fact that the granting of leave with subsequent dismissal has always been considered only as a right, but not an obligation of the employer.

If an employee takes paid leave with subsequent dismissal. then before going on vacation, it is necessary to carry out all calculations with the employee, issue a work book and other documents, since after the vacation expires, the employee and the employer will no longer be bound by obligations under the employment contract (Rostrud letter of December 24, 2007 No. 5277-6-1 ruling of the Constitutional Court of the Russian Federation dated January 25, 2007 No. 131-О-О). This is because. that the employee from the first day of vacation can no longer use his right to withdraw the application for dismissal, therefore, the issuance of documents should not be delayed.

If you have provided an employee with unpaid leave wages in accordance with Art. 128 of the Labor Code, and the employee has expressed a desire to quit after its termination, then up to the date of dismissal indicated by him, he retains the right to withdraw his application for dismissal. Everything personnel documents to dismiss such an employee in accordance with Art. 84.1. The Labor Code of the Russian Federation must be drawn up and issued to the employee on the last day of the notice of dismissal.

The day of dismissal will be the last day of the warning period. those. in your case 02/24/2014. it is this date that you indicate in the dismissal order and the employee's work book.

This conclusion is based on the following:

Happy dismissal. as a rule, it is the last working day of the employee, unless the employee retained his place of work. When granting leave at his own expense, the employee retains his place of work for the entire duration of such leave. Respectively. the day of termination of the employment contract (day of dismissal) in this case will be exactly the last day of the term of the notice of dismissal. If it coincides with the last day of the vacation. then it is on the specified day that the employer is obliged to issue all documents to the employee. related to his work.

Note: in practice, cases of granting leave at their own expense with subsequent dismissal occur (Appellate ruling of the Moscow City Court of 10.10.2013 in case N 11-30425 / 2013). However, the legality of granting such leaves with subsequent dismissal remains controversial, since labor law does not apply by analogy. and Art. 127 of the Labor Code applies only to paid holidays.

Details in the materials of the System:

1. Answer: Is it possible to take a vacation at your own expense, followed by dismissal

According to the meaning of Article 127 of the Labor Code of the Russian Federation, when granting an employee leave with subsequent dismissal, we are talking about the provision of paid leave (main, additional) that was not used by the employee before dismissal. Thus, the law does not provide for the provision of vacations to an employee with subsequent dismissal without pay.

At the same time, with the consent of the employer, an employee can use unpaid leave before dismissal, this cannot be considered a violation (Article 128 of the Labor Code of the Russian Federation). An employee also has the right to apply for dismissal of his own free will, while already on vacation at his own expense (Article 80 of the Labor Code of the Russian Federation). In any of these situations, a ban on withdrawal of the application during the vacation period. established for cases of leave with subsequent dismissal, does not apply.

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Best regards and wishes for a comfortable work, Tatiana Kozlova,

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TOPIC: Vacation at own expense, followed by dismissal

Question No. 10. Can an employee take a vacation at his own expense?
followed by dismissal?

The Labor Code does not provide for unpaid leave with subsequent dismissal. Such a norm exists only for unused paid vacations - basic and additional (part 2 of article 127 of the Labor Code of the Russian Federation).
In practice, employers often apply this provision to vacations at their own expense by analogy (Definitions of the Moscow City Court of 15.02.2013 N 4g / 7-788 / 13 and of 06.12.2011 in case N 33-40058).
According to Rostrud, the employer can provide the employee with leave with subsequent dismissal, but this is his right, not an obligation (Letter of 12.24.2007 N 5277-6-1).

Note. Vacation followed by dismissal
When granting leave with subsequent dismissal, the last day of leave is considered the day of dismissal (part 3 of article 127 of the Labor Code of the Russian Federation). It is the last day of vacation that the record of dismissal in the employee's work book should be dated. Moreover, the last day of work will be the last day of the employee's exit to work. That is, in fact, labor relations with the employee terminate with the beginning of his vacation (Determination of the Constitutional Court of the Russian Federation of January 25, 2007 N 131-О-О and Rostrud Letter of December 24, 2007 N 5277-6-1).
As you can see, in this case, the concepts of "day of dismissal" and "last day of work" do not coincide. This means that it is necessary to return the work book and make a full settlement with the employee before he goes on vacation - on the last day of work (part 5 of article 80, article article 84.1 and 127 of the Labor Code of the Russian Federation).
When granting leave with subsequent dismissal, the employee has the right to withdraw his letter of resignation before the start of the vacation, if another employee is not invited to his place by way of transfer (part 4 of article 127 of the Labor Code of the Russian Federation).

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Vacation at own expense followed by dismissal 3 years 9 months ago # 2155

MOSCOW CITY COURT

Judge of the Moscow City Court N.S. Kirpikova, having studied in the manner prescribed by Chapter 41 of the Code of Civil Procedure of the Russian Federation, the cassation appeal of K.AND.A. received by the court of cassation on January 17, 2013 against the decision of the Chertanovskiy District Court of Moscow dated October 21, 2011 and the appeal ruling of the Judicial Collegium for Civil Cases of the Moscow City Court dated July 18, 2012 in the case of K.I.A. ... to OJSC ".." on the recovery of severance pay, monetary compensation for the delay in payment of the severance pay, compensation for moral damage, on the counterclaim of OJSC "." on invalidation of clause 6.7 of the employment contract,

K.I.A. applied to the court with a claim against JSC "." for the recovery of severance pay in the amount of. rub. cop. compensation for the delay in payment of severance pay, compensation for moral damage in the amount. rub. The plaintiff motivated these requirements by the fact that from April 1, 2011 she was hired by the defendant as a chief accountant. The terms of the employment contract provide for the payment of severance pay in the amount of twelve times the average monthly earnings upon termination labor agreement at the initiative of the employee. On June 7, 2011, labor relations were terminated, however, upon dismissal, no severance pay was paid. The employer's illegal actions caused the plaintiff to suffer physical and mental suffering.
JSC "." Filed a counterclaim against K.AND.A. on invalidation of clause 6.7 of the employment contract concluded between the parties. In support of the stated requirements, she referred to the fact that the specified condition of the employment contract was a malicious agreement of the director of JSC "." retired from society, and K.I.A.
By the decision of the Chertanovskiy District Court of Moscow dated October 21, 2011, the initial and counterclaims were denied.
By the appeal ruling of the Judicial Collegium for Civil Cases of the Moscow City Court dated July 18, 2012, the court decision was upheld.
In the appeal K.AND.A. raises the issue of cancellation of the decision of the court of first instance and the appeal ruling of the judicial collegium in terms of refusal to satisfy the initial claim, believing that these court decisions were made in violation of the norms substantive law.
The judge of the court of the cassation instance, in accordance with part 2 of Article 381 of the Code of Civil Procedure of the Russian Federation, based on the results of the study of the cassation appeal, makes a determination:
1) on the refusal to transfer the cassation appeal for consideration in the court session of the court of the cassation instance, if there are no grounds for revising the court decisions in cassation procedure. In this case, the cassation appeal, as well as copies of the contested court decisions, remain in the court of the cassation instance;
2) on the transfer of the cassation appeal with the case for consideration in the court session of the court of the cassation instance.
Grounds for canceling or changing court decisions in cassation are significant violations of substantive law or norms of procedural law, which influenced the outcome of the case and without the elimination of which it is impossible to restore and protect violated rights, freedoms and legitimate interests, as well as protection of public interests protected by law ( Article 387 of the Code of Civil Procedure of the Russian Federation).
Based on the results of the study of the cassation appeal, no significant violations of the norms of substantive and procedural law committed by the courts during the adoption of court decisions contested by the applicant in this appeal were established, and therefore there are no grounds for transferring this appeal for consideration in the court session of the court of the cassation instance.
Considering the present civil case, the court, on the basis of an assessment of the evidence collected in the case in their totality, for the reasons set out in the court's decision, came to the conclusion that the initial and counterclaims were refused.
As can be seen from the submitted documents, on December 31, 2010 K.I.A. dismissed from her position under the Government of the Republic of Bashkortostan in connection with the liquidation of the organization. From April 1, 2011 the plaintiff was hired in JSC "." For the position of chief accountant in the financial department, an employment contract was concluded with her, under the terms of which K.I.A. the official salary is set in the amount. rub. May 25, 2011 K.I.A. applied for unpaid leave from May 25, 2011 to June 07, 2011 with subsequent dismissal. requested compensation for unused vacation and severance pay... Labor contract with K.I.A. discontinued June 07, 2011
Thus, K.I.A. She worked in the defendant's organization for a little more than two months, of which she actually performed her duties for a month and a half.
It can be seen from the submitted documents that clause 6.7. the employment contract provides for the payment of additional severance pay in the amount of twelve times the average monthly salary of an employee upon termination of the employment contract at the initiative of the employer, as well as upon dismissal at the initiative of the employee.
Refusing to satisfy the claims K.AND.A. the court proceeded from the fact that according to Art. 8 of the Labor Code of the Russian Federation employers, with the exception of employers - individuals not individual entrepreneurs, adopt local regulations containing labor law, within their competence in accordance with labor legislation and other regulatory legal acts containing the norms of labor law, collective agreements, agreements.
In accordance with Art. Art. 56, 57 of the Labor Code of the Russian Federation, the parties to the labor contract are the employer and the employee, the labor contract specifies the terms of remuneration (including the size of the wage rate or salary (official salary) of the employee, additional payments, allowances and incentive payments). An employment contract may provide for additional conditions that do not worsen the position of the employee in comparison with the established labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations.
Article 178 of the Labor Code of the Russian Federation provides for guarantees upon dismissal of employees in connection with the liquidation of an organization or a reduction in the number or staff of employees of the organization. In addition, the employment contract or collective agreement may provide for other cases of payment of severance pay, as well as establish increased amounts of severance pay.
Thus, by virtue of the above provisions of the current labor legislation, the payment of compensations to an employee, including those related to the termination of an employment contract concluded with him, must be provided for by law or the system of remuneration in force in the organization established by the collective agreement, local regulations in accordance with labor legislation and other regulatory legal acts containing labor law norms.
It can be seen from the documents presented that the Internal Labor Regulations of JSC ".", The Regulations on the remuneration of employees of the said company, approved on March 18, 2011, do not provide for the payment of additional benefits to employees upon dismissal of their own free will.
The monetary payment specified in clause 6.7 of the labor contract of April 1, 2011 is not provided for either by law or by internal local acts of OJSC "." other responsibilities.
Under such circumstances, concluding with K.AND.A. an employment contract with the aforementioned condition on the payment of twelve times the average monthly salary upon dismissal of his own free will, the director of the organization went beyond the powers granted to him, in connection with which the inclusion of this condition in the employment contract by a person not authorized to do so by the law and local acts of the employer, does not give rise to the corresponding legal consequences for the parties to the employment relationship, since the true will of the employer to determine labor rights Does not express any relationship with the employee.
In view of the foregoing, the court came to a reasonable conclusion that the finding compensation payment in the amount of twelve times the average monthly earnings of an employee general principles regulation of labor relations, does not meet the principles of proportionality, reasonableness and reasonableness, and therefore there are no legal grounds to meet the stated K.AND.A. claims for collection from JSC "." severance pay upon dismissal. Since the claims for the recovery of the severance pay were denied, the claims for compensation for moral damage declared by the plaintiff are also not subject to satisfaction.
In addition, in the court session it was established that the labor contracts with other employees of OJSC "." Did not include a condition on the payment of additional benefits in the twelvefold amount of the employee's average monthly earnings. The employment contract arose at the moment when it became known about the early termination of the powers of the General Director M.M.M. From the presented documents it is clear that the director of JSC "." MMM. By the decree of the President of the Republic of Bashkortostan dated May 10, 2011, he was appointed Deputy Prime Minister of the Government of the Republic. On May 18, 2011, his powers were terminated at his own request. Grounds for providing K.AND.A. significant advantages over other employees were not named, and the court did not establish.
As seen from the documents presented, sole founder and a shareholder of OJSC "." is State corporation on nuclear energy ".", which on March 30, 2011 sent the assignment of posts staffing table in accordance with the methodology of the sectoral system for organizing remuneration, she proposed to establish only official salaries when hiring, it was proposed to consider the issue of integrated incentive allowances in two months following the results of the assessment of employees, since the budget of the company has not yet been approved.
This instruction of the founder of OJSC "." Was actually ignored by the director of the said company when clause 6.7 was included in the employment contract concluded with K.I.A.
Refusing to satisfy the stated requirements, the court rightly proceeded from the fact that the condition of the employment contract on the payment of compensation upon termination of the employment contract at the initiative of the employee indicates an abuse committed by the parties to the agreement when determining the terms of the contract.
This conclusion of the court is correct, the court is motivated in the decision and is not essentially refuted in the cassation appeal, since the said payment does not apply to the compensation payable upon dismissal of the employee on the indicated grounds, severance pay is not and is not aimed at reimbursing the costs associated with the performance of his labor or other duties, and is also not provided for by the system of remuneration of employees in force in OJSC "."
The panel of judges agreed with these findings of the first instance court, leaving the court's decision unchanged.
The conclusions given in the court decision and the appellate ruling of the judicial collegium are motivated and in the cassation appeal, on the merits, they are not refuted by anything. On the grounds of the cassation appeal, no significant violations of the norms of substantive and procedural law committed by the court of first instance and the judicial collegium are seen, and the court of cassation is not endowed with the right to establish new circumstances in the case and give an independent assessment of the evidence collected in the case by the current procedural legislation.
By virtue of the above, guided by the provisions of Part 2 of Article 381, Article 383 of the Code of Civil Procedure of the Russian Federation,

Having decided to terminate the employment relationship with the employer, each employee has the right to obtain leave with subsequent dismissal, and its provision does not depend in any way on the annual schedule drawn up earlier. The process is characterized by certain nuances, since a person has the right to request compensation for unused days, or to draw up an application and spend the allotted days before quitting, looking for a new job.

What is leave followed by dismissal

It is possible to take leave before quitting, only if the termination of employment occurs due to own initiative or by mutual agreement of the parties. However, in this case, the employer reserves the right, at its discretion, to allow the employee to rest or pay compensation for unused vacation days. If the calculation is due to a violation labor discipline or for other similar reasons, the law is not allowed to take leave before dismissal.

Legal regulation

According to the Constitution Russian Federation everyone has the right to rest, for this reason the employer cannot prevent the employee from exercising this right. The fact that a specialist can take a vacation, and after walking these days, quit is written in the Labor Code, and more precisely, in Article 127. In addition, you need to pay attention to federal laws, an employment contract, since some nuances, for example, additional vacation days, which must also be used or compensated for.

Exercise of the right to rest upon dismissal

It is often possible to observe a situation when an employment contract with an employee is terminated, and this can happen both on the employee's own initiative and at the request of the management. If by this time the subordinate has not exercised his right to take paid rest, which is due annually, the provision of these days before leaving is an integral part of the guarantees of the employee's labor rights. However, employers do not always advertise such an opportunity, and after all, during the rest, the employee retains all rights:

• he continues to be listed workplace;
• length of service is extended for the entire vacation period;
• for health problems, a paid sick leave is required.

Granting leave with subsequent dismissal

As noted, according to the law, before resigning, an employee has the right to take a vacation due to the vacancy period. Practice shows that there are two ways to do this. In the first case, the employee is sent to rest according to a schedule drawn up and approved in advance, and he can write an application for leaving immediately before or directly during the vacation period.

It is important to comply with all the formalities here, since, according to the law, the employer can force an employee to work for a two-week period before dismissing him. At the same time, it is worth knowing that there are some circumstances and categories of workers who do not need working off:

• when enrolling as a student in higher education educational institution;
• upon reaching retirement age;
• moving to a new place of residence of a spouse;
• if necessary, caring for a child, disabled or sick relative;
• at the personal request of the management.

It is possible to apply for a vacation at the same time as the application for care. In this case, it is not necessary to adhere to the approved schedule. Sometimes they can be fired for other reasons, for example, the company may change the owner, there may be a reduction in staff, etc. In this case, instead of a letter of resignation, an employee of the organization signs a notice, which indicates his consent, and writes a letter of leave with subsequent dismissal.

Payment of compensation for unused

According to Russian law, providing an employee with a vacation period with the ability to quit after its expiration is not an employer's obligation, but a right. For this reason, the manager can provide compensation for the days unused by the employee. This option occurs when there is already a replacement in the place of the dismissed employee, since the employee has the right to pick up the letter of resignation until the last day preceding the rest.

How to arrange correctly

In order to comply with all the formalities and correctly draw up the documents, you need to take a number of actions, and some of them are performed by the resigning person himself, and some lie on the stoves of other employees of the organization. Here is an example of a sequence of actions:

1. the employee submits a written application depending on the termination procedure chosen by him;
2. the application is endorsed by the immediate supervisor and transferred to the personnel department;
3. after agreeing it with the management ( director general) an order is issued to grant leave;
4. the document is registered, and the employee confirms with his signature that he has read it;
5. a settlement note is drawn up;
6. the employer signs an order to dismiss the employee;
7. this order is registered in the corresponding journal;
8. the dismissed employee is obliged to familiarize himself with the document, as evidenced by the employee's signature;
9. the settlement note is drawn up;
10. full settlement with the employee is made;
11. in a personal card and work book, a record of dismissal is made;
12. the work book is handed over to the person.

Vacation followed by dismissal of his own free will is reflected in the timesheet using form No. T-12 or No. T-13 similar to standard vacation days:

• main vacation period - code "OT" or "09";
• additional - "OD" or "10";
• weekend holidays - "B" or "26".

Sometimes an employee decides to withdraw the letter of resignation while on vacation. With the consent of the management, this is possible, although an entry in the work book has already been made. In this case, the entry is invalidated and the dismissal is canceled.

Vacation application

For the provision of a vacation period, an application is submitted in any form addressed to the head of the enterprise. It indicates the start date of the holiday and the number of calendar days. If after that the employee plans to quit, then a separate application is drawn up. After submitting applications, a separate order is drawn up for each of them. The sample application has the following form:

Dismissal letter

If you plan to take a vacation with further dismissal, the legislation allows the text of both statements to be combined into one. It indicates the date of the start of the rest, the number of days and the reason for the termination of employment is necessarily prescribed. The employee draws up a statement in any form and looks like this:

Order for granting leave with subsequent dismissal

The company may develop its own form of order to provide employees, followed by dismissal. If the organization adheres to unified forms, then two orders will have to be drawn up: on the granting of leave and on the dismissal, regardless of whether the employee wrote two separate applications, or issued one. An approximate sample of an order that can be developed at an enterprise looks like this:

How the vacation period is calculated

When an employee leaves, the unused vacation period according to the current code is provided in full. If there are unused days from previous years, they must be added as well. An approximate algorithm looks like this:

1. the length of service at the current place is calculated;
2. the number of vacation pay that is due to the resigning person for the entire period of work is determined;
3. the number of unchecked days is calculated;
4. the average daily earnings are calculated for calculating vacation pay;
5. the payment is calculated.

How to determine dates

By law, dismissal occurs on the last day of vacation, but the termination of employment falls on the day preceding the first day of rest. When dismissing an employee, special attention should be paid to the following dates, which will help to carry out the entire procedure in strict accordance with the law:

• acceptance of an application by a personnel worker;
• registration of the application in the registration journal;
• registration of order (s);
• date of receipt of vacation pay;
• final settlement date;
• the date of the end of the employment relationship, the entry made in the employee's work book.

Determination of length of service with an employer

Since an employee of the organization is entitled to a paid vacation period for each year of work, it is necessary to determine the insurance record of his work with this employer. The countdown starts from the first working day, and it does not matter on what date it falls. The working year is counted from this moment. For example, if a person got a job on 12/02/2005, then the first year will be counted from 12/02/2005 to 12/01/2006 inclusive, the second - from 12/02/2006 to 12/01/2007, etc.

The leave period includes:

• all calendar days, including those when the person was on sick leave, on maternity leave.

Vacations are not subject to accounting:

• at their own expense for more than 14 days;
• for child care.

Determination of eligible vacations

According to the legislation, each employee is assigned a 28-day vacation period per year. This is the minimum that the employer must provide. He can take these days at one time, or break the whole rest into parts. In addition, he always has the right to take a vacation at his own expense, followed by dismissal. In some organizations, in addition to the legally established threshold, additional days may be charged, for example, for seniority, harmfulness, for a contract, etc.

Procedure for calculating compensation for unused vacation

If the employee has decided to quit and not use the leave prescribed by law and contract before that, Labor Code obliges the employer to pay the employee compensation for them. You can calculate its amount using the formula below:

KNO = KNDO x SDZ, where

• KNO - compensation for unused vacation period;
• KNDO - Number of unused days;

Leave at own expense followed by dismissal is a procedure that assumes that an employee who decides to end his employment relationship with his company goes on unpaid rest, during the entire period of which he is formally listed among the company's personnel, and only on the last day is considered dismissed.

Such a scheme is generally allowed exclusively with the consent of the manager, who can either agree with the subordinate's request or refuse him, with the exception of some categories that have an unconditional right to such a period of rest.

When registering, an employee writes two statements, about vacation and about dismissal, for his part, the employer issues two orders, although it is allowed to combine them into a single one.

When can you go on vacation at your own expense?

According to Russian law, all employees are entitled to annual paid vacation... Moreover, this opportunity is limited to a certain period. If it is not enough for an employee, then he can go on vacation without saving.

It is assumed that the employee does not go to work and does not receive payments during the period agreed with the company. At the same time, he is listed in this organization, respectively, the length of service is maintained.

The basic principle of providing by the employer is that for the enterprise this action optional... If a subordinate requires such an exemption, then he applies with a request to the company. In the submitted application, he needs to state the reasons, it is desirable that they be respectful.

Next, the organization reviews the application and makes a decision. In this case, both the seriousness of the reasons given by the employee and the fact whether the company will incur losses if its employee is absent are taken into account.

Since there is no unconditional right to such a vacation, he cannot file a complaint about the refusal. On the other hand, it is not allowed to send on the initiative of the employer. This person does not have such a right, it is reserved. only for employees.

At the same time, a number of exceptions... Exists different categories persons who must be granted a certain period of rest. Its duration depends on the specific group in question.

So, participants in the Great Patriotic War have the right to receive 35 extra days rest without content... Old age pensioners (old age) can count on 14 days.

During 14 days spouses (wives or husbands) or parents (father and mother), as well as adoptive parents of employees of a number of law enforcement agencies, can rest without payment. The condition for this is that the employee died due to injury, injury or concussion if he was injured during the execution official duties or because of an occupational disease. These departments include the armed forces of the Russian Federation, internal affairs bodies, drug control, fire service, the system of execution of punishment, customs.

People with disabilities are entitled to unpaid leave of duration 60 days... This benefit is independent of the disability group. An unlimited number of persons have the right to be released on the basis of certain events - registration of marriage, birth of a child, death of relatives. In all cases, the duration is 5 days.

The employee is obliged to submit an application, which is automatically satisfied. The duration of the absence is determined by the applicant himself, it should not exceed the entire permissible period, but may be less.

In addition, additional grounds providing such an exemption may be provided for in the collective agreement of a particular organization.

Dismissal procedure

According to the law, a situation is allowed when an employee is first sent on vacation, and after the expiration of the term, it is considered dismissed. This option for termination of employment assumes that this person completes the last day in the organization, after which the vacation begins. During this period, the employee is officially registered with this company. Further, when the last day comes, he is considered as no longer working in this organization.

This method is available only to those employees who quit either of their own free will or by agreement with the employer. Such an opportunity is absent for a person who has committed a guilty act, who is dismissed by the employer himself by his own decision.

The employer has the right to both provide an opportunity to terminate the relationship, and refuse it. In case of his disagreement, the subordinate is simply dismissed on the last working day in the standard way, after which his work experience in this organization is interrupted.

The procedure for registering this event usually involves writing two applications at once, one of them for vacation, the second for dismissal of his own free will. Both of these requests can be made simultaneously... It is also allowed a situation when an employee first writes a request to grant him unpaid leave, and after that, but before the termination of work, submits a letter of resignation.

At the same time, it is not excluded to write a single statement, which contains a request for both vacation and dismissal of their own free will. The legislation does not prohibit such a scheme.

Such a person retains the opportunity to change his mind and stay in this organization only if his vacation has not yet begun. The final day of work is the last when he can withdraw his letter of resignation. At the same time, the organization will not be obliged to satisfy him if it has already found a candidate for this position during this time.

Withdrawal of the application is not allowed when the employee is already on vacation. It should also be borne in mind that, although formally under this scheme, this person is listed among the staff of his employer until the last day of rest, the company itself can take another employee in his place already directly during the vacation.

The option is not excluded when the person planning to resign submits an application, already on vacation... In this case, the employee only needs to comply with general condition, in accordance with which the filing of a letter of resignation is made no later than two weeks before the day of termination of employment.

At the same time, there is an inaccurate idea that the applicant needs to work for two weeks, but in fact, this rule is only about notification. Therefore, applying during the vacation period in order to quit at the end of it is allowed if the employee has two more weeks of rest at his disposal, otherwise he may need to return to work. In practice, the employer often meets halfway and refuses the two-week period, which is possible if the application was submitted on time.

For its part, the employer, based on the employee's request, publishes two orders - on the granting of leave and on dismissal, since there is no form for the combined document. The currently accepted forms are Form T-6 (T-6a), which is intended for a vacation order, and T-8 (T-8a), which relates to an order to terminate an employment agreement. At the same time, organizations are also not formally prohibited from creating own combined form.

In any case, it is required to attach the original statements from the employee to the orders issued by the company.

Of course, all days off should be reflected in the employee time sheet as standard days.

Settlement with an employee

An employee who plans to quit after the end of the vacation, has the right to receive the funds that are due to him according to the calculation, three days before leaving for rest... The organization is obliged to fulfill all its obligations no later than this date. In particular, they have the right to payment of funds for all uncleared days. The documents should be issued to the employee on the very last day before he goes on vacation.

Additional information on vacation at your own expense without pay is presented below in the video.