Is it possible to change the date of dismissal?
Free legal consultation We will answer your question in 5 minutes!
Free legal consultation
We will answer your question in 5 minutes!
Ask a Question
Call: 8 800 511-39-66
As a general rule, the date of dismissal from office cannot be changed. It shifts only taking into account holidays or weekends. The parties can agree on a specific date of dismissal only if they formalize the termination of the contract by agreement of the parties.
Thus, the dismissal date is determined as follows: it always falls on a weekday. The exception is situations when an employee cannot go to work for valid reasons. The HR department should carefully check whether the dismissal date falls on a working day or a weekend to avoid violations of the law, resulting in fines and lawsuits.
How to mark the date correctly?
Based on the resignation letter, you can see the required date for termination of the employment relationship between the company and the employee.
In the statement
The resignation letter is written or printed in any form, but indicating all the required details.
The date of dismissal must be stated (“Please fire me on March 22, 2021...”). To avoid misunderstandings, you should not write from what date the employee must be released from performing labor functions (“I ask you to fire me from March 22, 2020 - incorrect wording”). With this writing, the last working day may be considered March 23 - the next day.
Below is an example of the correct writing of the date of dismissal in a resignation letter.
Example of a resignation letter
It is important to remember that the date the document was drawn up and the date of dismissal are not the same thing. In most cases, the interval between dates is two weeks.
In the order
The date of drawing up the dismissal order and the day of dismissal (last working day) must coincide.
It is not worth issuing an order earlier, since a person wishing to resign during the two-week period of work can take advantage of the opportunity to withdraw his resignation letter.
This right is granted to him by Article 80 of the Labor Code of the Russian Federation. An exception to the rules is the execution of a dismissal order due to staff reduction before the actual day of dismissal.
In the work book
On the day of termination of the contractual relationship (if the employee is actually in the organization), he is given a work book, in which a record of dismissal is made with reference to the articles of the law.
The date of dismissal in the record will be the day, month and year of termination of the contract.
The employer no longer bears any obligations for the delay in issuance if the employee does not pick up his documents in a timely manner (he is only sent a reminder notice).
How to get reinstated at work through the court? Information is in our article. How to quit your job remotely without working off? Find out here.
Can a divorced woman with a child be fired? Read here.
Is it necessary to work on the day of dismissal?
Since the last day of dismissal is considered a working day, the employee must work it. Usually at this time the cases are completed and transferred, the calculation and work book are issued.
This is also important to know:
Dismissal under a fixed-term employment contract: procedure and features of the procedure, working period
The employer has the right to release the citizen early if he has time to transfer all his affairs.
Standard cases and terms of termination of the contract
Application at your own request
If an employee decides to resign on his own, then by law he is required to notify management about this two weeks (14 calendar days) in advance. In addition, the application for termination of the contract itself usually indicates the day of dismissal. However, employees often have doubts whether the day of dismissal is considered a working day or not. The Labor Code specifies: the last working day is considered to be exactly the date that falls on the last day of such warning.
By virtue of Article 14 of the Labor Code of the Russian Federation, the warning period should begin to count the next day after submitting an application to the company’s personnel service. If, for example, an employee wrote a statement and submitted it to his superiors on December 1, then he must indicate December 15 in it. This will be his last day at work. It is important to clarify that in the application you need to avoid the preposition “with”: you need to write not “I ask you to fire me on December 15,” but simply “to fire you on December 15.” This will make it easier for the personnel officer to navigate when drawing up an order, and the inspectors will not have any unnecessary questions. In addition, this wording serves as protection against discrepancies in the understanding of what day the last working day falls on in the course of possible disputes between employees and employers.
Agreement of the parties
If the parties decide to terminate the employment contract by mutual consent, they also draw up a separate document about this. In this situation, there may be no two-week working period, and any day convenient for both parties for completing professional duties and terminating the employment contract can be chosen. This is what should be indicated in all documents.
What is an employee required to do during the working period?
If an employee resigns voluntarily, he must perform his job duties for another two weeks. Work begins the next day after submitting documents to the employer. The working hours do not change; the employee has the right to days off. Also at this time he may get sick or go on vacation.
The following have the right to leave without work:
- pensioners;
- pregnant women;
- adoptive parents of minors under 14 years of age;
- persons admitted to an educational institution for full-time study;
- employees subject to disciplinary liability;
- workers moving to another region or abroad;
- citizens caring for a disabled person or a child under 14 years of age.
So, the parties have the right to agree on dismissal without work. In addition, there is a special category of persons who are not required to work. They have the right to leave the employer at first request.
Taking into account weekends and holidays when calculating the working period
A fairly pressing issue is the system for accounting for weekends and holidays when calculating working hours.
The law does not say that these days are not taken into account in the required two-week period.
And according to the law, the employer has no right to demand that an employee work extra days, citing holidays or weekends.
The Law states that the period of service is calculated in calendar days. But there is also a point that confuses many employees. It states that if the last day of the calendar period falls on a non-working day, then dismissal occurs on the next working day after the expiration of this period.
This point should be taken literally. If an employee submitted a letter of resignation on December 19, and it was registered in the personnel department on December 20, the last day of the work period becomes January 3 of the next year. The days from January 1 to January 6 are considered holidays, that is, the employee will be fired on January 7.
The employer does not have the right to require an employee to work extra days, citing holidays or weekends.
Questions
When is final payment due?
Full payment is made to the employee at the time of leaving work. He is given a work book, the requested documents, and is also paid wages for the time worked. Additionally, compensation is provided for unused vacation.
When laid off, the employee receives severance pay and payments for 2-3 months. If a citizen is absent from the workplace, the payment is issued the next day or upon his first request.
What happens if you violate the terms of payment upon dismissal?
It happens that companies violate deadlines and do not make payments on the day of dismissal. In case of absenteeism of an employee, the company is not subject to punishment, since the employer’s actions are not at fault.
This is also important to know:
Dismissal under an article: why you can be fired
For violation of the final payment deadlines, the organization will be punished in accordance with administrative legislation. The fine amount is from 1,000 rubles. up to 50,000 rub. The employee also has the right to file a civil lawsuit to recover penalties. It is 1/150 of the refinancing rate of the Central Bank of the Russian Federation. For a delay in issuing a work book, the company will pay compensation in the amount of average earnings for the entire period of delay.
How to write a resignation letter?
The resignation letter is written in any form. It is advisable to calculate the moment of termination of the contract so that it coincides with weekdays. It is recommended to specifically state the date of dismissal without the preposition “from”: “I ask you to dismiss at your own request on January 25, 2019.”
Is it possible to find a compromise with an employee if the day of dismissal falls on a weekend?
It happens that dismissal must be formalized on a weekend or holiday. The employee may be against moving the date of termination of the employment contract forward. Especially if he has agreed on employment at a new place of work.
In such a situation, it is possible to terminate the employment relationship by agreement of the parties by agreeing on a more convenient day. In this case, the employee will no longer be able to withdraw his resignation letter of his own free will, but he does not have to work for 2 weeks.
What day is considered the day of dismissal and is it fair to consider it a working day?
According to the provisions of the current legislation, the day of separation from the company is considered to be a working day. The date falling on this day must be expressly indicated in the resignation letter of the employee. On this day, the citizen leaving the company receives a work book and other documents required to be issued in this case, as well as a full financial statement.
According to the standard scheme, if the day of dismissal falls on a weekend or holiday, the employee must receive a payment from the company on the first working day that immediately follows this weekend.
So, for example, if the date specified in the resignation letter falls on Sunday, the employee must appear for the paycheck, work book and other papers on Monday.
It is precisely this scheme for determining the day of dismissal that applies to the most common way to leave the company - when leaving at will - as well as when leaving by mutual agreement of the parties.
If the day of dismissal falls on a weekend or holiday, the employee must receive a paycheck from the company on the first working day
If an employee has expressed a desire to go on vacation followed by dismissal, the last working day and day of dismissal for him will be the final day of vacation. If an employee gets sick and goes on sick leave during the working period, to complete the dismissal process, you will need to wait until the sick leave is closed. The next working day after leaving sick leave will be accepted as the day of dismissal in this case. Sick leave must be paid in full. If an employee does not report to the workplace after the end of sick leave, the missed days will be considered absenteeism.
In the event of expiration of the fixed-term contract, the standard scheme is also applicable. In such a situation, the employer is obliged to warn the employee about the upcoming event three days before the date of dismissal. The contract under which a temporary employee was hired for the period of absence of the main employee expires on the day the main employee leaves. In this situation, the code does not require notifying the temporary worker of the return of the permanent one.
When it comes to dismissal at the initiative of the employer, when staffing is reduced, when dismissal upon return from vacation or sick leave, the above scheme also applies. If a company wants to fire an employee for absenteeism, he can be fired on the last working day before the absenteeism, but orders and other documents must contain the current date. There is a second option, which is that the dismissal occurs on the employee’s first working day after absenteeism. In this case, the date of dismissal and the date of the dismissal order will coincide, and days of absenteeism are marked accordingly in the report card and are not subject to payment. This method is more preferable for the employer, since it will be impossible to find fault with him during legal proceedings.
Dismissal due to the death of an employee also occurs. In this case, in order to issue a dismissal order, it is necessary to obtain a certificate of death from the relatives of the deceased. The day of dismissal will be considered the day of death of the employee. In this case, the day of dismissal will be the last working day if the person died on a working day, and will not be such if this unpleasant event occurred on a day off. If the day of dismissal falls on a weekend, the dates of the order and direct dismissal will be different. The order must indicate the date of presentation of the death certificate to the employer.
Video: last day of work upon dismissal
Last day – work and payment
On the last day, the employee must fulfill his work duties (Article 84.1 of the Labor Code of the Russian Federation). According to Article 140 of the Labor Code of the Russian Federation, upon completion, the employer is obliged to pay wages for all days worked, as well as compensate for vacation days that he did not have time to use.
If an employee quits due to conscription for military service or unwillingness to change his place of work due to the relocation of the organization, then he is entitled to compensation in the amount of two weeks' earnings . If the termination of the contract occurred due to the cessation of work of the enterprise , the employee is paid compensation in the amount of a monthly salary .
On the final working day, it is necessary to check all reports and the integrity of the organization’s property. An act of primary transfer of affairs to a new employee or authorized person should be drawn up. It is also necessary to carry out an inventory ; if it reveals a breakdown, damage or loss of equipment, the compensation amount is deducted from the total settlement amount.
Important! An employer cannot force a former employee to work after his official resignation, even if some issues were not resolved on the last working day upon dismissal.
If an employee has been issued workwear or a uniform, he is required to hand it over against signature on the final day of work. Similarly with any other property of the organization - a car, telephone, computer, etc. If there is damage to the property, the employer has the right to demand compensation corresponding to the degree of damage caused.
On the day of dismissal, the employee is required to be issued the following documents (Article 84.1 of the Labor Code of the Russian Federation):
- A dismissal order signed by both parties, certified by the seal of the organization;
- A work book with the reason for termination of the contract and the corresponding article of the Labor Code of the Russian Federation entered in it;
- Medical record, if one was kept by the employer;
- Help form 2-NDFL.
If the work book is refused to be issued on the final day, the organization may be fined up to 50,000 rubles .
At the request of the employee, the following may be issued:
- Information on wages for the last two years of work;
- Information about vacations used;
- Copies of the order for employment;
- Personal characteristics.
Reference! The time spent on calculations, as well as issuing documents, should be included in the work shift. Management does not have the right to detain a person to complete the dismissal procedure.
