Vacation followed by dismissal as correct. The application is the starting point

Do all employees have the right to leave with subsequent dismissal?– No, not all.

Is an employer obligated to provide an employee with such leave? No, it is his right, not his duty.

Is it necessary to terminate the employment contract later if the employee falls ill on vacation with subsequent dismissal?- No, it doesn `t need.

An employee who has decided to quit is entitled to receive monetary compensation for all unused rest days. But instead of it, he can ask you for a vacation with subsequent 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 claim leave 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 received disciplinary sanctions for this, 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 may, but is not required to, provide the employee with leave followed by dismissal

The law does not oblige to send an employee on vacation with subsequent dismissal just because he filed an application for this1. If the employer is unable or unwilling to provide the employee with such rest, he pays him monetary compensation for unused vacation on the last day of work. This rule is especially valuable if the organization is being liquidated or its staff is being reduced and the actual date of dismissal must coincide with the planned one.

However, if the parties have entered into an agreement to terminate the employment contract, in which they stipulate that the employee is entitled to leave with subsequent dismissal, the employer has no further right to refuse it (see sample).

Advice
Warn the employee how many vacation days 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 out, 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. Vacation with subsequent dismissal must be provided in full for the current working year, and not for the months actually worked in it

The statement or agreement on leave with subsequent dismissal may indicate exactly 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 days of rest in the current working year, and pay only for those that he actually worked2.

Example

Oleg A. worked at Gloria LLC for six months, after which he applied for leave with subsequent dismissal. The employer agreed to provide him with such rest before terminating his employment contract. Since Oleg A. did not indicate 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, Oleg A. worked 14 paid calendar days of rest (2.33 days x 6) in half a year3. The remaining 14 days will be provided to him, but not paid.

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

As noted above, leave with subsequent dismissal is provided to the employee on the basis of his application or 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 an order to grant an employee leave with subsequent dismissal. In practice, it can be published in two ways:

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

Advice
Regardless of whether the vacation will be paid with the subsequent dismissal of the employee or not, put the letter code “FROM” (digital “09”) in the time sheet and indicate the vacation pay that you actually pay to the employee in the note-calculation.

On the basis of this document, the personnel officer and accountant should draw up two settlement notes according to unified forms No. T-604 and T-614: on vacation and on 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).

Documents related to work (work book, 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 will be the day preceding the vacation5.

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

Vacation with subsequent dismissal has an important feature - in case of illness of the employee, it is not extended7. During the period of temporary disability, you only need to pay the employee benefits. Additional payment for rest days that were not used due to illness is not due to him, since all calculations were made and documents on work were given before the start of the vacation with subsequent dismissal6.

Example

Georgy P., legal adviser 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 disability certificate on August 6. On the same day, he brought his former employer sick leave to pay.

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

Temporary disability allowance for George P.:

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

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

An employee can change his mind about leaving only before his annual vacation comes (Article 127 of the Labor Code of the Russian Federation). An employee who has gone on vacation with subsequent dismissal does not have the right to withdraw his application or amend the agreement to terminate the employment contract. If the 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, rulings 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 days of rest obtained during 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 Decree of the State Statistics Committee No. 1.

5 At the same time, vacation pay must be paid to the employee at least three days before the start of the vacation (part nine, 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, ruling of the Constitutional Court of the Russian Federation dated January 25, 2007 No. 131-О-О.

8 Parts 3, 4 and 5 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."

Tatyana BUKVICH, head of the legal department of LLC POA "Shield and Sword" (Surgut)

In what order can an employee apply for leave with subsequent dismissal?

Part 2 of Article 127 of the Labor Code of the Russian Federation establishes that an employee may be granted unused vacations with subsequent dismissal. Leave with subsequent dismissal is granted only at the request of the employee. An application may be submitted by an employee at any time. At the same time, it is not required to comply with the terms for granting vacation approved by the vacation schedule.

Writing an application for leave with subsequent dismissal

There are two opinions among practitioners regarding the application for leave with subsequent dismissal. Some believe that the employee needs to provide two independent statements. The first is for dismissal of one's own free will, the second is for the provision of leave. We believe that you can express your desire to take a break and then quit in one statement.

An application for leave with subsequent dismissal is submitted to the name of the employer in any form. What must be included in the application?

• employer data;
• Employee data;
• Request for unused vacation(s);
• The start date of the vacation (vacations);
• Vacation duration;
• notice of dismissal;
• Date and signature of the employee.

When applying for leave with subsequent dismissal, you must remember:

The employer is not required to provide leave followed by dismissal.

The employee has the right to ask for leave with subsequent dismissal. The current legislation does not oblige the employer to satisfy the request of the employee without fail. If the employer does not provide leave, then the employee will receive compensation for unused vacation days for the unused vacation.

You can not apply for leave with subsequent dismissal and immediately go on vacation. It is imperative to find out the decision of the employer, sign the order to grant leave. If the employee independently uses his right to leave and stops going to work, then the employer can dismiss him for absenteeism.

The day of dismissal of the employee will be considered the last day vacation, however, all actions related to dismissal must be completed by the employer on the last day before the vacation.

You can withdraw your resignation letter just before the start of the holiday. If an employee changes his mind about quitting while already on vacation, then he will not be able to do this.

Vacation with subsequent dismissal is not extended in cases established by law for the extension of annual paid holidays.

Vacation with subsequent dismissal cannot be used if the employee is dismissed at the initiative of the employer for committing guilty acts.

Summarizing.
An application for leave with subsequent dismissal is submitted in a simple written form. There is no specific application form. In the application, you must declare your desire to use the vacation and terminate the employment relationship with the employer.

The circumstances under which an individual decides to leave an organization can vary. Sometimes there is a need to break off labor relations at the same time as a well-deserved rest.

In most cases, upon dismissal from an organization, an employee has unused vacation days, which can either be replaced with monetary compensation (part 1 of article 127 of the Labor Code of the Russian Federation), or issued with subsequent termination of employment (part 2 of article 127 of the Russian Federation). An exception is cases when an employee is dismissed for guilty actions (non-fulfillment of labor duties, absenteeism, immoral acts - Article 81 of the Labor Code of the Russian Federation). The whole procedure can be broken down into steps:

1. Providing an application.
2. Issue of the order.
3. Calculation.
4. Possible withdrawal of the application.

Application for leave with subsequent dismissal

A resigning employee provides the employer with a request not only for dismissal, but also for rest. There is no unified form, so you can write in an arbitrary form with the obligatory indication of the start date of the vacation and the date of termination of work in the company. You can use the attached sample application for leave with subsequent dismissal.

Coordination with the employer

Having received such a "petition", the employer may agree with the appeal or not. In the first case, an order is issued. In the second, the employer retains the right to refuse to dismiss the employee in this way, while the latter is paid monetary compensation for unused vacation days. In addition, in agreement with the employer, the employee can arrange some of these days in the form of rest, and receive the remainder in cash compensation.

Please note that if he is among those who have the priority right to rest at any convenient time, the employer is obliged to provide it.

Preparation and publication of the order

Based on the application received from the employee, the employer issues an order. There are two options here:

• the organization uses unified forms of orders;
• the organization uses self-developed forms.

In the first case, two orders will have to be issued: the first - on the provision of leave (forms No. T-6, T-6a), the second - on the termination of the employment contract (forms No. T-8, T-8a). In the second case, the organization has the right to establish a single form of order, which will include both actions at once. In both cases, the employee must be familiar with the orders under the signature.

Unified forms T-6 and T-8, templates

An example of a self-developed order form, template

Entry in the workbook

When making an entry in the work book, it is important to remember that the date of dismissal will be the last day of vacation - until this moment, the employee is still listed in the organization. But the entry itself must be made on the last day of the employee’s work, before the start of his vacation. Here's what the entry would look like in our example.

Settlement with an employee

According to the law, the employer is obliged to accrue and pay vacation pay within three days. You need to clearly understand at what point to make a settlement with the employee. All calculations, including the issuance of a work book and other necessary documents, must be carried out before the employee leaves for rest, since all obligations between the parties to the employment contract cease to be valid with its onset. This is confirmed by the letter of Rostrud dated December 24, 2007 No. 5277-6-1 and the Constitutional Court (determination dated January 25, 2007 No. 131-О-О).

Withdrawal of the application

If an employee leaves the organization on his own initiative, he has the right to withdraw the application. In this case, you need to remember that this can be done only before the start of the holiday (after all, after that, all labor relations will already be terminated). The second prerequisite is that another employee has not yet been invited to the vacant place in the order of transfer or a new one has not been hired (part 4 of article 127 of the Labor Code of the Russian Federation).

Can you quit while on vacation?

Art. 80 of the Labor Code of the Russian Federation allows for dismissal during a vacation of one's own free will. The prohibition in this case applies if the employee is dismissed at the initiative of the employer, and also applies to the period of illness. Having already taken a vacation, the employee has the right to quit of his own free will, while he is obliged to notify the employer no later than 14 days before leaving the organization by writing a letter of resignation, you can do this in person or send a document by mail. It must be remembered that the countdown of the two-week period does not start from the day the mail notification is sent, but from the day after the employer receives it. And if at the same time there are less than 14 vacation days left, then after the rest the employee will need to finalize the remaining days.

A resigning employee asked for a vacation. For this, he filed a proper application. What are the associated nuances of such a procedure?

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How is a vacation issued in 2019 with the further dismissal of an employee? Russian legislation provides for the right of an employee to receive leave before dismissal.

But the final decision to provide such is entirely the prerogative of the employer.

At the same time, unused vacation must be compensated. How is the leave preceding the dismissal processed in 2019?

Important Aspects

The labor law states that the employer has the right to give leave to the employee on the eve of dismissal.

The key word here is “right”, that is, there is no such obligation for the employer. But the employee himself has the legal right to leave.

Therefore, all unused vacation days must be adequately compensated.

Before the upcoming dismissal, any employee can ask for vacation. The boss decides whether to grant leave or not.

An important nuance is the vacation schedule. If the time required by the departing employee coincides with the approved vacation schedule, the employer does not have the right to refuse leave.

Not a coincidence with gives the right to refuse to grant leave, but her dismissal.

There is such a nuance as the continuation of labor relations, due to the refusal of the employee to dismiss. That is, the employee can change his mind about quitting and pick up the application.

In this case, the moment of return of the application is important. If the vacation has not started, the letter of resignation is canceled and the incident is considered settled.

If the employee changes his mind about leaving during the vacation, then his corresponding statement is not valid. In this situation, two options are possible.

In the first case, the record of dismissal in the labor is invalidated and canceled by the subsequent record.

In another option, the employee is hired again, but at the same time, an entry into the workforce is made only at the end of the vacation period.

Legal framework

Article 127 of the Labor Code of the Russian Federation contains a somewhat ambiguous interpretation of the term "leave with subsequent dismissal." It says here that the employer can give this type of leave.

That is, the decision to grant leave on the eve of dismissal is actually the prerogative of the employer.

It says that, at the written request of the employee, unspent leave can be provided by the employer until the upcoming dismissal "if possible."

It should also be noted that it is preferable for the employer to refuse leave. According to subparagraph 2 of paragraph 1 of article 238 of the Tax Code, compensation for vacation days upon dismissal is not subject to UST.

But the employer is obliged to calculate the social tax on vacation pay. It is also significant what date is counted as the day the legal relationship ends, if a vacation is issued with subsequent dismissal.

Article 127 of the Labor Code of the Russian Federation recognizes the last vacation day as the day of dismissal. It is this date that is indicated in the dismissal record performed in the work book.

But the actual legal relationship with the employee terminates on the last day of employment, which is the day before the start of the vacation.

At the time of termination of the employment relationship, the employer is obliged to make all final settlements with the dismissed employee.

This position is supported by the Letter of Rostrud No. 5277-6-1 dated 13/24/2007.

Provides for the extension of the sick leave period, but in the case of the upcoming dismissal, this rule does not apply (Rostrud Letter No. 5277-6-1).

But at the same time, the employer must pay the employee temporary disability benefits for sick days.

Process features

Vacation with further dismissal is an independent concept of labor legislation.

In fact, the process involves a dual maneuver on the part of the employee, which implies additional costs for the employer for registration and implementation.

Each of the constituent parts of the "vacation with dismissal" scheme requires careful adherence to the norms of the law.

Dismissal in itself is an event consisting of several parts. First, the employee submits a letter of resignation.

Then the dismissal process is formalized properly. In this case, the interests of any of the parties should not suffer.

The employee must receive the payments due to him, and the employer is obliged to perform the functions assigned to him in the process of dismissing the employee.

The first feature of the leave with further dismissal is the statement of the employee. But since two events are planned, it means that two applications are written, one for vacation, and the second for dismissal.

The first specifies the duration of the vacation and its starting date, the second specifies the desire to terminate the employment relationship.

But at the same time, the legislator does not limit the number of applications and two applications from an employee can be combined into one.

Upon receipt of an application from an employee, the employer issues an appropriate order.

He also has the right to choose whether to issue a single order or draw up a separate administrative document for each event.

In the first case, the form of the order is developed independently and provides for the execution of the entire process in full - registration of leave and further dismissal.

How to arrange vacation with subsequent dismissal

Step-by-step instructions for granting leave to an employee and his further dismissal look like this:

When to calculate compensation

The settlement stage becomes an inseparable part of the vacation + dismissal process.

Since dismissal occurs along with vacation, it is necessary to immediately calculate all types of payments - in connection with the upcoming vacation and the upcoming calculation.

The issued order for leave with dismissal becomes the basis for drawing up a note-calculation.

If an organization uses standard forms of documents, then two calculations are made:

In the final settlement with the dismissed employee, it is appropriate to take into account all amounts and compensation payable, both under the law and provided for by local regulations.

The entire amount of payments must be calculated before the start of the vacation, since all the due amounts must be received by the employee on the last day of work before the vacation.

Application writing template

Article 127 of the Labor Code states that, at the written request of the employee, a vacation is issued, while unspent vacation days can be provided with further dismissal.

It follows from this that the application is drawn up one. Although the lack of a clear wording allows you to submit two separate applications, for leave and subsequently for dismissal.

How to write an application for leave with subsequent dismissal? In order to avoid excessive bureaucracy, it is more expedient to draw up one document, setting out in it the whole essence of the situation at once.

An application is drawn up in an arbitrary form, taking into account the general rules for processing such documents.

The general scheme of the application for "vacation-dismissal" is as follows:

1. In the upper right corner, information is entered to whom the document is intended, name, organization, from whom the application is submitted, the applicant's data.
2. Below, in the center, the name of the document (Statement) is written.
3. The text is written approximately as follows: "I ask you to provide me with another vacation for _ days, followed by dismissal."
4. Date and signature is put.

Frequently asked Questions

At first glance, a vacation with further dismissal seems simple, it is enough to follow the formalities regarding registration. But there are some nuances of the procedure.

Video: vacation followed by dismissal

For example, how long can unused vacation be granted? Everything seems to be clear - how many vacation days are not used, so much is provided.

Vacation with further dismissal is granted for the full duration, that is, for the entire period prescribed by law.

But only those days of vacation are subject to actual payment, which would be compensated with money upon dismissal.

The remaining vacation days are provided to the employee as vacation at his own expense. The duration of the vacation is calculated from the fact that an employee who has worked a full year is entitled to a full vacation.

Do I need to work two weeks

In the event of a normal dismissal, the employee is required to notify the employer two weeks in advance, which are worked out in full, unless otherwise agreed.

The situation is somewhat different when it comes to leave. The start date of the vacation is determined based on the request of the employee or the possibility of the employer.

In this case, the final working day is the day before the start of the vacation, and the date of dismissal is the final day of the vacation.

Consequently, at the end of the vacation, the employee is recognized as dismissed, and he does not need to go to work to work out a two-week period.

An employer does not need to wait until the employee's leave ends to hire a new employee.

The next day after the employee goes on vacation with the upcoming dismissal, you can register a new employee.

This position is set out in the Ruling of the Constitutional Court of the Russian Federation No. 131 dated January 25, 2007 and the Letter of Rostrud No. 5227-6-1.

Entry in the workbook

Since the date of dismissal is the final day of vacation, this date is displayed in the work book. The reason for dismissal becomes the reason corresponding to the dismissal order.

If the order indicates “by agreement of the parties”, then it is written in the same way in the labor one.

By all means, the details of the corresponding order are given in the labor, if necessary, a link is given to the corresponding article of the Labor Code.

But although the entry in the labor contains a date corresponding to the final day of the vacation, the labor, among other documents, must be given to the employee on the last day of work.

The entry to the labor is entered on the day preceding the start of the vacation. The reason for termination of employment is indicated, but information about the grant of leave is not displayed in any way.

How many days does it take to write an application

An application for leave with further dismissal is submitted in accordance with the usual sequence of dismissal. That is, an application is submitted two weeks before the desired vacation.

But this fact can be disputed, since the legislation does not say anywhere about the timing of applying for vacation.

It was only noted that the employer must notify the employee two weeks in advance of the upcoming vacation according to the schedule, if there is such a schedule.

Thus, the employee has the right to apply for leave with dismissal at any time.

However, if the employee first went on vacation, and then decided to apply for dismissal, it should be submitted two weeks before the end of the vacation.

Do all employees have the right to leave with subsequent dismissal? How long can leave be granted? What are the features of its provision? In what order is such leave granted to the employee with whom it is concluded? What day is considered the day of dismissal? Is vacation extended by sick leave? When can an employer hire a new employee?

The employee decided to quit, but did not have time to take a vacation this year. In this situation, there are two scenarios for the development of events: he can receive compensation for unused vacation, or he can use his vacation before dismissal. By and large, there is not much difference for the employer, but when giving an employee a vacation with subsequent dismissal, you need to know some features, which we will discuss in this article.

According to Art. 127 of the Labor Code of the Russian Federation, upon the written application of the employee, unused vacations can be granted to him with subsequent dismissal. The first thing to note is that the employer is not obliged to provide the employee with such leave, but can provide it if he deems it necessary or meets the employee halfway. Therefore, even if the employee’s vacation is already approaching, for example, according to the schedule, it starts on August 15, and he asks for leave with subsequent dismissal from August 12, the employer is not obliged to satisfy such a request. In such situations, it is easier for an employee to go on vacation according to the schedule, and then write a letter of resignation.

And now let's move on to the features of granting leave with subsequent dismissal.

Vacation entitlement

Not every employee can exercise the right to leave with subsequent dismissal. So, in Art. 127 of the Labor Code of the Russian Federation establishes a restriction for those dismissed for guilty actions.

And here it is necessary to figure out what actions of employees are considered guilty.

note

Guilty is the action or inaction of the employee associated with non-performance or improper performance of labor duties, in which there is guilt in the form of intent or negligence.

The list of such actions is in Art. 81 of the Labor Code of the Russian Federation:

• repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction (clause 5, part 1);
• a single gross violation of labor duties by an employee (paragraph 6 of part 1):
• absenteeism;
• appearance at work in a state of alcoholic, narcotic or other toxic intoxication;
• disclosure of secrets protected by law, which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;
• committing at the place of work theft of someone else's property, embezzlement, its deliberate destruction or damage;
• violation of labor protection requirements;
• the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer (paragraph 7 of part 1);
• the employee's failure to take measures to prevent or resolve a conflict of interest to which he is a party (clause 7.1, part 1);
• commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8, part 1);
• making an unreasonable decision by the head of the organization (branch, representative office), his deputies or the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9, part 1);
• a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (clause 10, part 1);
• submission by the employee to the employer of false documents when concluding an employment contract (clause 11, part 1).

Thus, an employee dismissed for one of the listed reasons does not have the right to leave with subsequent dismissal.

Vacation duration

An employee can use not all vacation, but part of it, before dismissal, and receive monetary compensation for unused vacation.

Therefore, before dismissal, the employee and the employer must agree on how many vacation days can be used.

When calculating unused vacation days, the employer should take into account the length of service giving the right to vacation, and the number of vacation days already used by the employee for the previous and current years.

The right to an employee arises after six months of continuous work for this employer (Article 122 of the Labor Code of the Russian Federation).

However, the question may arise here of how long the rest the employer should provide to a person who has worked in the organization for six months.

On this occasion, Rostrud in Letter No. 5277-6-1 of December 24, 2007 (hereinafter referred to as Letter No. 5277-6-1) spoke as follows: since the Labor Code does not provide for the provision of incomplete annual paid leave, that is, in proportion to the time worked in a given working year , then full leave is provided (regardless of the time worked in the working year) - of the established duration.

When resting with subsequent dismissal, full-time leave is provided, however, in fact, only those days of it that would be subject to monetary compensation upon dismissal of the employee will be paid, since the leave to be replaced by monetary compensation upon dismissal is calculated based on the fact that full leave is due to the person who worked full year.

Not everyone agrees with this position. In this regard, we draw your attention to the fact that the opinion of Rostrud officials is not an official explanation and a regulatory legal act, and therefore is not subject to mandatory application.

Vacation for the conscript

First, we note that, by virtue of Art. 127 of the Labor Code of the Russian Federation during vacation with subsequent dismissal, the last day of vacation is considered the day of dismissal.

At the same time, such a vacation can be used even if a fixed-term employment contract was concluded with the employee and his term during the vacation ended.

note

According to part 3 of Art. 127 of the Labor Code of the Russian Federation upon dismissal due to the expiration of the employment contract, leave with subsequent dismissal can also be provided when the time of leave completely or partially goes beyond the term of the contract. In this case, the day of dismissal is also considered the last day of vacation.

And here we have to remember that by virtue of Part 1 of Art. 79 of the Labor Code of the Russian Federation, a fixed-term employment contract terminates with the expiration of its validity. The employee must be notified in writing of such termination of employment relations at least three calendar days before dismissal, except in cases where the contract concluded for the duration of the duties of the absent employee expires.

We add: according to Art. 58 of the Labor Code of the Russian Federation, if none of the parties demanded the termination of a fixed-term employment contract due to its expiration and the employee continues to work after that, the condition on the urgent nature of the contract becomes invalid and it is considered concluded for an indefinite period.

But two questions immediately arise: is it necessary to send a notice to the employee about the expiration of the employment contract and will the contract subsequently become indefinite if this is not done?

Judicial practice shows that in such cases such contracts are not recognized as open-ended. However, the employer can play it safe and notify the employee. Moreover, it is better to do this in advance - as soon as you receive an application from the employee asking for leave with subsequent dismissal.

Registration of dismissal

The specific procedure for granting leave with subsequent dismissal is not established by the Labor Code. Article 127 only states that such leave is granted on the basis of a written application by the employee and that the last day of leave is considered the day of dismissal.

And in Letter No. 5277-6-1, Rostrud noted that all settlements with the employee are made before going on vacation, since after its expiration the parties will no longer be bound by obligations. The same should be done with the work book and other work-related documents that the employer is obliged to provide to the employee - they must be given to him before going on vacation, on the last day of work. And in fact, labor relations are terminated from the moment the vacation begins.

Thus, the employer must first receive an application for leave from the employee, followed by dismissal. Many experts advise employees to write two applications: separately for leave with subsequent dismissal and separately for dismissal, in particular, when the employee quits of his own free will. We believe that one application is sufficient, only it must contain a request for leave with subsequent dismissal and indicate the reason for such dismissal.

Here are sample applications.

Director of MOU secondary school No. 25

I. I. Ivanov

from a math teacher

P. P. Petrova

Statement

I propose to terminate No. 03/12-TD dated 03.02.2012 on the basis of Art. 78 of the Labor Code of the Russian Federation by agreement of the parties on 09/05/2016.

I ask you to provide me with annual paid leave from 08/23/2016 for a duration of 14 calendar days, followed by dismissal. I ask you to specify the condition for granting me leave in the agreement on termination of the employment contract.

Petrov 30.07.2016

Director of MOU secondary school No. 25

I. I. Ivanov

from a math teacher

P. P. Petrova

Statement

I ask you to provide me with annual paid leave from August 23, 2016 for a duration of 14 calendar days, followed by dismissal of my own free will.

Petrov 30.07.2016

But as for orders, their employer must issue two:

• on granting leave according to the unified form T-6, approved by the Decree of the State Statistics Committee of the Russian Federation of 05.01.2004 No. 1;
• on dismissal under the unified form T-8.

The basis will be the same statement (if the employee has written more than two statements). It is necessary to familiarize the employee with the orders against signature; if he refuses to familiarize himself, an appropriate act is drawn up.

On the last day of work before vacation, the employee must be given all the necessary documents (including a work book) and all payments must be made. As regards the payment of vacation pay, special rules for vacation with subsequent dismissal have not been established; it remains to be guided by the general norms of the Labor Code. So, according to Art. 136 vacation pay must be made no later than three days before it starts.

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When granting leave with subsequent dismissal upon termination of the employment contract at the initiative of the employee, he has the right to withdraw his application for dismissal. But he can do this only until the day the vacation starts and if another employee is not invited to his place in the transfer order (part 4 of article 127 of the Labor Code of the Russian Federation). If the employee received "vacation pay", and then withdrew his application, then the employer, in accordance with Art. 137 of the Labor Code of the Russian Federation, before the end of the working year, on account of which the employee has already received annual paid leave, he has the right to make deductions from his salary to pay off his debt for unworked vacation days.

Upon receipt of a work book, an employee must sign in the book of accounting for the movement of work books and inserts in them (clause 41 of Decree of the Government of the Russian Federation dated April 16, 2003 No. 225 “On work books”). The record of termination of the employment contract is certified by the signature of the employee responsible for maintaining work books, the seal of the employer and the signature of the dismissed person.

An entry in the work book on the basis and reason for the termination of the employment contract must be made in strict accordance with the wording of the Labor Code of the Russian Federation or another federal law and with reference to an article, part of an article, paragraph of an article of the Labor Code of the Russian Federation or another federal law (part 5 of article 84.1 of the Labor Code RF). Do not forget that the day of dismissal will be the last day of vacation.

For example, if the grounds for dismissal were the agreement of the parties ( p. 1 h. 1 art. 77 Labor Code of the Russian Federation), the entry will look like this.

				Employment contract terminated	Order dated 01.08.2016
				by agreement of the parties, paragraph 1
				part one of Article 77 of the Labor Code
				Code of the Russian Federation.

The entry on the dismissal of the employee entered in the work book is repeated in his personal card.

An employee falls ill while on vacation

One of the situations that deserve attention when granting leave with subsequent dismissal is the illness of an employee during or after the leave. Employers often ask the question: should they at the same time accrue temporary disability benefits to the employee and is the vacation extended for the duration of illness?

There are no particular difficulties regarding the extension of the vacation. In contrast to the general rules established in Art. 124 of the Labor Code of the Russian Federation, leave for the number of days of illness is not extended. Such an explanation, in particular, is given in Letter No. 5277-6-1.

But with regard to the calculation of benefits, you first have to turn to Part 2 of Art. 5 of the Federal Law of December 29, 2006 No. 255-FZ "On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Maternity" (hereinafter - Law No. 255-FZ), according to which temporary disability benefits are paid to insured persons during the period of employment contract, performance of official or other activities, during which they are subject to compulsory social insurance in case of temporary disability and in connection with motherhood, as well as in cases where illness or injury occurred within 30 calendar days from the date of termination of the specified work or activity, or in the period from the date of conclusion of the employment contract to the date of its cancellation.

That is, the employer is obliged to accrue temporary disability benefits if the illness occurs within 30 days from the date of termination of work. In our case, the day of termination of work is actually the day before the start of the vacation. But is the countdown to start from this day? Someone counts from him, and someone - from the day of dismissal, that is, from the last day of vacation.

In Ruling of the Supreme Court of the Russian Federation No. 34-KG15-13 dated November 23, 2015, the judges noted that an employee who is in an employment relationship, by virtue of Art. 2 of Law No. 255-FZ for the entire period of his work until the day of termination of the employment contract is an insured person under compulsory social insurance in case of temporary disability. In part 2 of Art. 127 of the Labor Code of the Russian Federation states: when an employee is granted leave with subsequent dismissal, the last day of leave is considered the day of dismissal, which means that it is the day the employment relationship is terminated. That is, in relation to the provisions of Part 2 of Art. 5 of Law No. 255-FZ, the moment of termination of employment relations and the beginning of the 30-day period, during which the employer is obliged to pay the sick leave of the dismissed person, will be the last day of the employee's vacation.

The opinion of the employer that the calculation of the 30-day period during which the employee is entitled to receive temporary disability benefits from the insured at the last place of work (that is, the employer) begins on the day preceding the first day of vacation followed by dismissal, is erroneous, based on a misinterpretation and application of substantive law governing disputed relations.

Based on the findings of the court, it can be argued that 30 days must be counted from the last day of vacation. And if the employee no later than 6 months from the date of restoration of working capacity in accordance with Parts 1 and 3 of Art. 12 of Law No. 255-FZ applied for temporary disability benefits and the date of onset of the disease falls on the vacation period, we pay the benefit according to the general rules - based on the employee's length of service.

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If an employee falls ill during vacation (because the law does not provide for the preservation of average earnings on two grounds simultaneously (for vacation and for a period of incapacity for work) in case of illness), then the employer must recalculate the disability benefit that occurred during the vacation period with subsequent dismissal .

If the insured event occurred already at the end of the vacation, then we count 30 calendar days from his last day and, if the employee fell ill during this period, we pay “sick leave” in the amount of 60% of his average earnings (Article 7 of Law No. 255-FZ ).

Registering a new employee

Some disagreement also arises over the point at which a new employee can be invited to the place of the dismissed one - from the date of the last working day or from the day of dismissal?

Despite the fact that legally, labor relations end only on the last day of vacation, in fact, the employer and the employee are no longer connected by anything. He has already received all the documents, the work book and the calculation, and the parties do not have any obligations.

In addition, the right of the employee to withdraw his application for dismissal is also valid only before the start of the vacation.

In the Ruling of the Constitutional Court of the Russian Federation dated January 25, 2007 No. 131-O-O, it is noted on this occasion that the employer, in order to properly fulfill the obligation fixed by the Labor Code of the Russian Federation (in particular, Articles 84.1, 136 and 140) to formalize the dismissal and pay the dismissed person, must proceed from the fact that the last day of work is not the day of dismissal (the last day of vacation), but the day preceding the first day of the employee's vacation.

That is why the right to withdraw a letter of resignation of one's own free will, which is an additional guarantee of the employee's labor rights, can only be exercised by him until the final termination of work due to the use of vacation and subsequent dismissal.

Thus, the employer has the right to accept a newcomer to the place of the dismissed employee with holiday start dates dismissed.

Summing up what has been said, we will highlight the main stages of granting leave with subsequent dismissal and the features of each of them.

		Peculiarities
	Submission by the employee of an application for leave with subsequent dismissal	1. There is no obligation to satisfy the request of the employee. 2. Not all employees are eligible to apply. 3. The application is submitted in any form. At the same time, it is necessary to indicate that a vacation is selected with subsequent dismissal
	Holiday agreement	1. By agreement of the parties, a part of the vacation may be granted, and the rest of it compensated. 2. If a fixed-term employment contract was concluded, the term of which ended during the vacation, the day of dismissal will be the day the vacation ends
	Vacation registration	1. The employer issues two orders - on the provision of leave and on dismissal. 2. Vacation pay is paid 3 days before the start of the vacation. 3. Settlement with the employee and the issuance of a work book are made on the last day of work. 4. The day of dismissal is considered the last day of vacation
	Withdrawal of the application for dismissal	1. The employer is obliged to accept the application before the start of the vacation, if another employee is not invited to the place in the order of transfer. 2. The application is submitted only upon dismissal at the initiative of the employee
	Hiring a new employee	Employment can be issued after the start date of the vacation
	The employee brought a certificate of incapacity for work	1. Sick leave is not extended. 2. The employer calculates benefits if the sick leave was received within 6 months from the date of its closure, and the illness occurred within 30 days from the date of termination of work. 3. 30 days are counted from the date of dismissal, that is, from the last day of vacation

"On the refusal to accept for consideration the complaint of citizen Grudinina Irina Nikolaevna about the violation of her constitutional rights by part four of Article 127 of the Labor Code of the Russian Federation."