Vacation followed by dismissal in a year. Dismissal after a vacation of one's own free will

Going on vacation with subsequent dismissal on own will- this is the right of the employee, enshrined in the Labor Code. To have labor inspectorate there were no complaints, the personnel officer and accountant must follow the procedure in strict accordance with the requirements of the law.

Many people prefer to take the opportunity to take a break before looking for a new job instead of financial compensation for unused vacation days. However, leave with subsequent dismissal has a number of features. Let's look at these features, describe how to provide leave with subsequent dismissal, how to properly draw up documents. We will answer popular questions on this topic.

About leave with dismissal

He speaks of the possibility of taking a vacation with subsequent dismissal of his own free will. At the written request of the employee, unused vacations may be granted to him with subsequent dismissal.

The first important clause of the legal rule: the provision of rest is excluded if the employee is fired for guilty actions. Take due days before termination of the employment contract can only be a conscientious and disciplined employee. List of guilty actions for which it is impossible to use vacation days in return for compensation, - in article 81 of the Labor Code of the Russian Federation.

The second important caveat: characterizing the employee’s right to leave with subsequent dismissal, Article 127 of the Labor Code of the Russian Federation uses the wording “leaves can be granted”, which means that the employer is not at all obliged to provide the employee with rest before terminating the contract. The head of the organization retains the right to refuse even a conscientious employee and pay compensation in return for unused days. Or provide for rest only part of the prescribed period, and compensate for the rest of the time financially. Clarifications on this matter were given by Rostrud in Letter No. 5277 6-1 dated December 24, 2007.

It turns out that an employee can take a chance to rest before looking for a new job only by mutual agreement with the management.

Two ways to go on vacation before leaving

The first option: the employee leaves to rest according to a pre-approved schedule, having written a statement of his own free will before this or already being on vacation. At the same time, he can take time off both pre-planned days according to the schedule, and those days that he did not have time to use before.

The second option: the employee writes an application for rest at the same time as an application for dismissal of his own free will. In this case, the established schedule can not be followed.

The date of termination of the employment contract under Article 127 of the Labor Code of the Russian Federation is considered in any case the last day of rest.

But the management can accept a new employee in the place of a leaving employee immediately, without waiting for the rest to end.

Application and order for leave with subsequent dismissal, registration procedure

The employee usually makes 2 statements:

on leave with subsequent dismissal;
dismissal with reasons.

And the management draws up 2 orders:

on granting leave (based on the first application of the employee);
on termination of the employment contract (based on the second application).

It is also allowed to draw up one application from the employee: you can write an application for leave with subsequent dismissal of your own free will - this does not contradict the norms Labor Code of the Russian Federation.

But when using a unified form of documents, the employer still issues two orders, because the form of a single order has not been officially established. Order forms that can be used are documents of the form T-6 (T-6a) and T-8 (T-8a), recorded in the Decree of the State Statistics Committee of 01/05/2004 No. 1. The original is attached to one of them as a basis, and to the second - a copy of the employee's application. Forms of orders must be approved by the company's management as accounting documents.

The second option for management is not to use unified forms, but to develop an order form on your own. Then you can issue both actions in one order. The main thing is that it contains the required details of the primary accounting document.

Application for leave with subsequent dismissal, sample 2020

The work book is handed over to the employee on the last day before the rest, despite the fact that he will be fired on the last day of his vacation.

Example: Dudnikova I.N. takes 28 days of rest from 04/17/2018 and quits. She receives the work book and the calculation in her hands on April 16 - the last working day before leaving. She will be officially dismissed on 05/16/2018 - on the last day of rest. Please note that two more non-working days have been added to the main days holidays— 1 and 9 May. Holidays are extended due to holidays. This period is counted in the seniority of I.N. Dudnikova, which is reflected in the order and work book.

Order for leave with subsequent dismissal, sample 2020

A sample of a self-developed order form based on the example application above. An order drawn up in a similar form is issued once.

Important Aspects

AT labor law It says 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 also such a nuance as a continuation 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 ends on the last day labor activity, which is the day before the start of the holiday.

At the time of completion labor rights relations 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.

Any of constituent parts leave-with-dismissal schemes require careful adherence to legal norms.

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 made to free form when taking into account general rules execution of such documents.

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

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.
Below, in the center, the name of the document (Statement) is written.
The text is written approximately the following kind: "please give me another vacation for _ days followed by dismissal.
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.

In this case, the requirements of the legislator to notify the employer will be met.

Employees dismissed for guilty actions are not entitled to demand leave. However, they remain entitled to compensation.

Relatively conscientious employees the employer has the right to choose - leave with further dismissal or dismissal with compensation for unused leave.

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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 job 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-performance by an employee without good reasons job duties, if he has disciplinary action(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 acts by an employee directly servicing cash 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 work arises for the employee after six months of continuous work for this employer(Article 122 of the Labor Code of the Russian Federation).

However, here the question may arise 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 monetary compensation upon dismissal, is calculated on the basis that full leave is due to a person who has worked a full year.

Not everyone agrees with this position. In this regard, please note that the opinion of Rostrud officials is not an official explanation and normative legal act and therefore is not mandatory.

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.

Moreover, such leave can be used even if an urgent contract has been concluded with the employee. labor contract 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?

As shows arbitrage practice, 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 under the unified form T-6, approved by the Decree Goskomstat of the Russian Federation dated 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 Required documents(including the work book) and all payments have been 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.

note

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 before the day the vacation starts and if another employee is not invited to his place in the order of transfer (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, has the right to make deductions from his salary to pay off his debt for unworked days holidays.

Upon receipt of a work book, the 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 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 followed by dismissal is the illness of an employee during or after the leave. Employers often ask the question: do they have to 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, the performance of official or other activities, during which they are subject to mandatory 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 until the day 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 last day holidays.

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 general rules- based on the insurance experience of the employee.

note

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 disagreements also arise 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 day 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."

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

What is vacation followed by dismissal

Taking a vacation before quitting is possible only if the termination of the employment relationship occurs on one's 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 to pay compensation for unused vacation days. If the calculation is due to a violation of labor discipline or for other similar reasons, it is not allowed to take a vacation before dismissal by law.

Legal regulation

According to the Constitution of the Russian Federation, every person 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 spending 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 may be prescribed there, for example, additional vacation days, which you also need to use or receive compensation for them.

Realization of the right to rest upon dismissal

It is often possible to observe a situation when an employment contract is terminated with an employee, 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 guaranteeing the employee's labor rights. However, employers do not always advertise such an opportunity, but during the rest, the employee retains all rights:

he continues to follow workplace;
length of service is extended for the entire vacation period;
in case of health problems, a paid sick leave is due.

Grant of leave followed by dismissal

As noted, according to the law, before quitting, an employee has the right to take time off for the prescribed period of vacancy. As practice shows, this can be done in two ways. In the first case, the employee goes to rest according to a schedule drawn up and approved in advance, and he can write an application for resignation 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 to work out:

when enrolling as a student in a higher educational institution;
upon reaching retirement age;
moving to a new place of residence of the spouse;
if it is necessary to care for a child, a disabled person or a sick relative;
at the discretion of the leadership.

You can apply for leave at the same time as applying for leave. In this case, it is not necessary to adhere to the approved schedule. Sometimes they can be fired for other reasons, for example, the owner of the enterprise may change, 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 an application for leave with subsequent dismissal.

Compensation for unused

According to Russian legislation providing an employee with a vacation period with the opportunity to quit after its expiration is not an obligation of the employer, but a right. For this reason, the manager may provide compensation for the days unused by the employee. This option occurs when there is already a replacement for the place of the dismissed employee, since the employee has the right to withdraw the application for dismissal up to the last day preceding the rest.

How to arrange

In order to comply with all the formalities and correctly execute the documents, it is necessary to carry out a number of actions, some of which are performed by the person leaving, and some of them lie on the stoves of other employees of the organization. Here is an example algorithm of actions:

the employee submits a written application, depending on the dismissal procedure chosen by him;
the application is endorsed by the immediate supervisor and transferred to the personnel department;
after agreeing with management CEO) an order is issued to grant leave;
the document is registered, and the employee confirms with his signature that he has read it;
a settlement note is drawn up;
the employer signs the order to dismiss the employee;
this order is registered in the corresponding journal;
the dismissed employee is obliged to familiarize himself with the document, as evidenced by the signature of the employee;
issuing a settlement note;
full payment is made with the employee;
in a personal card and a work book, an entry is made about the dismissal;
a work book is handed to a person in his hands.

Vacation with subsequent dismissal of one's own free will is reflected in the time sheet using form No. T-12 or No. T-13 in the same way as standard vacation days:

main vacation period - code "OT" or "09";
additional - "OD" or "10";
holiday weekends - "B" or "26".

Sometimes an employee decides to withdraw the letter of resignation already during the holidays. With the consent of the management, this is possible, even though an entry in the work book has already been made. In this case, the entry is invalidated, and the dismissal is annulled.

Application for a vacancy

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 made. After submitting applications, a separate order is issued for each of them. The application form is in the following form:

Resignation letter

If you plan to take a vacation with further dismissal, the law allows the text of both statements to be combined into one. It indicates the start date of the holiday, the number of days and the reason for the break in labor relations is necessarily prescribed. An application is drawn up by the employee in any form and looks like this:

Order on granting leave with subsequent dismissal

The enterprise can develop its own form of an order to provide employees, followed by dismissal. If the organization follows unified forms, then you will have to draw up two orders: on the provision of leave and on dismissal, regardless of whether the employee wrote two separate statements, or executed one. An approximate sample of an order that can be developed at an enterprise looks like this:

How is vacation time calculated?

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

the length of service at the current place is calculated;
the number of vacation pay that is due to the person leaving for the entire period of work is determined;
the number of non-holiday days is calculated;
average daily earnings are calculated to calculate vacation pay;
payment is calculated.

How to determine dates

According to the 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 the application personnel worker;
registration of the application in the registration log;
execution of the order (s);
date of receipt of vacation pay;
date of final settlement;
the date of termination of the employment relationship, an entry made in the employee's work book.

Determination of work experience with the employer

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

Holidays include:

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

Holidays not counted:

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

Determination of due vacation days

According to the legislation, each employee has a 28-day vacation period per year. This is the minimum that the employer must provide. He can take these days at a time or break the entire vacation into parts. In addition, he always has the right to take a vacation at his own expense with subsequent dismissal. In some organizations, in addition to the legally established threshold, there may be accrued extra days, for example, for experience, harmfulness, for a contract, etc.

The procedure for calculating compensation for unused vacation

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

KNO = KNDO x SDZ, where

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