Compensation for time off after dismissal. Time off for overtime: how to provide it
Upon dismissal, money is paid for the period actually worked, as well as for vacation. But what about accumulated time off? The article discusses examples of calculating pay on a day off and gives recommendations on how to demand your rightful money from management.
What to do if you have unused weekends left
At enterprises, overtime work is compensated by providing additional days off (time off). In the case when an employee writes a letter of resignation, he may not have time to take all his days off. Upon termination of the employment relationship, unused days off are compensated.
But there are a lot of nuances: for example, in case of voluntary dismissal, payment of time off occurs only when this right has been documented for the employee. For example, an employee was forced to go to the office on a holiday. In this case, a document is drawn up indicating that this shift must be paid.
If the employee does not have documentary evidence, payment of unused time off depends only on the integrity of the employer.
Below are several options for the development of events.
Option 1. There were working days on weekends and holidays, but they were not recorded in any way. As mentioned earlier, in this case the employee cannot count on a guaranteed payment. That's why:
- you can just quit and forget about time off;
- You can first take unused days off and then write a letter of resignation.
In this case, you can advise the employee to be more attentive to his work in the future and at the next place of work to record all additional hours spent at work on the timesheet.
The entire amount should be paid to the employee on the day of dismissal, along with wages, as well as compensation for unused vacation and other payments.
Is time off paid for work on weekends and holidays according to the Labor Code of the Russian Federation upon dismissal?
According to Article 153 of the Labor Code of the Russian Federation, when working on holidays and weekends, an employee has the right:
- or double payment for the time worked;
- or for a one-time payment for time, but with the provision of additional days for vacation.
Moreover, if an employee chooses the second option, it does not matter how many hours he worked on a day off - he is provided with an additional day.
The employee can choose additional unpaid rest time or monetary compensation for the hours he overworked. The calculation is carried out using a coefficient of 1.5 for the first two hours of processing and 2.0 for the subsequent ones.
Overtime within the shift schedule is regulated by Art. 301 Labor Code of the Russian Federation. The employee has the right to count on a day of rest between shifts, which will be paid. regulates the absence of an employee from his workplace if he donated blood on that day. At the donor center, the employee is given a certificate stating that the donor has the right to pay for this working day, as well as paid time off the next day, which, at the donor’s request, can be attached to the main leave.
Since the beginning of 2012, the legislative concept of “time off” has been considered obsolete and removed from labor law. However, even today an additional day off, to which an employee of an organization has a legal right, is often subsumed under this concept. Is compensation due for such days off upon dismissal? How does payment work? How to protect your rights and receive compensation if the employer refuses to satisfy the request of the resigning employee?
How to use time off when leaving?
Dismissal, especially if it is dictated by the employee’s own desire, implies the performance of his duties for another two weeks. This period is called working off. However, there are legal ways to circumvent these norms outlined by labor legislation, for example, you can write a letter of resignation while on sick leave or on vacation, arguing this with your own desire. Also, for these purposes, you can use the right to take unused time off upon dismissal.
It is important to understand that the concept itself implies an additional day off, which the employee has the right to designate as a date independently. In this case, agreement with the boss/employer is a prerequisite, otherwise the work report sheet, which is responsible for recording working hours, can indicate absenteeism and dismiss the employee not at his own request, but under the relevant article. To avoid this kind of trouble, it would be correct to write an application for the weekend to work off, similar to unused vacation.
Compensation for time off upon dismissal
Compensation for time off for work on weekends and holidays according to the Labor Code of the Russian Federation upon dismissal is not provided. The said bill only mentions unused vacation, to which such days have no relation by law.
Payment in this option is the good will of the employer, which he can either demonstrate or refuse to fulfill. But there are a number of nuances, for example, for work on such days, an employee can receive payment of double the daily salary, or write an application for unscheduled rest. In this option, the employer when an employee leaves the enterprise, especially if it is dictated by his own desire, is obliged to pay for such days, but again on the condition that the enterprise maintains appropriate records.
Are time off paid upon dismissal?
The final verdict of the employer, and more specifically whether time off will be paid upon dismissal, is influenced by several factors:
- Origin;
- Availability of documentation: employee statement, management order, etc.;
- The employee’s desire to receive payment in cash for additional days off.
To be able to protect your interests and competently fend off the arguments of an unscrupulous employer, you need to be legally savvy. Since this situation has a number of nuances, knowledge of which in many cases allows the employer to reduce costs.
Paid time off upon voluntary dismissal
If time off overtime or overtime is not documented in an organization, an employee can either take them off or forget about their presence, since the Labor Code of the Russian Federation does not regulate these issues in any way. If everything was done correctly from the very beginning, then in order to avoid potential litigation, the employer can compensate for unused time off of his own free will.
Only time off for donation is subject to mandatory payment. , such employees are required to provide both additional rest and proper pay. If the employee wants to receive payment for this time, the employer is obliged to agree to his conditions.
If an employee voluntarily refuses to rest and insists on payment, then the employer will be helped to make the right decision by realizing that if the employee refuses to satisfy his demands, he can go to court, which will entail even greater costs for the organization.
Paid time off for work on weekends upon dismissal
Working on weekends and holidays means increased pay for this time, or accrual of rest days. If the appearance of days off was preceded by duty, then the employer is highly likely to refuse compensation if the employee leaves work of his own free will.
In case of a positive response from the employer, posting and calculation should be made according to the following algorithm: employee statement indicating the deadline, order for payment of compensation, accounting entry of payment. Calculation and payments must be made in the same way as the next vacation.
Paying an employee upon dismissal requires special attention from the accountant, since errors can lead to unwanted litigation and administrative penalties.
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When calculating the amount of the final payment due to the employee at the time of dismissal, the question may arise about compensation for time off that he is entitled to, but did not use.
What does the law say?
The main legislative act regulating the relationship between employer and employee is the Labor Code (LC RF).
It lacks both the term “time off” and the employer’s direct obligation to provide it or compensate it in cash.
Most often, time off means additional rest time, which is compensated to the employee in cases established by the legislation of the Russian Federation:
| Conditions implying worker compensation | Compensation procedure | Rationale |
| Working outside the employee's assigned hours (overtime) |
At the employee's choice:
|
Art. 152 |
| and non-working days | At the employee's choice:
|
Art. 153 |
| Overtime within the shift schedule | Paid day of rest between shifts (in the amount of one day's earnings) | Art. 301 |
| Donation | The days of examination, blood donation and the next day are paid (in the amount of one day's earnings). In certain cases, these days may be moved to another calendar period. | Art. 186 |
| Employees are on duty after work, on weekends and non-working days | Unpaid additional rest time, the duration of which is equal to the time on duty. If time off is not used within 10 days of duty, it is forfeited. | Resolution of the Secretariat of the All-Union Central Council of Trade Unions dated April 2, 1954 No. 233 “On duty at enterprises and institutions” |
It is the responsibility of the enterprise to ensure proper accounting of accrued and used time off.
How are time off provided upon dismissal?
What to do with time off upon dismissal depends on several conditions:
- Does the enterprise properly register and record the time off that employees are entitled to?
- For what reason did the employee take time off?
- Does the employee want to use the vacation days due to him before dismissal or insists on monetary compensation for them.
Taking into account the above conditions, we will consider the options that the employer has regarding time off for a resigning employee.
Option 1:
If the facts of overtime or work on weekends are not reflected in the enterprise’s documentation (there are no orders or marks), then you can offer the employee:
- use time off and quit;
- just forget about them.
What offer will be made to the resigning employee will depend on the decency and personal attitude of the manager towards him.
Option 2:
The additional time worked is properly documented and the employee does not mind using his time off before dismissal.
This will also be an ideal option for the enterprise, since it will not require additional financial costs from it (except for settlements with donors and shift workers) and will protect against potential litigation.
Option 3:
The employee’s right to time off has documentary evidence, but he wants to quit without using them, receiving monetary compensation in return.
This happens when the employee’s priority is a new job, which he wants to start after working the mandatory 14 days or even faster (by agreement with the employer).
What should an accountant do: pay or not?
This situation does not have clear legislative regulation. The opinions of legal consultants also vary.
But making the right decision can be influenced by knowing that:
- for overtime work and on non-working days, remuneration is required at increased rates;
- for failure to comply with labor laws, you may be subject to fines from inspection authorities;
- If an employee goes to court, you can lose a lot of time and effort and still be forced to pay compensation for unused time off.
After all, if an employee previously wrote a statement that he wanted to receive additional days or hours of rest, but did not use them, then by refusing him monetary compensation, one may become guilty of violating the law.
In essence, the employee is deprived of the right to legal compensation for his labor, since he simply did not have time to use this right due to.
Comparing the requirements of Art. 84.1 and art. 140 of the Labor Code of the Russian Federation on full payment to the employee on the day of dismissal with the norms of Art. 152 and Art. 153 of the Labor Code of the Russian Federation on the procedure for compensation for work in special cases, it is reasonable to conclude that it is safer to pay the employee compensation for unused time off.
However, this does not apply to time off for duty, which is not subject to payment.
Let's look at an example of paying time off upon dismissal.
Situation 1:
The employee worked 8 hours overtime in October (4 hours on 10/09/2015, 3 hours on 10/19/2015 and 1 hour on 10/30/2015). In his application, he expressed a desire to receive additional rest in December. But he quits on December 7, 2015, without using his days off. The average hourly salary of an employee is 160 rubles.
Calculation:
Note: For the first 2 hours of work, the hourly rate should be multiplied by 1.5, and the remaining hours of work - by 2.0.
- Compensation for 10/09/2015: (2 hours * 160 rubles * 1.5) + (2 hours * 160 rubles * 2) = 1,120 rubles
- Compensation for October 19, 2015: (2 hours * 160 rubles * 1.5) + (1 hour * 160 rubles * 2) = 800 rubles
- Compensation for October 30, 2015: 1 hour * 160 rubles * 1.5 = 240 rubles
Total amount of accrued compensation: 2,160 rubles
Situation 2:
In October, an employee worked on a day off (10/25/2015) for 7 hours. I wrote an application to pay him a one-time payment for his work in October and to give him an additional day off in December. But he quits on December 7, 2015, without taking advantage of his time off. The average hourly salary of an employee is 150 rubles.
Calculation:
Note: since the employee received a one-time payment in November, in December a one-time compensation will be accrued for the hours actually worked. In total, the employee will receive double pay.
Compensation for October 25, 2015: 7 hours * 150 rubles = 1,050 rubles
Features of processing compensation for time off upon dismissal
To pay compensation, the following documents are drawn up:
- an employee’s application for the accrual and payment of monetary compensation for unused additional rest time;
- order from the manager on the accrual and payment of amounts due to the employee;
- accounting certificate - calculation of compensation amounts for time off.
Application example:
Example of an application for compensation An example of an order from an organization:
Sample order The accrued amounts must be paid to the employee on the day of dismissal along with salary, travel allowances and other payments.
So, we can conclude that the absence in Russia of clear legislative regulation of the procedure for providing and monetary compensation for remaining time off leaves the management of the enterprise with a choice: either act “in good conscience” and pay time off to the resigning employee or refuse payment, preparing arguments for a possible trial.
The calmest and most legal way is to convince the employee to use the time off he is entitled to and then quit.
M.G. Moshkovich, lawyer
Time off for overtime: how to provide it
In certain cases, the Labor Code allows for the provision of additional days of rest to the employee, in common parlance - time off. However, the procedure for their use is not regulated in any way, and therefore time off work sometimes accumulates in large quantities. Let's consider whether this is legal and what to do with time off upon dismissal.
Where do the extra days off come from?
Work on a day off or a non-working holiday is paid at the employee's discretion. Art. 153 Civil Code of the Russian Federation:
- <или>no less than double the amount;
- <или>in a single rate with the provision of an additional day of rest. Moreover, it is impossible to force an employee to take additional rest instead of increased pay; this is a voluntary matter.
Additional days off cannot be provided to employees who have entered into an employment contract for up to 2 months. For them, there is only one form of compensation for working on a day off (holiday) - monetary Art. 290 Labor Code of the Russian Federation.
The employee has the right to ask for additional rest time and instead of increased pay for overtime work Art. 152 Labor Code of the Russian Federation. In this case, he is provided with additional hours of rest (but not less than the time worked overtime). Next, we will consider providing time off for working on weekends, keeping in mind time off for overtime work.
How to formalize an employee’s desire to get a day off
The Labor Code does not regulate exactly how an employee should express his desire to take time off, leaving this issue to the discretion of the parties to the employment contract. Therefore, the issue is often resolved through a verbal agreement. But it’s better to ask the employee to write a statement asking for time off for overtime. The application must be completed in the month when he worked on his day off; a specific date for the day off may not be specified.
The fact is that work on a day off is payable on the next salary payment date. Articles 135, 136 of the Labor Code of the Russian Federation. The employer has the right not to accrue increased pay to the employee only if the employee chooses to take a vacation. But a wish expressed orally cannot be proven if a dispute suddenly arises.
Therefore, if, in the absence of written confirmation of the employee’s desire to take time off, you do not pay an increased amount for work on the day off on the next payday, you will violate the Labor Code. In the event of an inspection, you may be required to pay overtime with interest for the delay for all days of delay until the day of actual payment. Art. 236 Labor Code of the Russian Federation and fine Art. 5.27 Code of Administrative Offenses of the Russian Federation.
In practice, the choice of compensation (double pay or rest) is often made at the stage of agreeing with the employee on going to work on a day off. For example, a special line is provided in the notification form for being required to work on a day off, in which the employee can indicate the form of compensation and determine the desired date of the day off. In this case, the type of compensation is immediately recorded in the order for employment on a day off.
ORDER
Involve Anatoly Petrovich Sergienko, guard of the Warehouse unit, to work on the day off 03/21/2015. As compensation for working on a day off, provide him with an additional day of rest on Monday, March 23, 2015.
Reason: notification to A.P. Sergienko dated 03/19/2015.
If the choice is not fixed in advance, then you need to invite the employee to write a separate statement after he has completed such work. If the employee immediately indicates the date, a separate order is issued only to grant time off.
ORDER
Provide Anatoly Petrovich Sergienko, guard of the Warehouse unit, with an additional day of rest on March 27, 2015 for working on the day off on March 21, 2015.
Reason: statement by A.P. Sergienko dated 03/23/2015.
Difficulties may arise if an employee requests time off but does not specify a date. On the one hand, this does not contradict the law, because the terms for using time off are not established in the Labor Code. An employee can take an additional day off both in the current month and in subsequent months. section 5 Recommendations of Rostrud, approved. protocol No. 1 of 06/02/2014. On the other hand, this practice sometimes leads to the accumulation of large amounts of time off. Therefore, it is better to determine the procedure for using additional days off in the internal labor regulations or in other local regulations of your organization.
FROM AUTHENTIC SOURCES
Deputy Head of the Federal Service for Labor and Employment
“The procedure for providing additional rest time in exchange for increased wages may be provided for by the employer’s local regulations. In particular, you can determine the timing of submitting an application for time off, the timing of using the time off, the procedure in case of dismissal before use, and so on.”
What to do if an employee quits without taking time off
The Labor Code says nothing about the fate of unused time off upon dismissal. So, if at the time of dismissal the employee has unused vacation days, then he is paid monetary compensation or given vacation with subsequent dismissal. Art. 127 Labor Code of the Russian Federation. But there is no such rule regarding time off. Therefore, employers sometimes deny an employee some form of compensation, especially if there is a lot of time off.
However, this is wrong. After all, the Labor Code in any case obliges the organization to pay for work on a day off (holiday) at an increased rate. And this obligation is not canceled due to the dismissal of an employee. Consequently, if providing time off becomes impossible, then compensation must be paid in cash; there is no third option. A representative of Rostrud expressed a similar opinion.
FROM AUTHENTIC SOURCES
“If it is impossible to use additional days of rest before dismissal, upon dismissal, the employee must make increased payment for all cases of overtime work and work on a day off (holiday) without limitation on their quantities.”
Rostrud
It seems that, by agreement with the employee, it is also possible to provide him with the required time off before dismissal. If there has already been an order regarding them, then such a statement will be required from the employee.
STATEMENT
I ask you to provide me with an additional day of rest for work on 03/21/2015 on a day off not on 04/24/2015, as I asked earlier, but on 04/10/2015, due to the fact that I quit on 04/24/2015.
A.P. Sergienko
But it is not always possible to use additional days off: for example, the usual working period for voluntary dismissal is 2 weeks, and time off sometimes accumulates for a whole vacation or even more.
WE TELL THE EMPLOYEE
If an employee asks for overtime time off, not payment It's better not to save up there are a lot of them. In the event of a sudden dismissal, he will not be able to use them, and not all employers are ready to pay the money.
If an employee is not paid upon dismissal, he will have the right to demand increased payment in court. Note that the existing practice is heterogeneous due to the fact that different judges have different calculations of the three-month period during which the employee has the right to go to court in such cases x Art. 392 Labor Code of the Russian Federation.
Thus, in the situation considered by the Supreme Court of Buryatia, the organization practiced only one form of compensation for overtime - time off. As one might assume, the employees did not write statements about their choice. The court decided that in this case, the employer’s obligation to pay for overtime (if time off is not used) arises on the day of dismissal, and 3 months must be counted from this date. Since the dismissed woman went to court within this period, the decision was made in her favor. She was awarded compensation for overtime and weekend work in September - October 2010, despite the fact that she quit her job in January 2011. Cassation ruling of the Supreme Court of the Republic of Buryatia dated July 11, 2011 No. 33-2157
But in the Khanty-Mansiysk Autonomous Okrug, the judges reasoned as follows: he will find out that the employee’s rights have been violated when he receives his salary for the month in which he worked on a day off (since he did not receive any pay or time off and did not write any statements) . Therefore, you need to count 3 months from this date. But the employee went to court only after dismissal and missed this deadline. Therefore, he was denied compensation and Appeal ruling of the court of Khanty-Mansi Autonomous Okrug - Ugra dated October 29, 2013 No. 33-4652/2013.
To learn how payslips affect the calculation of the three-month period for labor disputes, read:With the second approach, the organization has a chance to win, especially if it issues pay slips to employees with each paycheck.
Explain to those who like to hoard time off that it is better to use them within a reasonable time frame so as not to create problems upon dismissal. Then management will not be tempted to deprive workers of deserved compensation.
Is the employer obliged to pay for the provided time off for an employee’s work on weekends and holidays when dismissing the employee at his own request, if the employer keeps official records of time off?
No, I don't have to. Additional days of rest provided to an employee for working on weekends or non-working holidays are not subject to payment. In addition, the current legislation also does not provide for compensation to an employee for unused additional days of rest for work on weekends or non-working holidays upon his dismissal.
According to Part 3 of Art. 153 of the Labor Code of the Russian Federation, at the request of an employee who worked on a day off or a non-working holiday, he may be given another day of rest. In this case, work on a weekend or a non-working holiday is paid in a single amount, and a day of rest is not subject to payment.
Information portal of Rostrud “Online inspection.RF”, October 2016
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Time off upon dismissal at your own request
The chief accountant is going to write a letter of resignation of his own free will on December 31st. In 2015, people go to work on the 12th. Accordingly, out of the allotted period of 14 days, she still has 3 “working” days left. In order not to go to work, the chief accountant is going to take “time off” these days for overtime this year. Does she have the right to do this? Or is it our good will to give her these 3 days, and not compensate them with money during the final settlement as compensation for unused vacation?
Article 152 of the Labor Code of the Russian Federation:
Overtime work is paid for the first two hours of work at least one and a half times the rate, for subsequent hours - at least twice the rate. Specific amounts of payment for overtime work may be determined by a collective agreement, local regulations or an employment contract. At the request of the employee, overtime work, instead of increased pay, can be compensated by providing additional rest time, but not less than the time worked overtime.
The key phrase, as you can see, is “at will.”
To avoid any misunderstandings regarding the concepts of “overtime” and “overtime”:
Overtime work is work performed by an employee at the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of cumulative accounting of working hours - in excess of the normal number of working hours during the accounting period.
The latter is recycling.
We are writing a letter of resignation of our own free will.
Have you decided to quit voluntarily, but don’t want to work for two weeks? Or, on the contrary, have you already informed management about your decision, but changed your mind about quitting? Let's talk about the intricacies of terminating an employment contract at the initiative of the employee. We will also advise the employee on how to correctly write a resignation letter.
The following situation prompted me to write this article: recently, one boss forced her employee to write a letter of resignation of her own free will. Moreover, in this situation it was not necessary to work for two weeks. Under the threat of dismissal under the article, this employee wrote the required paper, but, on reflection, decided not to give up so easily. Before recalling him, she decided to carefully study the theory and figure out how to write a letter of resignation and how to fight for her rights, if in fact there was no such desire. So, let's start in order.
Work for two weeks
An employee who decides to terminate an employment contract must notify the employer about this no later than two weeks in advance (Part 3, Article 80 of the Labor Code of the Russian Federation). This period begins from the day following the day when the employer received the relevant application from the employee. The basic formula is “Please fire me of your own free will.” Below is the resignation form:
An example of a resignation letter can be downloaded and used by adding your data.
When asked whether it is necessary to comply with the warning period or not, the Labor Code of the Russian Federation answers:
By agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal.
That is, to reduce the warning period, an agreement between the parties is required. There are situations when such consent is not required and the employee has the right to terminate the employment relationship within the period specified in his application:
In all these situations, the employer is obliged to terminate the employment contract within the period specified by the employee.
In order to simplify paperwork, you can prepare a sample resignation letter for employees or create a folder on the corporate server containing a set of samples of personnel documentation, including a sample of how to write a resignation letter of your own free will.
Related materials
How to properly arrange vacation followed by dismissal
An employee has the right (it is not a fact that this right will be exercised by the employer) to go on paid leave before resigning. Article 127 of the Labor Code of the Russian Federation states that an employer can provide leave at the request of an employee before his departure. The legislation does not clearly regulate this issue, so an employee can write either one or two applications (meaning for dismissal and for the upcoming vacation). There are no clear recommendations in this case; be guided by the document flow procedure adopted in your organization. The text might sound like this:
Please provide me with annual paid leave followed by dismissal.
Regardless of the number of applications, the day of termination of the contract, if the employer nevertheless decides to comply with this request for leave, will be considered the last day of paid rest. If the employer does not want to let the employee go on vacation, he will be obliged to pay monetary compensation for all unused vacation days.
Calculation upon dismissal: how much and when to pay
The company is obliged to pay all compensation, vacation pay and wages to the employee on the last day of his work. If on the day of termination of the contract the employer has not made a full payment, he is obliged to compensate the leaving employee for his error in the amount of not less than 1/150 of the current Central Bank key rate of the amounts not paid on time for each day of delay, starting from the next day after the due date payments up to and including the day of actual payment and issuance of the completed work book.
If, before terminating the contract, the employee first goes on vacation, then the calculation and issuance of all documents must be made before the vacation. If for some reason they do not give you your work book, this is a serious violation of the law. According to Article 234 of the Labor Code of the Russian Federation, in the event of a delay in issuing a work book on the day of dismissal due to the fault of the employer, he must compensate the employee for material damage in the form of lost earnings for the entire delay, if the absence of a work book prevented the employee from getting a new job. Moreover, the day of termination of the contract in this case will be considered not the day indicated in the application, labor or order, but the day of the actual issuance of the work book (clause 35 of the Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books” ).
As the Labor Code states in this case, voluntary dismissal on a new date is formalized by order, and an entry is also made in the work book. A previously made entry about the day of dismissal is considered invalid. In order to carry out all these actions, you need to contact your former employer with a written application to issue you a delayed work book, compensation for lost earnings and to change the dismissal entry in the work book on the date of its actual issue.
If the employer refuses to voluntarily comply with your demands, you need to go to court. But remember that this can only be done within a month from the day you were fired (Article 392 of the Labor Code of the Russian Federation). If a month has already passed, then it is better that there are good reasons for the delay. And although the court does not have the right to refuse to accept a claim on the grounds of missing the deadline, but if the defendant, that is, the employer, declares this, the court can lose (unless the court decides to restore the limitation period). So keep an eye on the time or stock up on good reasons.
The employer's responsibility for storing the work record book of a former employee at work is excluded if two conditions are met:
- The employee did not show up for her on the day of dismissal.
- The employer sent the employee a notice of the need to appear for a work book or agree to have it sent by mail.
The procedure for dismissal at will
Within two weeks of “working out”, the employee’s decision to leave of his own free will can be annulled. After all, he has the right to withdraw his application (Article 80 of the Labor Code of the Russian Federation). If the employee goes on vacation before this, he can revoke the document before the start date of the vacation. And if another employee has not yet been invited to this place, who, in accordance with the law, cannot be denied a contract, nothing can prevent the employee from returning.
The Labor Code of the Russian Federation stipulates that another employee must be invited in writing. That is, the employer’s unfounded statement “And I already hired another, because you were fired of your own free will” will not work here. There must be written proof.
In order to withdraw the first application, you need to write a second one. If your employer refuses you, ask him for a written refusal indicating the reasons.
If you were forced to write “of your own free will” and are not going to negotiate, in this case the next stage is filing a claim in court. If you are not the only one in the organization with a forced departure “on your own,” invite all the “offended” as witnesses. Nowadays, courts in such disputes between employees and employers most often take the side of the former. And if the trial is won, the loser will be obliged to reinstate you at work and pay wages for the entire time while this issue was being resolved.
We continue to work
But let’s say two weeks have passed, you decided to cancel your dismissal from work, and your bosses are in no hurry to pay and return the documents. The Labor Code of the Russian Federation provides that if after two weeks the employment contract is not terminated and the employee does not insist, then the statement “at his own request” loses legal force and the employee is not considered dismissed.
End of story
How did the story with which we began the article end? As expected, the employee was not allowed to withdraw the application, and no evidence was provided of the invitation of another employee. Knowing how events would develop, she recorded the entire conversation with her boss on a dictaphone, where a phrase appeared that proved that the paper “of her own free will” was written under pressure. Now this employee is filing a lawsuit and has already found witnesses who were also forced under pressure to leave this organization of their own free will. With such evidence, she has every chance of winning this case.
We hope the article answered the question of how to correctly write a resignation letter. A voluntary resignation letter template will help you avoid mistakes in drawing up this important document.
Legal Aid Center We provide free legal assistance to the population
Time off upon dismissal - compensation for time off
During dismissal, compensation is paid to the employee. The employer is obliged to pay money for the period actually worked, as well as for unused vacation. These two payments are found everywhere, but there are also those that arise only in certain situations. This also includes the situation with payment of accumulated time off.
At many enterprises, work on weekends or beyond the norm is compensated by providing time off. And a large number of workers quit before they have used up the accumulated time. These unused days upon termination of the employment relationship must be compensated to the ex-employee. And although this issue is not clearly regulated by the Labor Code of the Russian Federation, in order to avoid problems with the labor inspectorate, it is recommended to pay the funds in the same way as it should have happened if additional vacation days had not been provided.
Are time off paid upon dismissal?
It is possible to pay for time off upon dismissal at one's own request only if the basis for its occurrence has been documented. For example, if a person worked a holiday, and there is an order according to which this shift was paid in a one-time amount and an additional day of rest was provided, then the unused time will have to be paid.
If there is no documentary evidence, then everything will depend on the integrity of the manager. The employee will definitely not have to count on payment, but the employer may allow the employer to take the days off required by law.
Dismissal with time off
Among the duties of employees is a 14-day work period if they leave the company of their own free will. Many of them take unused vacation time for this period. Also, this opportunity is relevant not only if there is a duty to work off. Vacation followed by dismissal is a fairly common procedure. For it, according to Article 127 of the Labor Code of the Russian Federation, it is necessary that the following conditions be met:
- a correctly written and submitted application by the employee;
- coincidence of vacation time with the approved schedule;
- The reason for dismissal is the employee’s non-culpable actions.
There is no need to submit two applications - to quit and to go on vacation. One contact to the employer indicating both requests is sufficient. The employer himself must issue two orders and properly fill out the work book of the dismissed person.
Time off for work on weekends and holidays according to the Labor Code of the Russian Federation upon dismissal
Issues related to labor during weekends and holidays are regulated by Article 153 of the Labor Code of the Russian Federation. According to its content, the employee should be given two scenarios to choose from:
In the second case, the length of time the employee worked does not matter - he must be given a full day of rest. If these days turn out to be unused, then the calculation is carried out in accordance with the rule of double payment. Since the time worked has already been paid in a one-time amount, upon termination of the contract (dismissal), an additional amount of the same amount will be paid.
Calculation of time off upon dismissal
All unused time off upon termination that is officially documented must be paid in accordance with what it was awarded for. For example, if an additional day of rest is available to an employee for overtime work, then Article 152 becomes relevant. Labor Code of the Russian Federation. It says that the tariff rate for the starting two hours above the norm is multiplied by 1.5, and for the rest of the time by 2.
In the case of working on weekends, the actual time can be immediately multiplied by two. Therefore, you need to carry out your own calculation for each individual bonus day. The simplest option is a non-financial calculation. Subject to an agreement between the employee and the employer, the former can simply take the accumulated number of days off before officially resigning.
Application for leave with subsequent dismissal
Below is a sample application for leave with subsequent termination of the employment relationship. If the employee has accumulated unused unpaid days, then the application is drawn up in a similar way. It is submitted to the name of the employer and the text indicates the desire to take the required days off and quit immediately after that. At the end there is a date and signature.
Is time off paid upon dismissal? Should we take them into account?
The employee wrote a letter of resignation on October 11, 2013. She has 8 days off left, should we take them into account when calculating in the dismissal order when we write the days of payment for unused vacation?
Lawyers' answers (1)
Labor legislation does not contain the concept of “time off”, so you need to decide what is meant by this in your case.
If we are talking about the unused part of the vacation, then in accordance with Part 1 of Article 127 of the Labor Code of the Russian Federation, the employee must be paid compensation for these 8 days.
If an employee was recalled from vacation without the appropriate formalization of the recall and no recalculation was made to him in connection with this, then:
1) you need to recalculate and pay compensation for the 8 remaining days upon dismissal
2) when dismissing, do not take into account the remaining 8 “time off days” - this is easier, but for the employer there is a risk that during an inspection or following a complaint from an employee, a formal violation will be discovered.
If an employee was involved in work on a day off and was promised “time off” at a time convenient for him, then:
1) if the return to work was formalized in writing, the best option would be to give the opportunity to take these additional days off before dismissal; they are not subject to payment in accordance with Art. 153 Labor Code of the Russian Federation
2) if going to work on a day off was not formalized, then it is possible to issue an order providing for increased payment for work on weekends, or providing for additional days of rest at any time at the discretion of the employee, which are not subject to payment and which must be provided again better before the employee is fired.
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