Is the day of dismissal considered the last working day?

Is the date of dismissal considered a working day?

Naturally, the main guide in resolving this issue will be the Labor Code of the Russian Federation. Thus, following the instructions of Article 80 of the Labor Code of the Russian Federation , a working citizen has the right to terminate his employment contract by notifying the employer in writing at least two weeks before leaving his place of work. When this period comes to an end, the citizen can stop his work activity and receive a payment from the employer.

It is also possible to dismiss an employee before the deadline specified in the written warning. However, this is only possible with the consent of the management and the employee. The bosses and the working citizen can make a joint decision regarding a specific dismissal date suitable for both parties.

In special situations, the employer is able to terminate the employment contract on the day indicated by the employee in the application. This should include circumstances such as the inability to continue working in detail in the future for various reasons. For example, this could be admission to a college, school or university as a full-time student, due to moving to a new place of residence, retirement, etc.

Important nuances when dismissing

• According to Article 84.1 of the Labor Code of the Russian Federation , when deciding to terminate an employment contract, the employee ends his work at the enterprise on the date of termination of the contract. This day will be your last working day. One exception to this rule is the case when the employee, although his place of work was officially protected, was not there.
• Following Article 14 of the Labor Code of the Russian Federation , the date of the required official warning to the employer about dismissal is considered to be the next day immediately after this application was submitted. That is, the report of the agreed two weeks will be counted from this date. So, if the letter was submitted to the manager on April 2, then the 14-day countdown will begin on April 3.

Download Labor Code of the Russian Federation (LC RF) N 197-FZ, edition dated 02/05/2018 (.pdf)

• It is important to note that if the last day of work falls on a weekend on the calendar, it is skipped. Then the official working day of your last stay at the workplace will be, for example, the Monday after the weekend. Or the very first working day after the end of the holidays.
• If an employee applies for leave with subsequent dismissal, then the last day in the company will be the same date as the very last day of leave. The described situation is permissible only when an employee is dismissed at his own request, but not at the intention of his superiors.
• On the last working day, the boss must provide his resigning employee with all documentation related to his activities in this organization. In addition, upon a written application from a working citizen, the final settlement with him is made at the enterprise.
• Also, on the last day of work, the enterprise’s accounting department must not only calculate the payments and compensation due to the employee (salary, compensation for unspent vacation and other similar payments), return the work book, but also transfer tax on the employee’s income to the budget.

What to do if the termination date of the employment contract falls on a non-working day?

An employer who receives a resignation letter with a non-working day date must proceed as follows.

1. Offer the employee another dismissal date.

The employer may try to negotiate with the employee to submit the application a couple of days later. It is impossible to force such an action, since the person being dismissed can complain to government authorities about the illegal actions of his superiors.

Important! An alternative option is to offer the employee to shorten the period of service or cancel it altogether by dismissing him in one day (Part 2 of Article 80 of the Labor Code of the Russian Federation allows managers to take such a step).

Few employees refuse such an offer.

1. Take risks.

An employer, knowing that it will be held liable if an employee complains, can do the following:

• 
  You can fire an employee on the following working day (it is better to take advantage of his consent in this matter);

• terminate the contract on the actual last weekday before the non-working day.

In the latter case, the risk is that the fired person may come on the weekend and pick up his application, since this is the final date on the application. Then the manager will have to cancel the dismissal order, and the HR department will have to make an entry in the work book about the cancellation of the dismissal.

If the employee does not agree to quit earlier, and the employer does not want to take the risk, he must fire him on the day written in the application, proceeding as follows.

1. Warn some employees about going to work on a day off.

We are talking about an employee of the HR department who must take care of the paperwork for dismissal, and about an accountant who must make the calculations.

In accordance with Art. 113 of the Labor Code of the Russian Federation, it is possible to attract employees to work on a day off only with their written consent. Exceptions are emergency situations, martial law, etc. The employer needs to remember what it can offer such employees:

• additional payment for work on a non-working day (double the daily salary, Article 153 of the Labor Code of the Russian Federation);
• or an additional day off (the working day off itself is paid in a single amount, and the provided day of rest will not be paid, part 4 of article 153 of the Labor Code of the Russian Federation).

Going to work on a non-working day is formalized by an Order (drawn up in any form), which indicates:

• reasons for working on days off;
• number of hours of work;
• list of employees involved in work;
• indicate the procedure for remuneration.

Important! Employees called to work must read the order against their signature, and the employer must explain their right to refuse.

In addition, employees will be required to provide written consent, which is drawn up in any form.

Despite the fact that working on a day off in this situation should be voluntary, few employees actually refuse, not wanting to spoil relations with their superiors.

1. Invite the person being fired to also come back to work.

Unlike employees of the personnel department or accounting department, whose voluntary resignation is noted only in labor legislation, a dismissed person may refuse to come to work on Saturday or Sunday.
But in this case, he must give written consent to receive the work book by mail.

1. Formalize your resignation.

The entire procedure is carried out in a general manner, which will be discussed in more detail below.

The procedure for voluntary termination in such a situation

The dismissal procedure is practically no different from the usual dismissal procedure specified in Art. 84.1 Labor Code of the Russian Federation. But the employer must take into account the features described above.

1. The emergence of grounds for dismissal of an employee.

In this case, an application for resignation of one’s own free will is being considered, since at the end of the term of a fixed-term contract, the employer has the right to dismiss the employee on the working day following the day off. In other situations, as a rule, management seeks to arrange the dismissal on a weekday.

Reference. A written statement is the basis that the employer will refer to when issuing an Order to terminate the employment contract.

1. Issuance of Orders on dismissal and on inviting employees to work on days off.

The first document is published in a unified form T-8 (Decree of the State Statistics Committee No. 1). The company's letterhead can also be used as a basis. The Order must reflect the following information:

• date and number of the employment contract;
• date of its termination;
• Full name and position of the employee;
• reference to the application for dismissal and to the norm of the Labor Code of the Russian Federation (clause 3, part 1, article 77 of the Labor Code of the Russian Federation);
• manager's signature.

The employee must read this document and sign for it.

An order to engage a personnel officer and an accountant on a non-working day is drawn up in any form. Its contents have been discussed above.

1. Obtaining written consent from employees hired to work on days off.

Applications must be attached to the Order on going to work on a non-working day.

1. Processing of the dismissed person and completion of cases.

The term “working off” itself does not exist in labor legislation.

The employee, in fact, quits on the day he indicated in the application; the law only requires that the application be submitted in advance.

Completion or transfer of affairs and valuables is the responsibility of employees with full financial responsibility (cashiers, accountants, etc.).

Within two weeks, the employer must issue the appropriate Orders and appoint a commission to conduct an inventory.

The end of the transfer of cases is marked by the signing of the act.

1. Personnel design.

If the day of dismissal falls on a day off indicated as the last working day, the HR employee who agreed to go to work draws up a work book and the employee’s personal card.

The first document is handed over to the employee or, with his consent, can be sent by registered mail together with:

• with a certificate of income for 2 years;
• with 2NDFL;
• with information about social contributions;
• with a copy of the dismissal order.

1. Settlement with an employee.

The accountant also goes to work on his day off and draws up a calculation note (form T-61), in which the amounts paid to the dismissed person are entered (Articles 127, 140 and 153 of the Labor Code of the Russian Federation):

• salary balances (if the dismissed person went to work on a day off, he must be paid double, if he refused - single);
• compensation for unused vacation days.

What may be the circumstances of dismissal?

Now let's take a closer look at how you can find out the specific end date of your professional obligations to the company in various situations.

1. The moment when the process of terminating an employment contract is initiated by an individual has already been discussed above. However, things are different when the employee terminates the employment contract by agreement of the two parties. In this situation, there is no need to work another 14 days, and the last working day upon dismissal is indicated taking into account the wishes of each party to the professional relationship. That is, such a document must indicate that the last working day agreed upon by the two parties to the contract is considered the date of dismissal.
2. Following Article 84 of the Labor Code of the Russian Federation , if an employee is absent from his workplace for important reasons while retaining his position, then the date of the last working day is considered differently. These circumstances include a temporary state of incapacity or vacation of the employee. Thus, labor law provisions specifically stipulate that an employed citizen cannot be dismissed on sick leave, which is why the date of dismissal will be the next working day, when the sick leave will be closed and the employee will return to work.
3. It is worth adding that experts in the field of labor law recommend indicating the exact date of dismissal in the contract. If you indicate in the application that the dismissal occurs on the “day of dismissal,” then the next working day may be considered such a date. To avoid such annoying disputes, it is wise to indicate in the application exactly the last day of your stay at the workplace.

How to find a compromise with an employee: practical experience

Postponement of the last day of the notice period for dismissal, in accordance with the requirements of Art. 14 of the Labor Code, for the next working day is not always acceptable for the employee. After all, he could agree to go to another job that day and plan any other things.

The Labor Code does not provide any relief for these cases. But the parties to the employment contract can find a compromise solution, for example, by changing the basis for termination of the employment contract to dismissal by agreement of the parties (Article 78 of the Labor Code of the Russian Federation).

In this case, the employee loses the right to change his decision to quit, but will be able to leave without working for two weeks, and possibly with compensation.

What is more profitable - to pay for working on a day off, compensation - will be decided by the employer himself in each specific case.

conclusions

To summarize all of the above, in most cases the date of your dismissal will be the last working day. That is, on this day you will have to work out your daily quota. In this case, an application for leaving work must be submitted 14 days before the desired date. All this is true not only for citizens of the Russian Federation, but also for other CIS countries - Ukraine, Belarus and Kazakhstan. Of course, in this case, various circumstances may arise, as a result of which the rules for leaving work may be slightly changed, but thanks to reading this article, you already know what to do in such cases.

Author: Alexey Piven