The term of a fixed-term employment contract ends on a weekend. When to terminate this contract? Termination of a fixed-term employment contract on a day off End of an employment contract on a day off

The employee has the right to terminate the employment contract with his employer by notifying him of this no later than 2 weeks in advance (Article 80 of the Labor Code of the Russian Federation). That is, an employee can write a statement at any time, but after that the employer will have the right to demand a 2-week work from him. Or maybe not demand - it's his right.

In this case, the specified period begins on the next day after receiving the application from the employee. And theoretically the last day of these two weeks can fall on a day off. But is it possible to get fired on a day off?

Is it possible to fire an employee on a day off

In accordance with the Labor Code of the Russian Federation, the day of termination employment contract is the last day of the employee’s work, except for cases when the employee did not actually work, but he retained his place of work / position (Article 84.1 of the Labor Code of the Russian Federation). Therefore, in the general case, if the expiration date of the working period - the expected day of dismissal - falls on a day off, then the employee must be dismissed on the next working day following him (Article 14 of the Labor Code of the Russian Federation).

Similarly, if the day of dismissal falls on a holiday (non-working), then the employee must also be fired on the next working day, pay him off and give him work book.

Dismissal on the day of application

In certain cases, the employer is obliged to terminate the employment contract with the employee within the period specified in the application. This applies to employees who can no longer continue their labor activity due to objective reasons:

• employees enrolled in educational institutions;
• retired workers, etc. (Article 80 of the Labor Code of the Russian Federation).

You can't install any work on them. Therefore, the only thing you need to follow is that the date of dismissal in the employee's statement falls on a business day.

Dismissal on a day off at the expiration of the contract

If you have entered into a fixed-term employment contract with an employee, then the last day of his term may also fall on a day off. It is safer in such a situation to formalize the dismissal of an employee in accordance with the general approach - on the next next business day (

The practice of labor relations shows that the working regimes of an employee and administration may not always coincide. Often there are situations when the last working day of an employee falls on a weekend, and accounting and personnel do not work. It also happens vice versa, when the date of dismissal falls on the usual schedule, but the employee himself must rest at this time.

Note

If you try to get information on this issue in your accounting department, you will most likely receive a sharp and categorical answer. Already at the stage of receiving such an application, personnel officers quickly calculate everything and tell the manager the day on which it is necessary to put a resolution. Of course, this date will fall on Friday or Monday.

Is it possible to get fired on a holiday?

To consider the general procedure for dismissal on a day off, one should refer to article 84 of the Labor Code. The rules described in the standard apply to all employers without exception. So, the administration of the enterprise is obliged not only to say goodbye to the employee, but also to give him a work book and pay in full for the hours worked.

Attention

It is best to record the final settlements by asking the employee to sign for receipt.

Today, there is a fairly extensive practice when already dismissed employees were reinstated in the organization due to minor shortcomings made by personnel services.

Normative base

To understand where work on a day off can come from, you need to refer to the procedure for calculating wages. The legislator allows enterprises to choose a payment system, for example, if, according to the conditions of production, it is necessary to assign shifts or work on weekends or holidays. The payment for such an organization of labor is quite equivalent - an employee who has written an application for termination of employment can count on the final payment under Article 140 on a non-working day.

Additional Information

The Labor Code states that the last day of work is the day of dismissal. On this date, the citizen is still formally fulfilling his duties, filling out a bypass sheet. There is no clear reference in the law to which day can be chosen for the final settlement. Therefore, the opinion that it is impossible to dismiss on a day off is hasty and even erroneous.

Step-by-step design instructions

Payouts

Regardless of the date of termination of the employment relationship, the employer remains obliged to pay the accruals due by the day of dismissal:

• Salary calculated in proportion to hours worked;
• Compensation for vacation days that were not used by the date of dismissal;
• Severance pay in cases established by law or company regulations. The specified payment is calculated on the basis of average earnings;
• Other payments stipulated by corporate agreements.

Calculation of due payments

The main ones in case of dismissal on a day off are compensation for unused vacation and remuneration for hours worked after the last planned payment.

For example, an employee of organization H with a salary of 25,000 rubles and an average daily salary of 900 rubles wrote a letter of resignation. At the time of applying, he had unused vacation and working off. Due to his illness, he cannot come, so he sent a letter with a statement by registered mail. He should be compensated for the standard leave of 28 days and 9 working days. The payment will be 900*(28+9) =33300 rubles.

Dismissal on a day off at will

One of the simple solutions that the administration of an organization or an individual entrepreneur can offer is an attempt to negotiate with an employee. For now, the employee can rewrite his own, which will indicate a slightly different date instead of a day off. Of course, such an offer should not infringe on the interests of the employee, especially material ones. It is worth considering that the citizen could already agree with the new leadership on admission from Monday, and this is critical. In this case, you can fire a person before the day off, for example, on Friday.

If it is not possible to agree, the Law continues to be on the side of the employee. The employer does not have the right to change the date of dismissal planned by a citizen working under an employment contract on a day off. Indeed, in most cases, contracts with ordinary employees are drawn up without specifying expiration dates. If the administration of the enterprise deliberately changes the date of termination of the contract, this may entail liability under Article 80 of the Labor Code. It is good if the labor inspectorate does not come for a long time or does not notice such a flaw.

For example, if the employee himself decides to challenge such a decision in 3 months, the prosecutor’s office and the inspection will quickly enough “convince” the organization to reinstate its former employee in his previous position, pay him wages during the forced downtime and all payments due. The financial risks of the company when initiating such events are very tangible.

During vacation

For cases where an employee plans to quit after using the leave, it is necessary to refer to Article 127 of the Labor Code. The standard indicates the need to make settlements with the employee on the day of going on vacation. In this case, the start date of the vacation will be considered the time of termination of the employment contract, and the day of dismissal will be the last day of the vacation that was not taken before. This is also stated in the Letter, which was published in Rostrud in 2007 under the number 5277-6-1.

Features with a shift schedule

When is it planned to terminate the employment contract with an employee employed in shift work, the date of dismissal will be recognized as the last business day. These days may also fall on a day off, which is set in the schedule for a citizen who stops work.

In a situation where an employee must be fired on a day off, the Labor Code does not provide for the possibility of mandatory involvement of administration employees to close issues with termination of the employment contract. At the same time, the employer remains obliged to comply with the conditions of the legislator. To organize work on a day off, he has the right to involve a personnel worker and an accountant for the full registration of a still active employee. It gives him such an opportunity. For out-of-hours work, the director will be forced to make an additional payment or provide other rest days.

Note

For cases where an employee works in shifts, he will have to be fired on the day off. If the employee works under the conditions of a standard five-day working week, the employer has the right to exercise the right that part 4 of article 14 of the Code gives him, namely, if the last day of the contract period falls on a non-working day, it is allowed to make settlements with the citizen on the next (next) working day.

Dismissal on a day off under a fixed-term employment contract

For cases where a fixed-term employment contract terminates on a day off, the effect of Article 14 of the Labor Code has no effect. If the date of termination of the contract is prescribed, the employee should be calculated and fired exactly on the predetermined date, without options. The employer will have to notify the citizen 3 days in advance and issue the dismissal on the last working day.

Additional Information

Attention should be paid to situations when an employee goes to work on a working day and neither of the parties initiates the termination of employment procedure, the contract is automatically extended for an indefinite period. It often happens that in fixed-term contract it does not indicate the date of its end, but a certain time interval, for example, a year. This means that the personnel department has the right to apply general provisions article 14 of the Labor Code in terms of the calculation of his colleague on the next next business day.

Nuances

If for an employee the day of dismissal is considered a working day, and for the administration a day off, this should not interfere with the calculation of the employee. If an accountant or a HR worker does not work in principle on a date, this can significantly complicate the situation. As a general rule, work on weekends and public holidays is not allowed. True, again, the employer can appoint such a day as a working day, having issued the exit of responsible persons with the appropriate order for the enterprise.

The company and the employee have the right to terminate the employment relationship on any day, by agreement, while observing the requirements labor law. In the article, we consider the situation when the day of dismissal falls on a day off.

Is it possible to fire an employee on a day off

Determination of deadlines in the workflow is governed by Article 14 Labor Code. It indicates that in a situation where the day of the end of the employee's labor activity falls on a weekend or holiday, the date of dismissal must be considered the next business day. Cases when the employee did not actually perform his duties, but his workplace kept are the exception.

The issue can be resolved differently if the expected day of departure falls on a holiday. The holiday period can last for several days, as a result of which working out is delayed. This situation is usually resolved by agreement of the parties. An employee, with his consent, can be fired earlier, that is, on a working day before the holidays.

On the other hand, there is no direct prohibition of termination of employment on a non-working day in the labor code, but in practice this is possible in exceptional cases. In Art. 84.1 of the Labor Code of the Russian Federation states that on the last working day, the enterprise is obliged to pay off the resigning employee. He needs to pay current wages and all due compensation, including for non-holiday vacation, as well as return labor and issue all other documents.

Delay in all these procedures threatens the employer with a fine. The most common complaint labor inspection the employee explains that due to the delay, he was unable to conclude a new employment agreement.

Is it possible to dismiss on a day off at will

Curious information

Please note that there may be different situations with dismissal. The termination of labor relations occurs: due to staff reduction; upon liquidation of the organization; during an employee's vacation; on a day off; at the initiative of management; in connection with the termination of the employment contract; at the personal request of the employee. In practice, the latter option is the most popular.

Based on Article 80 of the Labor Code of the Russian Federation, an employee can quit at will at any time during the validity of the employment agreement, but subject to a written warning from the employer 14 days in advance. If the working period ends on a weekend or holiday, then, based on Art. 14 of the Labor Code of the Russian Federation, the employer has the opportunity to determine the last working day on the next working date.

At the same time, in the third paragraph of Art. 80 contains a list of categories of employees, the employment agreement with which the employer is obliged to terminate exclusively within the period specified in the letter of resignation, namely:

• the employee can no longer continue his labor activity (entry to study at the full-time department, retirement, etc.);
• violation by the enterprise of the norms of the labor code and other legislative acts;
• violation by the employer of the clauses of the collective agreement.

In the event that on a non-working day at the enterprise it is not possible to pay off an employee, he may be asked to write a statement setting the date of dismissal on the previous or next business day. This is done to avoid possible conflict situations with the employee.

Is it possible to terminate the TD at the initiative of the enterprise if the day of dismissal coincides with a day off

Termination of an employment agreement at the initiative of the employer on a day off is often the subject of litigation. For example, when reducing staff, the employer can terminate the agreement on the date when the two-month notice period for the reduction ends.

At the same time, a number of court decisions were made in favor of the employee. In them, the court referred to Article 14 of the Labor Code of the Russian Federation. The decision in favor of the employer is justified by Art. 180 of the Labor Code of the Russian Federation, namely, that two months before the date, the employee was notified of the reduction in writing against signature.

If the last day of working is a day off, the employer may oblige the employee to go to the shift on weekdays. Such a rule is spelled out in the Labor Code and respects the rights of both parties.

Dismissal at the end of a fixed-term employment contract

The fixed-term employment contract must specify the duration of its validity. If the end day is a holiday or weekend, then employers may also be guided by Art. 14 of the Labor Code of the Russian Federation and terminate the employment relationship with the employee on the next working day.

At the same time, there are precedents in the court, where it was recognized legal right employer to fire an employee and off-duty day. In order to avoid conflict situations, the responsible employees of the employer, when preparing an employment contract, usually check whether a certain end date of the agreement falls on a day off.

Watch a video on how to fire an employee after the expiration of the employment contract

Features of dismissal on a day off

At an enterprise where there is a shift schedule, a situation may arise when the planned day of termination of the employment agreement is a working day for an employee, and a day off for a personnel specialist. For such circumstances, an explanation was given by Rostrud by Letter No. 863-61 of 06/18/2012. The document indicates that the employer is obliged to ensure the presence at work on that day of specialists responsible for processing the calculation.

Do you have any questions? Ask them in the comments to the article

In this situation, the employee must be dismissed on the day the employment contract expires - October 31, 2015. On this day, the employer is obliged to issue a work book to the employee and make settlements with him. The order to terminate the employment contract can be issued both on the day the employee is dismissed, and earlier, on the working day of the employees of the personnel department and the head.

A fixed-term employment contract terminates with the expiration of its validity period (part 1 of article 79 of the Labor Code of the Russian Federation). Article 14 of the Labor Code of the Russian Federation provides for the procedure for calculating terms in labor relations. According to part 4 of Art. 14 of the Labor Code of the Russian Federation, if the last day of the term falls on a non-working day, then the expiration day of the term is the next working day following it. We believe that this rule should be applied only in cases where it is necessary to determine the expiration date of the period specified in the employment contract in the form of a period of time (month, year, etc.). In this case, the term of the employment contract is not determined by a period of time, but by a specific calendar date - October 31, 2015, therefore Part 4 of Art. 14 of the Labor Code of the Russian Federation, in our opinion, does not apply.

According to Art. 84.1 of the Labor Code of the Russian Federation, the day of termination of the employment contract in all cases is the last day of the employee's work, except for cases when the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal law, the place of work (position) was retained. Neither the provisions of Art. 79 and 84.1 of the Labor Code of the Russian Federation, nor other norms of the Labor Code of the Russian Federation do not contain a ban on the dismissal of an employee on a day off specified in a fixed-term employment contract.

Thus, in the situation under consideration, the employer must dismiss the employee on the day the employment contract expires - October 31, 2015, warning the employee in writing at least three calendar days before the specified date (part 1 of article 79 of the Labor Code of the Russian Federation). At the same time, the methods of notifying an employee about the upcoming dismissal of the Labor Code of the Russian Federation have not been established. Such notification can be either delivered to the employee personally or sent by mail.

Labor legislation does not define a specific day for issuing an order to terminate an employment contract. The dismissal order can be issued by the employer in advance - before the already known date of dismissal (determinations of the Chelyabinsk Regional Court of August 12, 2013 No. 11-7130 / 2013, Sverdlovsk Regional Court of July 13, 2010 No. 33-7263 / 2010).

In accordance with Part 4 of Art. 84.1 of the Labor Code of the Russian Federation, on the day the employment contract is terminated, the employer is obliged to issue a work book to the employee, in column 2 of which October 31, 2015 must be indicated as the date of dismissal, and make settlements with the employee in accordance with Art. 140 of the Labor Code of the Russian Federation. Since the procedure for terminating an employment contract established by the Labor Code of the Russian Federation does not provide for the possibility of issuing a work book to an employee, as well as paying all the amounts due to him earlier than the day the employment contract is terminated, the employer is not entitled to do this earlier than this day, these actions must be performed on the day of dismissal.

Thus, in the situation under consideration, the employer needs to ensure for the employee, the term of the employment contract with which expires on Saturday, the opportunity to receive a work book and pay on that day.

Answer: By virtue 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 about the termination of the employment contract due to its expiration at least three calendar days before the dismissal, except in cases where the term of the fixed-term employment contract concluded for the period of performance of the duties of the absent employee expires.

There are also several opinions about when to issue the termination of a fixed-term employment contract, if the last day falls on a day off:

- issue a dismissal on the last working day preceding the day off;

- dismiss on the next working day after the day off;

To formalize the termination of the contract on the day the fixed-term employment contract ends, for this, to involve employees of the personnel service and accounting department to work on the day off.

We consider the most correct way to be dismissed on the next working day following the day off on which the date of expiration of the fixed-term employment contract fell. At the same time, follow the procedure: you need to warn the employee about the termination of the employment contract due to the expiration of its validity in writing at least three calendar days before the dismissal.

In the case when none of the parties demanded the termination of a fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the contract, the condition on the urgent nature of the latter becomes invalid and it is considered concluded for an indefinite period (part 4 article 58 of the Labor Code of the Russian Federation).

B.A. Chizhov

Deputy Chief

office work department

case management

Federal Service

on labor and employment,

state adviser of the Russian Federation

2nd class

Signed for print

Question: The employee on 09/03/2012 filed a letter of resignation due to own will 09/23/2012, in his work shift according to the schedule. Is this the basis for involving the inspector of the personnel department and the accountant to work on the day off 09/23/2012?

Answer: Registration of the termination of the employment contract with the employee and the implementation of the final settlement with him must be made on the last day of his work, even if this day coincides with a day off for the employer's services authorized to carry out these actions.

Rationale: One of the grounds for termination of an employment contract is provided for in paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation, termination of the employment contract at the initiative of the employee (at his own request). Article 80 of the Labor Code of the Russian Federation in Part 1 provides for the right of the employee to terminate the employment contract by notifying the employer in writing no later than two weeks in advance, unless another period is established by the Labor Code of the Russian Federation or other federal law. In this case, the employee can indicate in the application the specific date of dismissal, independently calculating it according to the rules of this article. Upon the expiration of the termination notice, the employee has the right to stop work in accordance with Part 5 of Art. 80 of the Labor Code of the Russian Federation.

The day of termination of the employment contract in all cases is the last day of the employee's work (Article 84.1 of the Labor Code of the Russian Federation), on which the employer is obliged to issue a work book to the employee and make the final settlement with him in accordance with Art. 140 of the Labor Code of the Russian Federation. In accordance with the Letter of Rostrud dated 06/18/2012 N 863-6-1, if the employment contract is terminated with an employee who is shift mode working hours, the date of termination of the employment contract is the date of the last working day of the employee, including those falling on a weekend or non-working holiday.

The procedure for terminating an employment contract established by labor legislation does not provide for the possibility of issuing a work book to an employee, as well as paying all the amounts due to him earlier than the day the employment contract is terminated, except in cases where the employee is granted leave with subsequent dismissal (Determination of the Constitutional Court of the Russian Federation dated January 25, 2007 N 131-O -O, Letter of Rostrud dated December 24, 2007 N 5277-6-1). And later than the day of dismissal, the relevant actions can be carried out by the employer only if it is impossible to do this on the day of termination of the employment contract due to the absence of the employee: according to Art. 84.1 of the Labor Code of the Russian Federation, these are cases when the day of dismissal is not the last day of work, but the day of the period during which the employee retained his place of work.

Since the dismissal under paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation does not depend on the will of the employer, despite the fact that the employee warned the employer of his dismissal more than two weeks in advance, it will be unlawful for the employer to unilaterally postpone the date of his dismissal indicated in the employee’s application at his own request in order to make the dismissal and final settlement in working day and not to involve the inspector of the personnel department and the accountant to work on the day off 23.09.2012.

Since, firstly, the date of dismissal of his own free will is determined by the employee, taking into account the requirements of Art. 80 of the Labor Code of the Russian Federation on compliance with the warning period and is recorded in the letter of resignation, and, secondly, according to the work schedule approved by the employer, taking into account the opinion of the representative body of employees (Article 103 of the Labor Code of the Russian Federation), this day is the last working day for the dismissed employee, we believe it is correct to fire on this very day (in the question it is 09/23/2012), despite the fact that it is a day off (according to parts 1 and 2 of article 111 of the Labor Code of the Russian Federation) for the employer's services that are authorized to process the dismissal of an employee and carry out with him the final settlement.

In the situation under consideration, the employer can only turn to the employee with a proposal to terminate the employment contract before the expiration of the warning period on the basis of Part 2 of Art. 80 of the Labor Code of the Russian Federation. If the employee does not agree with him, the dismissal must be made on 09/23/2012 with the involvement of the inspector of the personnel department and the accountant to work on a day off.

Yu.V. Shchedryakova

Consulting and analytical center

in accounting

and taxation

Document provided by ConsultantPlus

"Personnel department of the state (municipal) institution", 2012, N 2

Question: Can an employee working in the irregular working hours be attracted to work on a day off?

Answer: In accordance with Letter N 1316-6-1, an employee who has an irregular working day may be involved in the performance of his labor functions both before the start of the working day (shift) and after its (its) end. At the same time, the introduction of an irregular working day for employees does not mean that they are not subject to the rules that determine the start and end time of work, the procedure for recording working time, etc. These workers are released on a general basis from work on weekly rest days and holidays. And they can also be involved in work on weekends and holidays on a general basis with the application of Art. 113 of the Labor Code of the Russian Federation - that is, with the written consent and, if necessary, the performance of unforeseen work in advance, on the urgent implementation of which the normal operation of the organization as a whole or its individual structural divisions depends in the future.

Engaging employees to work on weekends and non-working holidays without their consent is allowed in the following cases:

To prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;

To prevent accidents, destruction or damage to the property of the employer, state or municipal property;

To perform work, the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency situations, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases that put under threat to the life or normal living conditions of the entire population or part of it.

holiday pay or holiday carried out in the amount established by Art. 153 of the Labor Code of the Russian Federation.

I.I. Shklovets

Deputy Head

Federal Service

for work and employment

Signed for print