How to get a vacation followed by dismissal. What vacations are there

Labor law- one of the important branches of law that regulates labor relations between employees and employers, as well as other relations directly related to labor.

Work- This is a purposeful human activity, the implementation of his physical and mental abilities to obtain certain material or spiritual benefits (creating the material basis of society).

However, not every work is associated with work activities and norms labor law... So, the work on a personal garden plot, the work of a housewife to clean her own apartment, do the laundry, prepare food for herself and her family, the work of a student to master knowledge - all this is socially useful work. But it is not regulated by labor law.

Labor can be individual and in social cooperation of labor.

Public organization of labor- this is joint labor as a cooperation of labor to obtain a certain product of a given production, including spiritual (orchestral music, theater, etc.), management activities or the provision of certain services in the public sector (medicine, education, etc.) ). The social organization of labor in any society has two sides:

1.technical;

2. social.

Labor law does not regulate the technical side ( technological processes, the work of equipment, machines) - here are used technical regulations which in different countries may be the same.

Labor law is a set of norms that regulate social (social) relations for labor in production, for the social (social) organization of labor in all its diversity, for the protection of labor rights and legitimate interests of individuals and legal entities, and specific legal relations in these areas.

The system of social and labor relations includes a wide range of relations, but the framework of this system is precisely labor relations associated with the use of hired labor.

An individual entrepreneur, being the owner of the means of production and at the same time possessing a labor force that he controls, works independently, individually. There is no place for labor relations, there is no joint (collective) labor process.

Labor Relations- relations based on an agreement between the employee and the employer on the personal performance by the employee for a fee of the labor function (work according to the position in accordance with staffing table, profession, specialty indicating qualifications; specific type of work entrusted to the employee), the subordination of the employee to the rules of the internal labor schedule, while the employer provides the working conditions provided for labor legislation and other regulatory legal acts containing labor law norms, collective bargaining agreements, agreements, local regulations, an employment contract (Article 15 of the Labor Code of the Russian Federation).

The subject of labor law are not all relations associated with labor, but only social and labor relations arising in connection with direct activity people in the process of work, performance of work. Being associated with the use of hired labor, they arise between hired workers and employers (in some cases, representatives of workers and employers, as well as the state through its bodies, can participate in these relations).

The subject of labor law includes:

1) the actual labor relations;

2) others, closely related to them and derived from them public relations(Article 1 of the Labor Code of the Russian Federation):

· On the organization of labor and labor management;

· For employment with this employer;

· On vocational training, retraining and advanced training of employees directly from the given employer;

· On social partnership, collective bargaining, collective bargaining and agreements;

· On the participation of employees and trade unions in the establishment of working conditions and the application of labor legislation in cases provided for by law;

· on material responsibility employers and workers in the world of work;

· on state control(supervision), trade union control over compliance with labor legislation (including labor protection legislation) and other regulatory legal acts containing labor law norms;

By permission labor disputes;

On compulsory social insurance in the cases provided for federal laws.

This relationship has both common features, and essential features characteristic only of them and distinguishing them from other relations, one way or another associated with the use of labor of hired workers.

Distinction of the subject of the branch of labor law(as a system of relations regulated by the norms of labor law), from the subject of the science of labor law and the curriculum: their subject is the study of the norms of labor legislation themselves, not only Russian, but also international, as well as their history and teachings about legal relations in the sphere of labor law.

If the subject of labor law indicates the kind, type of social relations that are regulated by the norms of labor law, then the method of labor law shows how and by what legal methods and means the regulation of labor relations is carried out.

Labor law method- a set of techniques and methods used by the legislator for the most effective regulation of labor and relations derived from them.

The method of each branch of law has its own characteristics, i.e. a complex of methods of legal regulation of labor inherent only to it. The specificity of the method of labor law distinguishes this branch from other branches of law.

Considering the question of the method of labor law, it should be borne in mind that there are two main methods of legal regulation of social relations:

1.public law (imperative);

2. private law (optional - the conclusion of civil law contracts).

If the citizens of Russia exercise the constitutional right to work as employees by concluding an employment contract, then a combination of methods is possible (and most often it takes place).

Since labor relations cover three elements: property, managerial and protective, the characteristics of each of these elements have an impact on the method of labor law. As a result, it has a different impact on different institutions of a given branch of law. The subject feature of labor law, which has a well-defined specificity, leaves a kind of imprint on its method.

Features of the method of legal regulation of labor relations (method of labor law):

· Combination of centralized and decentralized (primarily local) regulation;

· A combination of unity and differentiation of legal regulation, characterized by the presence of both general norms and norms that take into account the peculiarities of labor of various categories of workers (according to objective or subjective criteria);

· A contractual way of establishing and changing labor relations (with the exception of those parameters that are set in a centralized manner);

· Social partnership (fairly broad participation of workers' representatives in the regulation of many aspects of labor relations);

· The specifics of protecting the labor rights of participants in labor relations, which is reflected in the mechanism for monitoring and monitoring compliance with labor and labor protection legislation, as well as in the mechanism for resolving labor disputes.

QUESTIONS TO PREPARE FOR THE COURSE EXAM

LABOR LAW

The subject of labor law in Russia.

Labor law is an independent branch of Russian private law that regulates social relations arising in the labor process, characterized by a special subject, method and principles of legal regulation.

Item any branch of law constitutes homogeneous social relations, which are governed by the norms of this branch of law.

The subject of labor law

Labor law, in comparison with other branches of the group of branches of private law, has certain features, in particular:

Combination of substantive and procedural law;

Relations between participants in regulated relations are built on two levels: individual and collective.

The subject of labor law is social relations arising in connection with the direct activities of people in the process of labor (performance of work), as well as other closely related relations.

In accordance with Art. 15 of the Labor Code of the Russian Federation, labor Relations- this is a relationship based on an agreement between the employee and the employer on the employee's personal performance for a fee of the labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee), the employee's submission to the internal labor regulations when providing the employer with working conditions stipulated by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations, labor contracts.

If an employment contract is not concluded or instead employment contract the parties will conclude a civil law contract, but it will be established that there are essential signs of an employment relationship in a specific relationship between an employee and an employer, then the relationship between the employee and the employer will be recognized as labor relations with the appropriate application of labor legislation and other acts containing labor standards to such relationships. rights.

In addition to labor relations, the subject of labor law also includes other social relations closely related to them, in particular:

Employment and Employment Relationships;

Relations on professional training, retraining and advanced training directly with the employer;

Material liability relations of the parties to the employment contract;

Social partnership relations;

Relationship to supervise the observance of labor legislation;

Labor dispute settlement relations.

Features of the method of legal regulation of labor and other relations directly related to them.

Method shows how and by what legal methods, means the regulation of social relations is carried out.

Labor law method- a set of legal means used in the regulation of labor and related relations.

The complex nature of the labor law method consists in a combination of public law and private law components.

The main features of the labor law method:

1) equality of the parties to the employment relationship when concluding an employment contract and subordination of the employee in the process labor activity internal labor regulations;

2) the basis for the emergence of labor relations is a bilateral act - an employment contract;

3) a variety of ways to establish the rights and obligations of the parties (laws and regulations, collective agreements and agreements, local regulations and an employment contract);

4) the specificity of the protection of labor rights (consideration of individual and collective labor disputes, state supervision and control, self-defense) and ensuring the fulfillment of duties by the employee (disciplinary and material responsibility).

Signs of the method of labor law in terms of methods of establishing labor law norms:

Combination of centralized and local regulation;

Combination of state and contractual regulation;

Participation of employee representatives in the establishment of labor law;

Unity and differentiation of legal regulation;

Combination of imperative and discretionary regulation.

Labor law principles.

Labor law principles- basic provisions, general principles and ideas that express the essence of labor law. The principles of labor law are enshrined in Art. 37 of the Constitution of the Russian Federation and in the Labor Code of the Russian Federation.

The principles of labor law are general principles and ideas that express the essence of the industry.

Sectoral principles (typical only for labor law, article 2 of the Labor Code of the Russian Federation).

The basic principles of labor law are enshrined in Art. 2 of the Labor Code of the Russian Federation:

1.freedom of labor, including the right to work, which everyone freely chooses or to which freely agrees, the right to dispose of their abilities for work, to choose a profession and occupation;

3. protection from unemployment and assistance in employment;

4.Ensuring the right of every employee to fair working conditions, including working conditions that meet safety and hygiene requirements, the right to rest, including limitation of working hours, the provision of daily rest, weekends and non-working holidays, paid annual leave;

5. equality of rights and opportunities for employees;

6.Ensuring the right of every employee to timely and full payment of fair wages providing worthy of a man existence for himself and his family, and not lower than that established by federal law minimum size wages;

7.Ensuring equality of opportunities for workers without any discrimination for promotion at work, taking into account labor productivity, qualifications and work experience in the specialty, as well as on vocational training, retraining and advanced training;

8. ensuring the right of workers and employers to associate in order to protect their rights and interests, including the right of workers to form trade unions and join them;

9. ensuring the right of employees to participate in the management of the organization in the forms prescribed by law;

10. combination of state and contractual regulation of labor relations and other relations directly related to them;

11. social partnership, including the right to the participation of employees, employers, their associations in the contractual regulation of labor relations and other relations directly related to them;

12. the obligation to compensate for harm caused to the employee in connection with the performance of his labor duties;

13. the establishment of state guarantees to ensure the rights of workers and employers, the implementation of state supervision and control of their observance;

14. ensuring the right of everyone to be protected by the state of his labor rights and freedoms, including judicial protection;

15. ensuring the right to resolve individual and collective labor disputes, as well as the right to strike in the manner established by this Code and other federal laws;

16.the obligation of the parties to the employment contract to comply with the terms of the concluded contract, including the right of the employer to require employees to fulfill their labor duties and respectful attitude to the property of the employer and the right of employees to require the employer to comply with his obligations in relation to employees, labor legislation and other acts containing labor law norms;

17. Ensuring the right of representatives of trade unions to exercise trade union control over the observance of labor legislation and other acts containing labor law norms;

18. ensuring the right of workers to protect their dignity during the period of employment;

Sources of labor law.

Legislative and other normative legal acts regulating labor relations are called sources of labor law, and their totality is called labor legislation.

Normative legal acts are among the most common and significant sources of labor law. As already noted, they differ in their legal force and, accordingly, in their place in the source system.

1. The Constitution of the Russian Federation proclaims basic human rights in the sphere of labor, which form the basis of the corresponding institutions of labor law. These include:

The right to association, including the right to form trade unions to protect their interests (art. 30);

The right to freely dispose of one's abilities for work, to choose an occupation and profession;

The right to work in a safe and hygienic environment;

The right to remuneration for work without any discrimination and not lower than the minimum wage established by federal law;

The right to protection from unemployment;

The right to rest (art. 37).

In addition to the listed rights, Art. 37 of the Constitution of the Russian Federation recognizes the right to individual and collective labor disputes using the methods of resolving them established by federal law, including the right to strike.

In addition to securing the basic labor rights and principles of labor law, the norms of the Constitution of the Russian Federation are important for building a system of sources of labor law. So, Art. 15 of the Constitution of the Russian Federation includes generally recognized principles and norms in the legal system of the country international law and international treaties of the Russian Federation. For labor law, this provision is very important, since a significant part of human rights are labor rights, such as the right to work, the right to rest, to association, etc. These rights and the mechanism for their implementation are reflected both in international pacts, declarations, and in multilateral international treaties - conventions of the International Labor Organization. Recognizing them as directly acting on the territory of the Russian Federation is evidence of Russia's integration into the international community and proof of its adherence to general humanistic ideals.

The Constitution of the Russian Federation (Article 72) classifies labor legislation as a joint jurisdiction Russian Federation and subjects of the Russian Federation.

2. The Labor Code is the basic act of the industry and in accordance with Part 3 of Art. 5 of the Labor Code has a priority in comparison with other federal laws.

The Labor Code defines the content of all institutions of labor law. It contains the conceptual apparatus of the industry, fixes the basic principles of legal regulation of labor relations, determines the legal status of the employee and the employer. The Code plays a key role in the mechanism of legal regulation of labor relations, establishing the rights of workers, their guarantees and ways of protecting them.

3. Along with Labor Code in the field of labor law, other federal laws apply. Among them it is necessary to name:

RF Law "On Employment of the Population in the Russian Federation" as amended by Federal Law of 20.04.1996 N 36-FZ, which established the mechanism for the implementation of the constitutional right to protection against unemployment;

Federal Law of 05/01/1999 N 92-FZ "On the Russian Tripartite Commission for the Regulation of Social and Labor Relations", which provides for the procedure for the formation of a special tripartite body, the tasks of which are collective bargaining and preparation of a draft general agreement, consultations on issues related to the development of drafts of federal laws and other normative legal acts in the field of social and labor relations, federal programs in the field of labor, coordination of the positions of the parties in the main areas of social policy, etc.

Labor law provisions are also contained in other federal laws. Thus, Federal Law No. 10-FZ of 12.01.1996 "On Trade Unions, Their Rights and Guarantees of Activity" provides for the rights of trade unions to represent and protect the interests of workers in collective bargaining, when resolving a collective labor dispute, when implementing local regulation and law enforcement.

A number of federal laws provide for the specifics of the legal regulation of labor relations for certain categories of workers. For example, the RF Law of 19.02.1993 N 4520-1 "On State Guarantees and Compensations for Persons Working and Living in the Far North and Equated Localities" establishes more favorable working conditions for workers forced to work in harsh climatic conditions.

Federal Law of 07.11.2000 N 136-FZ "On social protection citizens employed in work with chemical weapons "provides special working conditions for workers directly employed in work related to detoxification, maintenance, destruction of chemical weapons.

Federal Law of 25.07.2002 N 115-FZ "On legal status foreign citizens in the Russian Federation "defines the conditions for attracting foreign citizens to work on the territory of the Russian Federation. Examples can be continued.

All of these laws are valid in the part that does not contradict the Labor Code.

4. Certain federal constitutional laws are relevant to labor law. For example, the Federal Constitutional Law of 30.05.2001 N 3-FKZ "On the State of Emergency", among the measures and temporary restrictions applied when the state of emergency is declared, provides for the prohibition of strikes and other methods of suspending or terminating the activities of organizations (Article 11). The prohibition of strikes may be provided for by a decree of the President of the Russian Federation on the introduction of a state of emergency.

5. Decrees of the President of the Russian Federation containing labor law norms are by-laws and should not conflict with the Labor Code and other federal laws.

Presidential decrees regulate some issues of remuneration of workers in the public sector, the conditions for passing public service(in particular, the procedure for the preparation and certification of civil servants, the procedure for calculating the length of service, determining the amount of pay, etc.). Certain discipline statutes have been approved by decrees.

6. Resolutions of the Government of the Russian Federation, as a rule, are aimed at concretizing the relevant law or at regulating certain elements of the labor relationship, as well as the implementation of differentiation in labor law. Here are some examples:

Decree of the Government of the Russian Federation of March 16, 2000 N 234 "On the procedure for concluding employment contracts and certification of heads of federal state unitary enterprises";

Resolutions of the Government of the Russian Federation approved a certain amount of statutes and regulations on discipline;

A large number of resolutions of the Government of the Russian Federation are adopted on labor protection. They approve provisions on various federal oversight, lists of hazardous and harmful work, rules for certification of workplaces for working conditions. By Decree of the Government of the Russian Federation of December 15, 2000 N 967, the Regulation on the investigation and registration of occupational diseases was also approved.

7. The last place in the hierarchy of federal acts is occupied by departmental acts. They are adopted in accordance with the provisions on specific ministries, registered with the Ministry of Justice of the Russian Federation and published for general information... Among them, acts of the Ministry of Labor and social development RF, which established some working conditions (for example, working hours and rest time for workers in certain sectors of the economy), determined model norms labor, approved a unified tariff and qualification reference book, qualification guides positions of leaders and specialists of certain sectors of the national economy. In addition, the Ministry of Labor of Russia adopted acts of normative interpretation - explanations that are mandatory for law enforcement officers.

8. Municipal legal acts. Along with the normative legal acts adopted by the state authorities, in labor law there are acts adopted in the manner prescribed by law by the bodies local government and the employer.

Decisions of representative bodies municipalities in the labor sphere are usually taken on the issues of establishing working conditions for employees of municipal enterprises, concluding an employment contract with the head of a municipal enterprise, promoting employment.

9. Local regulations. A specific source of labor law is a local normative act adopted by the employer within its competence. Such an act applies to all employees of a given organization or to certain categories of employees specifically indicated in the act itself. As a rule, a local normative act is adopted taking into account the opinion of the representative body of employees.

For example, Art. 190 of the Labor Code provides that the internal labor regulations are approved by the employer, taking into account the opinion of the representative body of employees.

Unlike collective agreements and agreements that are concluded after collective bargaining and are valid for a certain period (up to three years), the procedure for adopting local acts has not been established, they can be either urgent (with a specified duration) or permanent (without expiration date).

10. Laws and other regulatory legal acts of the constituent entities of the Russian Federation. In accordance with the Constitution of the Russian Federation, labor legislation belongs to the subjects of joint jurisdiction of the Russian Federation and its subjects.

Since the beginning of the 90s. in the constituent entities of the Russian Federation, a significant number of laws and other normative acts in the field of labor relations have been adopted, but they do not have any significant significance for the ordering of labor relations and serve as an auxiliary regulator.

By the nature of the legal regulation being carried out, the normative acts adopted by the constituent entities of the Russian Federation can be divided into four categories:

1) laws implementing the anticipatory legal regulation;

2) acts, legislative and by-laws, aimed at specifying the provisions of federal legislation, taking into account regional specificities labor market, work organization, climatic conditions, etc .;

3) acts that increase the level of labor rights and guarantees of employees;

4) normative acts regulating public relations, which are of exclusively regional importance.

Thus, all labor legislation can be brought into a certain system:

1. Federal laws, constitutional and ordinary current laws (Constitution, Fundamentals of legislation on labor protection, Labor Code, Law "On Employment", "Collective Agreements and Agreements).

2. International labor acts ratified by the state - treaties and conventions of the International Labor Organization (ILO). To date, the ILO has adopted 75 conventions. Our country has ratified only 50 conventions, and now only 44 are in force.

3. Regulatory decrees of the President, which usually provide additional measures to protect the rights of citizens.

4. Resolutions of the Government of the Russian Federation, which are adopted on a variety of issues.

5. Acts of federal bodies executive power, the so-called departmental acts, which can be of an intradepartmental nature, or of an interdepartmental nature (Resolutions of the Ministry of Labor and Social Development, the Ministry of Finance and Economy of the Russian Federation).

6. Laws and other regulatory legal acts of the constituent entities of the Russian Federation - labor legislation is under the joint jurisdiction of the constituent entities and the Russian Federation (as a rule, they provide additional benefits for employees).

7. Acts of local self-government bodies, which at the expense of own funds establish labor standards.

8. Agreements on social and labor issues. These are legal acts that regulate social and labor relations between employees and employers and are concluded at the level of the Federation, constituent entity of the Russian Federation, industry, profession, territory.

9. Collective agreements and other local regulations adopted directly in the organization and applicable to the employees of this organization (Charters, Internal Labor Regulations, regulations on wages, bonuses, etc.).

10. Acts of the former Union in the part that does not contradict the Constitution, the legislation of the Russian Federation (Art. 4).

11. The norms of labor law may be contained in regulatory enactments related in general to other branches of law.

The right of a party to an employment relationship is an opportunity for a party to demand from the obligated party, including the guilty party, positive actions to comply with regulatory legal acts in the field of labor and the terms of an employment contract, enshrined in a law, another regulatory legal act containing labor law norms, or an agreement, non-admission of violations of subjective rights or its restoration in case of violation.

The basic subjective rights of the employee and the employer, established by the Labor Code of the Russian Federation, are determined, concretized and detailed by departmental and local regulations, collective agreements, agreements and labor contracts.

A legal obligation in an employment relationship is a measure of due behavior of an obliged party prescribed by the norms of labor law in the interests of an authorized party (subject), provided with the possibility of state coercion.

The obligation is always established where there is a subjective labor law. A legal obligation is not an act, but simply a necessity. The properties of an obligation in an employment relationship are:

- the need to take active positive actions in favor of the entitled party in order to prevent violation of its rights;

- the need for the obligated party to behave in an established manner;

- the need to refrain from actions prohibited by labor law;

- the possibility of applying state coercion to the obligated party in the event that it fails to carry out mandatory actions required by law or an agreement or performs actions that are prohibited by the Labor Code of the Russian Federation.

Thus, in the system of relations governed by labor law, labor relations are the central link. Other directly related to labor relations are due to their existence. In the overwhelming majority of cases, the termination of labor relations leads to the termination of other relations included in the sphere of labor law, and, conversely, the emergence of labor relations gives rise to other directly related relations regulated by labor law.

The reason for the occurrence employment relationship is the conclusion of an employment contract, which involves a bilateral expression of will (agreement): the employee - to go to work for this employer, and the employer - to hire him.

However, sometimes the emergence of an employment relationship is possible only in the presence of a complex legal fact. So, according to Art. 16 of the Labor Code of the Russian Federation, in cases and in the procedure established by labor legislation and other regulatory legal acts containing labor law norms, or by the charter (the position of the organization, labor relations arise on the basis of an employment contract as a result of:

- election to office;

- election by competition to fill the relevant position;

- appointments or approvals;

- assignments to work by bodies authorized in accordance with federal law on account of the established quota;

- a court decision on the conclusion of an employment contract.

Labor relations between the employee and the employer also arise on the basis of the actual admission of the employee to work with the knowledge or on behalf of the employer or his representative in the case when the employment contract was not properly executed.

In Art. 57 of the Labor Code of the Russian Federation enshrines an extensive list of issues and conditions to be agreed between the employee and the employer, which should be content of an employment contract... All conditions that can be agreed by the parties in an employment contract are divided into three main groups:

1. Data that must be indicated in the employment contract (part 1 of article 57 of the Labor Code of the Russian Federation):

Surname, name, patronymic of the employee and the name of the employer (last name, first name, patronymic of the employer - an individual) who entered into an employment contract;

Information about the identity documents of the employee and the employer - an individual;

Taxpayer identification number (for employers, excluding employers - individuals not individual entrepreneurs);

Information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate powers;

Place and date of the conclusion of the employment contract.

2. Conditions mandatory for inclusion in an employment contract (part 2 of article 57 of the Labor Code of the Russian Federation):

Place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of an organization located in another locality, the place of work with an indication of a separate structural unit and its location;

Labor function(work according to the position in accordance with the staffing table, profession, specialty with an indication of qualifications; the specific type of work entrusted to the employee). If, in accordance with the Labor Code of the Russian Federation, other federal laws, the provision of compensation and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the name of these positions, professions or specialties and qualification requirements they must correspond to the names

The date of commencement of work, and in the case when a fixed-term employment contract is concluded, also the period of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with the Labor Code of the Russian Federation or other federal law;

Terms of remuneration (including the size of the wage rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);

Working hours and rest hours (if for this employee it differs from the general rules in force for this employer);

Compensation for hard work and work with harmful and (or) dangerous working conditions, if the employee is hired in appropriate conditions, indicating the characteristics of the working conditions at the workplace;

Conditions that determine, if necessary, the nature of work (mobile, traveling, on the road, other nature of work);

Condition on compulsory social insurance of the employee in accordance with the Labor Code of the Russian Federation and other federal laws;

Other conditions in cases stipulated by labor legislation and other regulatory legal acts containing labor law norms.

3. Additional terms that do not worsen the position of the employee in comparison with the established labor legislation and other regulatory legal acts containing labor law norms, collective bargaining agreements, agreements, local regulations, in particular (part 4 of article 57 of the Labor Code of the Russian Federation):

About specifying the place of work (indicating the structural unit and its location) and (or) about the workplace;

About the test;

On non-disclosure of secrets protected by law (state, official, commercial and other);

On the employee's obligation to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer;

On the types and conditions of additional insurance for the employee;

On improving the social and living conditions of the employee and his family members;

On clarification, in relation to the working conditions of this employee, the rights and obligations of the employee and the employer, established by labor legislation and other regulatory legal acts containing labor law norms.

From the analysis of Art. 57 of the Labor Code of the Russian Federation it is clear that the conditions contained in h.ch. 1 and 2 of this article must be agreed by the parties in the employment contract. As an additional guarantee of the employee's rights in the event that, when concluding an employment contract, it did not include any information and (or) conditions provided for by the Labor Code of the Russian Federation, the legislator established special rule, according to which such employment contracts are not non-concluded and cannot be terminated. Moreover, in accordance with Part 3 of Art. 57 of the Labor Code of the Russian Federation, the missing information is entered directly into the text of the employment contract, and the missing conditions are determined by the appendix to the employment contract or by a separate agreement of the parties concluded in writing which are an integral part of the employment contract.

Labor discipline and work schedule: concepts, methods of support, types of regulatory legal acts.

Discipline of work- it is mandatory for all employees to comply with the rules of conduct determined in accordance with the Labor Code, other federal laws, collective bargaining agreements, agreements, local regulations, labor contracts (Article 189 of the Labor Code of the Russian Federation).

1. As one of the basic principles of labor law - ensuring the fulfillment of the obligation to comply with labor discipline.

2. As an element of the employment relationship (the employee's obligation to labor relations obey the labor discipline of this production, the rules of the internal labor schedule).

3. As actual behavior, that is, the level of observance of labor discipline by all employees in a particular organization (this level can be high, medium or low).

4. As an institution of labor law (a system of legal norms governing the internal labor schedule, the obligations of the employee and the employer, establishing incentives for conscientious work and measures of responsibility for violations of labor discipline, as well as the procedure for their application).

The discipline of work differs in a subjective and objective sense.

Discipline of work in an objective sense- a set of legal norms aimed at maintaining a certain legal order in the organization.

Discipline of work in a subjective sense- the unswerving fulfillment by the employee of his duties under the employment contract and the rules of the internal labor schedule.

Basic concepts and directions public policy in the field of labor protection.

In a broad sense, labor protection Is a system for preserving the life and health of workers in the process of work, which includes legal, socio-economic, organizational and technical, sanitary and hygienic, treatment and prophylactic, rehabilitation and other measures (part 1 of article 290 of the Labor Code of the Russian Federation).

In the narrow sense, labor protection Is a legal institution that unites norms directly aimed at ensuring working conditions that are safe for the life and health of employees.

1) norms and principles of state policy in the field of labor protection;

2) rules of state management of labor protection;

3) the employee's right to labor protection and his guarantees;

4) norms for ensuring safe environment and labor protection by the employer, including preventive supervision and investigation of industrial accidents;

5) rules on safety and industrial sanitation, system of occupational safety standards (SSBT);

6) special labor protection standards for certain categories of employees.

In Art. 210 TC formulated the main directions of state policy in the field of labor protection, which are specified in the norms governing labor protection. They include:

♦ ensuring the priority of preserving the life and health of employees;

♦ adoption and implementation of regulations in the field of labor protection, as well as federal, departmental and territorial targeted programs improvement of working conditions and labor protection;

♦ public administration labor protection;

♦ state supervision and control over compliance with labor protection requirements;

♦ assistance to public control over labor protection;

♦ state examination of working conditions;

♦ investigation and registration of industrial accidents and occupational diseases;

♦ establishment of the procedure for attestation of workplaces in terms of working conditions and the procedure for confirming the compliance of the organization of work on labor protection with state regulatory requirements for labor protection;

♦ protection of the legitimate interests of workers who have suffered from industrial accidents and occupational diseases, as well as their family members (on the basis of compulsory social insurance against industrial accidents and occupational diseases);

♦ establishment of compensation for hard work and work with harmful or hazardous working conditions;

♦ participation of the state in financing labor protection measures;

♦ pursuing an effective tax policy that stimulates the creation of safe working conditions and the development (introduction) of safe equipment and technologies, the production of personal and collective protection equipment for workers, etc.

Funding for measures to improve working conditions and labor protection is carried out at the expense of the federal, regional and local budgets of the Russian Federation, extra-budgetary sources in the manner prescribed by law. It can also be carried out through voluntary contributions from organizations and individuals.

Financing of these activities by employers (with the exception of state unitary enterprises and federal institutions) is carried out in the amount of at least 0.2% of the cost of production of products (works, services).

Employees do not bear the cost of financing measures to improve working conditions and safety (Article 226 of the Labor Code).

Labor protection is an element of the employee's labor relationship with the employer. By entering into an employment contract, both parties acquire a wide range of mutual rights and obligations related to ensuring healthy and safe working conditions.

Forms of remuneration.

This vacation has many legal nuances. Employee personnel service or the dismissed employee himself may have questions about this.

For example, how many applications do you need to write to be dismissed on this basis? What is the date of dismissal? How to properly issue a dismissal on such a basis?

We will get answers to these and many other questions later.

When this situation occurs

Dismissal on the specified grounds is right, but not the responsibility of the head of the enterprise. In addition, if the employee wants to go on vacation, and then quit, the following rules must be observed:

The employee quits on on their own or by agreement of the parties. If the contract is terminated for the reasons specified in Article 81 of the Labor Code, if the employee has committed intentional actions (theft, being in a state of alcoholic intoxication), dismissal is impossible.
The employee must personally apply with such a statement.
In addition to the application, such a dismissal procedure may be provided for by the conclusion supplementary agreement on the granting of such leave.
The employee's vacation time should preferably coincide with the schedule. Otherwise, the manager may not provide it, but, of course, the employee cannot be denied the dismissal. And on the contrary, if the employee is entitled to leave according to the schedule and this time has come, the employee decided to quit after him, the manager has no right to refuse.

There is one more nuance: an employee can pick up your application only until the start of the rest. If an employee submits a relevant application while on vacation, it will not be legally binding.

But what if the employee changed his mind about quitting and the employer is not against continuing to cooperate with him? In this case, two options are possible.

Situation. The employee received a work book in his hands and went on vacation. Then you should either recognize the dismissal record as invalid (which is difficult to issue), or hire the employee again. In this case, the record of employment in the work book can be made only after leaving the vacation, exactly as the application from him for employment will be accepted at the same time.

Features of registration of a vacation with subsequent dismissal covered in the following video tutorial:

Step-by-step instructions for this procedure

The dismissal procedure consists of next steps:

An employee writes an application for a vacation;
The employer draws up an order;
The employee is introduced to him. It should be noted that there can be only one order. The employee signs, confirming the familiarization;
The accounting department calculates and compensates (payments due to the employee);
Before going on vacation, a calculation is made and all required documents directly related to work;
The employee signs the receipt these documents in the log book, personal card.

For vacation followed by dismissal, you first need to write a statement. How many statements can there be? Should I write statements on each issue separately?

Legislatively in Article 127 of the Code unambiguously indicated that "leave is granted at the written request of the employee, unused leave may be granted with subsequent dismissal." Accordingly, it turns out that there can be one statement.

It is enough for an employee to submit an application with the following content: “I ask you to provide another vacation for (number) days with subsequent dismissal. Date, date ".

If one statement can be made, then there can be two orders in connection. The first, the order on granting leave in the form of t-6, the second - on dismissal, the form of which is also approved by the State Statistics Committee of the t-8. However, there is no mandatory rule by law to use uniform forms.

The manager can arrange vacation and dismissal in one document.

An appropriate entry on the termination of the contractual relationship should be made in the work book.

Before an employee leaves on vacation, a calculation must be made with him and all documents related to work must be provided: a work book, for the last two years on demand, a certificate for calculating benefits and other copies of documents that relate directly to work.

If you have not registered an organization yet, then easiest do it with online services that will help you generate all the necessary documents for free: If you already have an organization, and you are thinking about how to facilitate and automate accounting and reporting, then the following online services come to the rescue, which will completely replace the accountant in your company and save a lot money and time. All reports are generated automatically, signed electronic signature and is sent automatically online. It is ideal for individual entrepreneurs or LLC on the USN, UTII, PSN, TS, OSNO.
Everything happens in a few clicks, without queues and stress. Try it and you will be surprised how easy it became!

Registration of a work book

Since the last day of rest will be considered the day of dismissal, this date should be indicated in the employee's work book.
The grounds for dismissal are made in strict accordance with the order of resignation. In other words, if in the order the reason for dismissal appears as an agreement of the parties, then this basis will be noted in the work book.

Although the date of dismissal is indicated as the last day of rest, all documents, including the labor one, must be issued before it occurs. Requirement of the decree of the government of the Russian Federation of №225 from 16.04. 2003 must be executed. It concerns the fact that the employee, upon receipt work book on hands must sign in his personal card, order of dismissal and the book of accounting of work books.

Upon dismissal at will in the work book, you can observe the following entry (a reference to the article is required): “The employment contract was terminated at the request of the employee, paragraph 3 of Art. 77 of the Labor Code of the Russian Federation ".

If the dismissal is made for other reasons, reference is made to the relevant article of the Labor Code. In the column "Foundation" it is obligatory indication of requisites grounds for termination (order).

Attention! Only data on dismissal are entered in the work book. Information about the provision of vacation is not indicated in it.

Adequate payments including all tax and insurance premiums

The dismissed employee must be paid all due to him amounts:

Compensation for unused vacation(in the event that the vacation is not fully provided).
Wage.
Severance pay (if provided for by the collective agreement or agreement between the parties).

If the dismissed person decided to go on vacation with subsequent dismissal, then he is given leave in full, that is, in the amount of 28 days. But only the days for which the dismissed employee worked in the current year will be payable.

For example, an employee applied for, but actually worked for only 4 months. In this case, the vacation will be provided in full, but payment will only be due in proportion to the months worked.

An employee, upon dismissal, may not take a day off. Then he is entitled to compensation. The calculation takes into account all payments for the last 12 months, with the exception of vacation pay and bonuses that are not taken into account (for example, payments for anniversaries).

An employee can go on vacation even if he previously took him off. Here, the vacation will be provided in advance, and when calculating by the accountant it will be withheld.

How to make calculations correctly

The employee went on vacation, followed by dismissal on May 25, 2015. However, she did not take 10 days of vacation. Let's calculate the amount of vacation pay, if we know that in the period from May 25, 2014 to March 25, 2015, she fully worked for 11 months, from February 02 to February 09, 2015 she was on sick leave. The total amount paid by the employee is 340,000 rubles.

We will produce calculation due compensation.

Let's make a calculation calendar days in the period. For 11 fully worked days, it is 320.11 days (29.3 days x 11 months = 320.11 days). For February 2015 - (21: 28x29.3 = 21.97).

The total number of days was 342.08 days (320.11 days + 21.97 days).

Now let's define. It will be 993.91 rubles (340,000 rubles: 342.08 days).

The amount of compensation for unused vacation will be 9,939.10 rubles (993.91 rubles x 10 days of unused vacation = 9,939.10 rubles.

It should be borne in mind that the collective agreement or agreement between the parties may provide for additional payments in connection with the termination of the contract.

As already mentioned, if the agreement or the rules of the organization provide additional compensation upon termination of an employment contract, taxation takes into account only amounts exceeding three times average earnings, for the regions of the Far North sixfold. This rule came into force in 2015.

Even if no additional compensation is provided to the employee, the employee must receive a calculation.

It includes:

Salary and vacation pay.
Holds, if any.

Personal income tax is withheld from the indicated amounts. Upon dismissal, the employer transfers the tax no later than the first day of the start of the vacation.

The nuances when registering this type of vacation are set out in the following video:

Sick leave during such a vacation

A worker may get sick while on vacation before being fired. However, this fact does not in any way affect the duration of the vacation. In this case, neither the date of dismissal nor the duration of the leave will change, since the employment relationship with the employee has been terminated. The employer only has to pay the submitted one.

IMPORTANT! The Social Insurance Fund has launched a project, according to which benefits for temporary disability and in connection with maternity are calculated and paid directly by the Fund. So far, 14 regions are participating in this project. The action of the program is planned until December 2015. Based on the results of the project, a decision will be made on further actions in this direction.

Otherwise, the procedure for calculating and paying sick leave has not changed.

If, nevertheless, an employee falls ill during vacation, he can submit to the employer sick leave for payment. Payment on it will be made the next day the issuance of wages.

To change the place of work is the right of every citizen, guaranteed to him by law, as well as the right to rest. Situations in which an employee decides to quit without going to work after a vacation raise a lot of questions from both employees and employers.

To avoid violating the rights of both parties, and to avoid further consequences, you should find out which stages of the dismissal procedure must be followed. The employee must understand how to draw up an application for a vacation followed by dismissal of his own free will, and the employer must understand how to properly draw up documents if the dismissal of his employee coincided with going on vacation.

The legislation strictly regulates issues that are related to labor relations... Every employer is obliged to comply with the provisions of the personnel:

The Constitution of Russia;
Labor Code;
The Tax Code;
other regulations related to the labor sphere.

The same documents give responsibilities and employees. Failure to comply with legal provisions leads to proceedings in labor inspection and courts, according to the Code of Administrative Offenses of the Russian Federation.

Vacation + dismissal

The rights enshrined in the Constitution to rest and work of citizens are concretized in the Labor Code. A separate chapter is devoted to each of the procedures in it. The subtleties of the dismissal process are described in Chapter 13, and the procedure for granting vacations is described in Chapter 19.

According to the Labor Code, employees are entitled to several types of leave:

basic;
additional, in which the payment is saved;
additional not paid.

This right can be exercised after the term of service in one organization reaches six months. Some categories of employees are obliged to provide leave on demand without reaching the established length of service (Article 122 of the Labor Code).

These include:

employees under the age of 18;
women during pregnancy;
staff caring for children, if the latter is under three years of age.

The vacation period with the main annual rest is 28 days. Employers are required to provide it to each employee annually. If the employee, for some reason, did not manage to walk the due date, then the unused days can be transferred to the next working year.

In addition to the main work rest, certain categories of persons need to be allocated additional paid vacation days.

This rule applies to:

employees employed in hazardous industries (Article 117);
workers engaged in work involving a danger to life (Art. 117);
personnel performing special types of work (art. 118);
persons whose working day is not standardized (Article 119);
women during pregnancy and caring for children under three years of age (Article 255);
students in full-time and part-time programs (Articles 173-176).

In addition, each of the members labor collective available rest "at their own expense" after six months of service, which is provided by the employer without calculating vacation pay.

Article 127 of the Labor Code of the Russian Federation allows the dismissal of an employee after any of the above types of leave. In this case, the rest can be both current and unused in previous periods.

The only limitation is dismissal "under the article", in which an employee is found guilty of violating labor laws and his guilty actions are revealed.

Common violations include:

missing work for no reason;
non-fulfillment or improper fulfillment of direct duties;
offenses against the company, resulting in damage;
unacceptable state in work time(alcohol or drug intoxication), etc.

Another reason can be recognized as a violation if it is mentioned in the employment contract, local acts or government documents.

It is important to remember that all unused employee vacations must either actually be granted to the employee before dismissal, or compensated.

Vacation registration

According to the legally approved labor discipline, the employer is obliged to organize the rest of the personnel.

For this, a schedule of the T-7 form is drawn up annually, which takes into account:

the number of days of rest assigned to each employee;
the order of vacation periods;
current changes in the timing of vacations.

At the same time, each enterprise should have a vacation journal, where information about all documents is entered, on the basis of which current adjustments are made to the schedule.

Vacation rules followed by dismissal

In order to take a vacation and not return to work, an employee just needs to fill out an application and notify the employer about his plans within the established time frame - two weeks before leaving.

At the same time, the employee is not obliged to comply with the established schedule, and can apply for vacation and dismissal at any time.

before the onset of their turn to rest;
at the time of leaving;
during the rest period;
upon returning from it.

For the employer, the date of application is important, as it can affect his subsequent actions:

Refusal to provide.

The employer has the right to refuse vacation if the employee applied with an application outside the onset of the vacation period approved in the schedule. For example, if the situation at the enterprise requires the presence of an employee. Unused leave will be either partially approved or compensated to the employee in full at the time of dismissal, and the allotted 14 days will have to be worked out, as required by law. ()

Registration of a new employee.

If the application is written outside the schedule, then the employer has the right to accept a new employee for the vacated position as soon as the previous one goes to rest. If the rest came on schedule, and at the same time an application for dismissal was received, then the employer will have to wait for the end of the last vacation before registering a new person for a vacant position.

Change of decision.

When registering, it is important to comply with the deadlines. If the employee changes his mind about quitting, he can only mark his decision by taking the application before leaving to rest. This is permissible only if his position is vacant and another employee has not yet been transferred to his place.

Thus, according to the law, dismissal can be implemented in three ways:

Vacation, with dismissal on return from it.

In this case, the vacation is carried out according to the schedule, and the application for dismissal is submitted on the date following the end of the vacation.

Registration of leave with further dismissal.

Vacation and dismissal applications are submitted at the same time.

Dismissal with compensation.

The employee submits an application for dismissal with compensation for the prescribed vacation days. In fact, vacation is not provided, but upon dismissal it is paid monetary equivalent vacation days.

If the employment contract has come to an end, and the employee has not taken part of the vacation days, he also has the right to arrange a vacation with further dismissal, despite the fact that the latter goes beyond the terms set by the contract. The last working day in this case will be the last vacation day (Article 127 of the Labor Code).

Registration procedure

For the employer, the process of issuing an employee's leave with further dismissal is a certain difficulty. This is due to the fact that you have to simultaneously deal with two types of procedures, linking them in time. The administration of enterprises often tries to avoid such a wording, suggesting that employees first take a vacation and then quit, or replace the vacation with compensation. However, it will be possible to facilitate the registration only with a mutual agreement between the employer and the employee. This is not always possible. Therefore, you should streamline the stages of the procedure, take into account the necessary nuances of the content required documents and the timing of their registration.

Procedure steps

Considering that non-compliance labor standards entails fines and possible litigation, and violations in the registration of accounting documents can attract not only labor, but also tax office, you should carefully follow the sequence of actions when dismissing employees going on vacation.

It is important to remember that the employer himself cannot fire staff if the latter is on work rest at that moment.

Stages of registration:

Drawing up a statement.
Drawing up an order.
Records in accounting documents.
Final settlement.

By following all the steps correctly, you can avoid troubles with labor supervision and tax authorities.

Statement

The first step, which starts the vacation procedure with further dismissal, is a statement from the employee. There is no standard form for this document, however, each organization has the right to develop an application form and sample, and use them in their work.

The staff member can submit two separate requests, or combine the two requests in one text.

Before you write a statement, you should know what requirements regarding its design and content are mandatory.

These include:

registration of the "header" of the document, which indicates the name of the person to whom the application is addressed, indicating his position;
the position and full name of the applicant are also registered there;
the main text of the application must simultaneously contain two requests: for the provision of vacation, indicating the period, as well as for dismissal, indicating its reason;
the statement ends with the signature of the employee and the date the document was drawn up.

To write the application correctly, you should find out in advance how many unused vacation days the employee has at the time of drawing up the application. This information can be obtained from the Human Resources Department.

If the employee does not have any claims to the employer, then as the reason for dismissal, most often "own desire" is indicated. If the employee leaves, due to a violation of his rights, then the statement must be drawn up more fully, including in the text a description of the claims and the evidentiary base. In addition, you will need to draw up a list of documents confirming the facts and attach their originals or copies to the application.

Nuance: if an employee decided to quit at the moment when, according to the schedule, his work rest began, he does not need to draw up a separate application for vacation, it is enough to file a request for dismissal.

Visually demonstrating to employees how to fill out an application will help:

Drawing up a form and a sample application for leave with subsequent dismissal will speed up the work of HR specialists.

Order

Like an employee, the employer has the opportunity to choose how to correctly draw up an order for an employee's vacation with subsequent dismissal: two separate documents, or one. Both methods are legal.

In the first case, it is enough to use unified forms. For the order for the leave of employees, the sample 2016-2017 () was approved, and for the dismissal of employees - ().

The second option uses a form developed by the administration independently. It acquires legal force if it is based on GOST R 15489-1-2007 and approved by the management of the organization.

Requirements for design and content:

the order must contain the name of the enterprise and the name of the document itself;
the order must be numbered and dated;
the main text is a list of actions of various services involved in the procedure, indicating the dates of each stage;
at the end of the instructions, you should list the grounds that formed the basis for the preparation of the order;
the document must be endorsed by the head and have a place for the employee's signature, which is affixed to the order at the time of acquaintance.

It is important to list in the document all stages of the procedure, including the granting of leave, termination of the contract with the employee, and the calculation. In each of the points, the dates of execution and the responsible persons should be reflected.

The developed sample of the order takes on the status of a unified form and is further used in all cases when the staff uses the right to quit immediately after their work rest.

The procedure for the calculation and execution of documents

When drawing up documents and making settlements with an employee who decided to quit after vacation, the legally established procedure should be observed.

After issuing the order, the accounting department is obliged to fully pay the employee all types of earnings due:

basic salary;
awards;
allowances if the employee worked overtime;
vacation pay and compensation, if any.

In turn, the HR department is responsible for providing:

accounting department reference-calculation on the number of vacation days, and days that need to be compensated;
registration of the employee's work book;
issuance of personnel documents.

The coordinated work of the services will make it possible to properly formalize the dismissal.

Focus on timing

It is important to correctly determine the time when it is supposed to settle with the employee according to the TC.

The calculations will be based on:

vacation start date;
date of dismissal;
last day of actual attendance at work.

If an employee has issued an application for a vacation, and further dismissal, then the last day of rest will be considered the date of termination of employment agreements. The actual day when the contract expires will be the last day on which the employee performed his duties. This difference in dates is the most confusing and confusing calculation.

According to Article 84 of the Labor Code, settlement with an employee is made on the day of dismissal, but according to the law, upon vacation with subsequent dismissal, this date is the last day of rest (Article 127 of the Labor Code). It turns out that the employee must return to work and receive severance pay... This approach, in the case where the dismissal immediately follows the vacation, is incorrect.

IMPORTANT: In this case, it is necessary to make a full calculation on the day that is actually the last working day, that is, before the start of the vacation. The same date is the day when the work book and other personnel documentation should be handed over to the employee.

It happens that the last day before vacation coincides with a weekend or holiday. In this case, the provision of a work book is prohibited by law in advance. It should be rescheduled to the first business day following the start date of the vacation. Despite the fact that the employee is already on vacation, it is necessary to notify him in writing about the need to pick up personnel documents.

Records in documents

When a HR specialist draws up an entry in the work book, he must indicate the last day of the employee's vacation as the day of dismissal.

This date will not change, even if the employee goes on sick leave while on vacation. Unlike usual calculations, upon subsequent dismissal, the employer is exempted from the need to extend the employee's rest for the period confirmed by the certificate of incapacity for work.

If, however, during the rest period public holidays, then they should be taken into account, since they shift the end of the vacation, and hence the date of dismissal, which is entered in the documents.

Subtleties of calculation

To settle with an employee on the basis of an independently developed order, you should create separate notes-calculations: T-60 and T-61.

The first, concerning vacation pay, indicates the settlement period and the total earnings for it. Payouts are calculated by multiplying the average daily earnings by the number of days off.

The second, related to the full calculation, includes:

order details;
calculation period;
the number of days remaining from the vacation and subject to compensation;
earnings for the reported billing period.

Based on these data, the average daily earnings are determined, as well as the amount of compensation due upon dismissal. Moreover, if the employee has used up all the vacation days, then there is no need to pay compensation.

If the employee, before leaving, decided to partly take a vacation, then the accounting department will have no choice but to calculate the amount of compensation for the remaining days and pay them upon dismissal.

When calculating, you should take into account everything assigned to the employee funds, minus the deductions required by the law.

Nuances

There are pitfalls in vacation followed by dismissal.

Working off.

A common question when leaving with subsequent dismissal is working off. Employees believe they must work 14 working days by law. The Labor Code does not oblige employees to work off, but only sets the deadlines within which it is necessary to warn the management of the desire to quit.

If an employee has earned a leave of more than two weeks, then the period established by law will be respected, and the employee will be able to quit without work.

If the vacation before dismissal is shorter, you should find out with the employer whether you need to work 2 weeks. This issue is usually resolved by mutual agreement. The manager can release the employee from this obligation.

Calculation based on the order.

It is important to remember that the order, if it is developed and introduced into the company's document flow, is approved by the management. Otherwise, Rostrud will have complaints about the lack of filling out unified forms.

Vacation pay and full settlement.

By law, the employee is required to provide vacation pay three days before the start of work rest. If leave is followed by dismissal, then payroll should be paid on the last working day. In order not to violate the law, payments should be made in two stages, or a general settlement should be made three days before the start of the employee's rest.

6-NDFL report.

Innovations, thanks to which the 6-NDFL report on employees has become mandatory for submission to tax office, and his absence is punishable by blocking the company's bank accounts, the FTS was forced to explain to accountants how to correctly reflect data on employees who went on vacation and then quit. it was determined that the transfer of taxes for an employee does not depend on when he quit. The date of payment of personal income tax for him will remain the last day of the month that he worked out.

Thus, the tax withholding date will coincide with the date the employee actually received the income, and the tax transfer date will be the last day of the month in which the final settlement was made with the employee.

Sick leave.

Despite the fact that the employer is not obliged to extend the vacation of the employee, the contractual relationship with whom has terminated, the employer remains obliged to pay compensation for the certificate of incapacity for work. At the same time, no changes are required either in the work book or in the vacation schedule. The payment is a kind of monetary compensation for unused vacation days.

All these subtleties should be taken into account when issuing a vacation with subsequent dismissal. This will allow the employer and employee to disperse peacefully and without mutual claims.

Every employee has the right to vacation. But after the rest, the employee may no longer return to work, having previously agreed with the employer the vacation with subsequent dismissal. In our consultation, we will remind you what vacations are, and tell you how you can combine vacation and dismissal.

What vacations are there

The Labor Code provides, in particular, the following:

annual paid leave (Article 114 of the Labor Code of the Russian Federation), which is basic (Article 115 of the Labor Code of the Russian Federation) and additional (Article 116 - Article 119 of the Labor Code of the Russian Federation);
unpaid leave (Article 128 of the Labor Code of the Russian Federation);
maternity leave (Article 255 of the Labor Code of the Russian Federation);
study leave (Art. 173-Art. 176 of the Labor Code of the Russian Federation).

Unlike other holidays, annual paid leave that is not used on time can be carried over to the future, and in case of dismissal, it is subject to compensation to the employee.

Annual paid vacation

Every person who works under an employment contract has the right to leave (part 5 of article 37 of the Constitution of the Russian Federation, article 21 of the Labor Code of the Russian Federation).

At the same time, for the period of the next vacation, the employee, in accordance with labor legislation, retains his place of work (position), as well as average earnings (Article 114 of the Labor Code of the Russian Federation).

Paid leave should be provided to the employee regardless of his place of work, shift shifts, form of remuneration, position held, term of the employment contract, organizational and legal form of the employer, etc. Therefore, vacations are provided including to those who work:

concurrently (Article 287 of the Labor Code of the Russian Federation);
on a part-time basis (Article 93 of the Labor Code of the Russian Federation);
at home (Article 310 of the Labor Code of the Russian Federation);
remotely (Article 312.4 of the Labor Code of the Russian Federation).

At the same time, vacation is not provided to persons with whom civil law contracts have been concluded (Article 11 of the Labor Code of the Russian Federation).

Another paid vacation: the procedure for providing

The working year for which the employee is granted annual paid leave is counted from the date the employee entered work, and not from January 1 (Article 123 of the Labor Code of the Russian Federation).

As for the first year of employment with a new employer, the employee gets the right to use the leave after 6 months. But in agreement with the management, a newly-made employee can go on vacation earlier (Article 122 of the Labor Code of the Russian Federation).

The next paid vacation can be granted to the employee at any time during calendar year in accordance with (Article 122 of the Labor Code of the Russian Federation). Each employer approves such a schedule no later than 2 weeks before the onset of the calendar year. This means that no later than December 17 of the current year, a vacation schedule for the next year must be drawn up and approved (Article 123 of the Labor Code of the Russian Federation).

If the employee is going on vacation according to the schedule, then it is not necessary to take an application from him for the next vacation. In this case, it is necessary 2 weeks before the start of the employee's vacation or earlier to send him a vacation notice against signature (Article 123 of the Labor Code of the Russian Federation). There is no approved form for such a notification, so the employer has the right to decide how to notify the employee (Letter of Rostrud dated July 30, 2014 No. 1693-6-1).

In addition to the notification, it will be necessary to issue an order on granting leave to the employee or employees in the form No. T-6 or No. T-6a, respectively (approved by the Resolution of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1).

The vacation must be paid no later than 3 calendar days before the start of the vacation (Article 136 of the Labor Code of the Russian Federation).

Extension and postponement of annual paid leave

The Labor Code of the Russian Federation provides for several cases when the vacation must be extended or postponed, taking into account the wishes of the employee. This applies to situations when an employee, during his annual leave (Article 124 of the Labor Code of the Russian Federation):

sick or injured. In this case, the allowance for the days of temporary disability is paid to the employee in general order(Letter of the FSS RF dated 05.06.2007 No. 02-13 / 07-4830);
fulfilled public duties under which the legislation provides for exemption from work. For example, he was a juror in court (Art. 10, Clause 3, Art. 11 of the Law of 20.08.2004 No. 113-FZ).

If an employee, while on vacation, immediately notified his employer of illness or fulfillment of state duties, then his vacation can be automatically extended by the appropriate number of days (clause 18 of the Rules on regular and additional vacations, approved by the NKT of the USSR on April 30, 1930, No. 169) ... At the same time, there is no need to issue a separate renewal order. As a result, the employee will leave for work later than the originally set vacation end date.

If the employee goes to work in accordance with the vacation schedule and only then informs the employer, for example, that he was ill, then it will be necessary to agree with him on the transfer of part of the vacation to another period. The employee will have to write an application for the transfer of vacation.

By the way, if the sick leave was issued in connection with the need to care for a sick family member, then the leave for the period of incapacity for work is not extended or transferred (clauses 40, 41 of the Order to the Order of the Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n, Rostrud Letter dated 06/01/2012 No. PG / 4629-6-1).

What is leave followed by dismissal

Leave with subsequent dismissal is granted to the employee on the basis of his written application. In this case, the last day of vacation will be considered the day of dismissal.

Granting leave before dismissal to an employee is a right, not an obligation, of the employer. Of course, this does not apply to the case when the employee's next vacation before dismissal is provided for by the vacation schedule.

Vacations with subsequent dismissal are not granted to an employee whose labor contract is terminated for his guilty actions.

Let us also recall that when granting leave with subsequent dismissal, the employee has the right to withdraw his letter of dismissal before the day of the start of the vacation, if another employee is not invited to his place by way of transfer.

Leave on dismissal

The employee's right to leave upon dismissal is enshrined in Art. 127 of the Labor Code of the Russian Federation. This right can be exercised:

in the form of providing leave with subsequent dismissal;
in the form of compensation for unused vacation.

In any case, all days of unused vacations of the employee at the time of dismissal must be provided in kind or compensated for in money.

The main paid leave, which is given to the employee annually for 28 calendar days, cannot be compensated for in money if the employee continues to work. This is how it differs from additional vacation. After all, to pay monetary compensation for an additional paid vacation, an employee who did not leave the organization had to submit a written application to the employer with a request to replace the additional vacation with money. But when an employee is fired, the situation changes. The employee should not write any applications for the payment of compensation for both the main and additional leave upon dismissal, because the payment of non-vacation leave upon termination of the contract is an unconditional obligation of the employer.

The main question that stands when presenting a vacation with subsequent dismissal is how to properly formalize parting with an employee in this case.

Vacation followed by dismissal: how to properly arrange

In the time sheet according to the form No. T-12 or No. T-13 (approved by the Resolution of the State Statistics Committee of 01/05/2004 No. 1), the days of leave preceding dismissal are reflected as ordinary "vacation" days:

if this is the main paid vacation, then the letter code "OT" or the digital code "09" is indicated;
if the employee is on additional paid leave, then in the report card you need to put "OD" or indicate the digital code "10".

If vacation time falls on weekends holidays, then they do not reduce the duration of the vacation, and therefore are reflected in the report card as a regular weekend with the letter code "B", which also corresponds to the digital code "26".

How to calculate the number of vacation days upon dismissal

Step 1: Calculate the employee's length of service with the employer.

Step 2: Determine the number of vacation days that the employee is entitled to for the entire period of his work.

Step 3: Determine the number of vacation days already taken by the employee.

Step 1: calculate the length of service with the employer in months

The answer to the question of what is included in the length of service, which gives the right to annual paid vacations, is contained in Art. 121 of the Labor Code of the Russian Federation.

Work experience, which gives the right to the main paid leave entitles you to basic paid leave
include:	not included:
actual work time	the time an employee is absent from work without good reason, incl. in case of suspension from work under Art. 76 of the Labor Code of the Russian Federation
the time when the employee did not actually work, but he retained his place of work (position) (for example, the time of annual leave or maternity leave, non-working holidays and weekends)	time of parental leave, except when the employee works on a part-time basis
time of forced absenteeism in case of illegal dismissal or suspension from work, if in the future the employee is reinstated at work	vacation time at own expense, exceeding in aggregate 14 calendar days per working year
the period of suspension from work of an employee who has not passed the mandatory medical examination through no fault of his own
time of "administrative" leave at the request of employees. At the same time, during the working year, the total duration of vacations at own expense should not exceed 14 calendar days.

We also draw your attention to the fact that the length of service, which gives the right to additional annual paid leave for "harmful", includes only actually worked hours in harmful and dangerous conditions labor.

When calculating the length of service in months, surpluses of less than half a month are excluded from the calculation, and if more than half a month, they are rounded up to a full month (clause 35 of the Rules on regular and additional vacations, approved by the National Committee of the USSR on April 30, 1930, No. 169).

For example, an employee was hired on 03/12/2018, the date of dismissal is 05/15/2019.

The number of full months for the period from 03/12/2018 to 05/11/2019 is 14. Surplus in the amount of 4 days (from 05/12/2019 to 05/15/2019) are discarded. In total, the total length of service with the employer is 14 months.

Step 2: determine the number of vacation days that the employee is entitled to for the entire period of his work

The number of vacation days in calendar days that are due to the employee for the period of his work with the employer (K p) is determined by the formula:

K n = K g / 12 * M,

where: K g - the number of vacation days due to the employee for the working year;

M - length of service with the employer in months, found in Step 1.

The resulting number of days may not be an integer number. If the employer decides to round off the number of days, this must always be done in favor of the employee, and not according to the rules of arithmetic (Letter of the Ministry of Health and Social Development dated 07.12.2005 No. 4334-17). This means, for example, that a non-integer number of vacation days 37.3 can be further used in calculations, but if the employer decided to round it up, then the number of days will be 38, and by 37 days.

Step 3: determine the number of vacation days

Based on information about the holidays already used by the employee for the entire period of his work with the employer, it is determined total amount vacation days that the employee has already rested.

Step 4: calculate the number of unused vacation days

The number of vacation days that the employee did not use at the time of dismissal, and for which he is entitled to compensation, (K n) is determined by the formula:

K n = K p - K and,

where: K p - the number of vacation days due to the employee for the entire period of his work with the employer, which was found in Step 2;

K and - the number of vacation days used at the time of dismissal, determined in Step 3.

How to calculate compensation for unused vacation

The number of vacation days determined in Step 4 that were not used by the employee at the time of dismissal must be multiplied by the employee's average daily earnings. This earnings is calculated in the usual manner established for calculating vacation pay by Government Decree No. 922 of 24.12.2007.

Deduction for unworked vacation days upon dismissal

There are situations when an employee at the time of dismissal used more vacation days than he should be. In this case, it is necessary to make a deduction for the vacation used in advance upon dismissal.

The employer's right to withhold excess received vacation pay is provided for in Art. 137 of the Labor Code of the Russian Federation. It must be borne in mind that in some cases it will not be possible to keep unworked vacation days. This applies to cases when an employee leaves, for example, in connection with the liquidation of an organization, conscription and in other cases listed in Art. 137 of the Labor Code of the Russian Federation.

In the general case, if an employee took a vacation in advance and quit, the employer withholds the amount of vacation pay from his wages. This deduction cannot exceed 20% of the payments due to the employee after withholding personal income tax (Article 138 of the Labor Code of the Russian Federation).

If the amount of deduction exceeds 20% or the employee is not paid other amounts and there is simply nothing to withhold excess vacation pay, the employee can return the debt voluntarily. To demand these amounts from him, and even more so in judicial procedure, illegally (Article 137 of the Labor Code of the Russian Federation).

Vacation followed by dismissal: when to calculate

By general rule settlement with the employee is made on the day of dismissal, which is the last day of work. However, when granting leave with subsequent dismissal, a different procedure applies. Despite the fact that the last day of work of the employee will be the day of the end of his vacation, the settlement with the employee must be made before the start of the vacation. The rationale for this approach boils down to the fact that at the end of the vacation, the parties will no longer be bound by obligations. Therefore, on the last working day preceding the day of going on vacation, the employer must make the final settlement with the employee, as well as issue him a work book and other documents related to work (Rostrud Letter dated 12.24.2007 No. 5277-6-1).

Vacation followed by dismissal of your own free will

A situation is possible when an employee, being on annual paid leave or vacation at his own expense, decided to quit. The general rule applies to such employees - they need to notify the employer of their desire no later than 2 weeks in advance. In this case, this period will be calculated not from the moment the employee leaves for work, but in general order - from the day following the day the employer is notified. Therefore, if the duration of the vacation exceeds 14 calendar days, such an employee has the right to go to work on the day of dismissal in order to receive the final calculation and work book.

It is important to take into account that the employer does not have the right to call the employee from the vacation before its end (Article 125 of the Labor Code of the Russian Federation).

Dismissal after vacation of your own free will

Nothing changes if the employee decides to leave the employer after returning from vacation at his own expense. With the only difference that up to and including the day of dismissal, the employee must fulfill his labor duties during the notice period, unless, of course, the employer agrees to part with the employee early.

However, if unpaid leave is granted to an employee with subsequent dismissal, then it is advisable to make the calculation by analogy with the presentation of paid leave with subsequent dismissal, on the last working day preceding the employee leaving on leave at his own expense.

Sample application for vacation with subsequent dismissal

An employee who wants to go on vacation with subsequent dismissal submits a corresponding statement to his employer:

Order for granting leave with subsequent dismissal

An employer can use a self-developed form of order for granting leave with subsequent dismissal. If he uses unified forms of documents for labor accounting, then in order to obtain leave with subsequent dismissal, the employer will have to issue 2 orders:

granting leave (unified form No. T-6 or No. T-6a);
on termination of an employment contract (unified