Dismissal at your own request on sick leave. We dismiss during sick leave at our own request

How will the dismissal process proceed if a person writes an application and goes on sick leave, which happens quite often? And is it legally possible to fire a subordinate while he is sick and absent from work?

Application procedure

Article 80 of the Labor Code of the Russian Federation.

According to Article 80 of the Labor Code of the Russian Federation, the subordinate notifies the boss of dismissal at least 14 days before the termination of the contract. However, the law does not say whether a person must be able to work while working.

Important! If the person resigning wrote a letter of resignation and then unexpectedly went on sick leave, then the period of illness is included in the notice period of 14 days.

Even if the director ordered the employee to work for 2 weeks, and did not fire him in one day, then after recovery the person is not obliged to stay at work if he was sick for 14 days or more.

If the application is submitted before illness

The procedure for submitting an application and subsequent actions on the part of the enterprise does not differ from the usual:

A person writes a request to terminate the contract and sends it to the manager or the human resources department.
A decree is drawn up to terminate the employment relationship.
An employee goes on sick leave.
On the specified date, a dismissal order is issued.
If the subordinate does not have the opportunity to familiarize himself with the order, then they make a note that it is impossible to notify the person being dismissed.
Compensation is transferred to the dismissed person on his salary card.
The former employee is sent a request by registered mail to pick up the documents from the HR department.

If a person can go to the HR department on the last day of work, then compensation and documents are issued to him in the standard manner.

Important! If subordinates receive their wages at the cash desk, then the person being dismissed must be sent a demand to collect the money due to him.

Dismissal during illness

It is possible to write a request to terminate the contract and send it to management even if the person is already sick and does not go to work. The procedure for dismissal will be the same as when submitting a resignation document in person, but if the last working day falls during a period when the person is already healthy, then the manager may require him to work the remaining few days. If a quitter refuses and does not go to work, then the manager can fire him for absenteeism in accordance with paragraph 6a of part 1 of article 81 of the Labor Code of the Russian Federation.

Article 81 of the Labor Code of the Russian Federation.

Important! Regardless of when the contract was terminated, the employer is obliged to pay the employee all monetary compensation that is due upon leaving work.

Terms of dismissal

The manager does not have the right to dismiss an employee on a date other than the one indicated in the documents, even if he is sick. According to the law, the director cannot change the day of termination of the contract at his discretion if the person resigns of his own free will.

Even if an employee is sick for more than 14 days, the employer must still terminate the contract with him on the day specified in the resignation letter.

Important! If the termination of the employment relationship occurs by agreement of the parties, then the manager must wait for the person to recover.

Do I have to pay for a certificate of temporary incapacity for work?

If a person wrote a letter of resignation and went on sick leave or submitted a request for resignation when he was already sick, then the employer must pay for a certificate of temporary incapacity for work.

According to the law, monetary compensation must be issued for the period of illness if the date of opening the certificate of incapacity for work falls on the time when the person was still listed as an employee of this organization.

Will sick leave be paid if a person gets sick after termination of the contract?

It also happens that a person falls ill after leaving work. In accordance with Federal Law No. 255 of December 29, 2006, a former employee can receive monetary compensation for the period of his incapacity for work, but the following conditions must be met:

The person became disabled within 30 days from the date of termination of the contract with the employer.
The subordinate did not find a new job.
The employee provided sick leave no more than 6 months from the date of closure.
The person provided a Russian passport and work book.

After the employer receives a document confirming the employee’s temporary disability, he must schedule payment of compensation 10 days from that moment. The subordinate receives this compensation on the day the salaries are transferred to the employees.

Important! If the manager refuses to pay compensation, you can sue him or contact the labor inspectorate. According to the Federal Law “On the procedure for considering appeals from citizens of the Russian Federation,” the response must be sent to the applicant within a month.

If a subordinate was ill several times within 30 days after termination of the employment relationship, then the director must assign compensation for all certificates of incapacity for work that were issued during this period.

Dismissal of an employee during a period of temporary incapacity at the initiative of the employer is illegal. An exception is the case of voluntary dismissal or liquidation of the enterprise.

If an employee is sick, he cannot be dismissed during sick leave at the initiative of the company. This provision is enshrined in the norm of Article 81 of the Labor Code, the last paragraph of which says: “The dismissal of an employee at the initiative of the employer (except in the case of liquidation of the organization or termination of activities by an individual entrepreneur) is not allowed during the period of his temporary disability and while on vacation.” Thus, only the termination of the employer’s activities can become a legal basis for the dismissal of an employee during his illness at the initiative of the employer.

Therefore, in order to answer the question: “can they be fired on sick leave,” it is necessary to determine from whom the initiative for dismissal comes. In the practical activities of many companies, a situation often arises when an employee submits a resignation letter on his own initiative, but during the two-week notice of dismissal period provided by law, he unexpectedly falls ill and goes on sick leave. In such cases, the question becomes more relevant: will it be legal to dismiss an employee during the period of his temporary disability or not?

On your own initiative - dismissal without obstacles

If an employee submits an application in which he expresses a desire to terminate the employment relationship, then his dismissal during sick leave is possible, since the employment contract is terminated at the initiative of the employee, not the employer. A similar solution to the problem also applies to the termination of an employment contract by agreement of the parties. However, if the dismissal initiative comes from the employer and the employee falls ill on the day when the dismissal was planned, it can only be carried out after his recovery, since in such a situation the dismissal of an employee on sick leave is illegal. After the employee leaves sick leave, the employer is initially obliged to fill out a temporary disability certificate and only after that begin the dismissal procedure in accordance with the procedure established by law, that is:

document the reason for dismissal;
issue a dismissal order;
make a settlement with the employee;
issue a work book on the last day of work.

However, there are situations when the employer demands the employee to work before dismissal for a period equal to the time during which he was on sick leave. There is an explanation from the Federal Service for Labor and Employment on this matter. The letter explains that the employee has the right to warn the employer about the upcoming dismissal, both during the period of work and while he is on vacation or during illness. The day of dismissal may also fall on any of the specified periods, including possible dismissal on the last day of sick leave. Therefore, if the notice period for dismissal is 14 days, the employer must dismiss on the day indicated in the resignation letter.

What to do in case of prolonged illness of an employee

In practice, a situation may arise when an employee submitted a letter of resignation on his own initiative, but fell ill during the two-week notice period for dismissal. If he returns from sick leave before the expected day of dismissal, no problems will arise and the dismissal will be carried out on the day specified in the application. But the situation can develop in a different way, when a person does not have time to recover before the end of the specified two weeks. In such circumstances, the dismissal of an employee on sick leave is carried out on the date indicated in the application, since the employer does not have the right to change it without the consent of the employee. In this case, sick leave is paid after restoration of working capacity.

According to the law, when dismissing an employee, the employer must make a settlement with him and issue a work book on the last day of work requested. Thus, in a situation where an employee fell ill after submitting a resignation letter, but did not withdraw it, the organization must pay him on the day specified in the application. If, on the due date, the employee does not come to receive the work book and wages, he must be notified in writing of the need to appear for the work book or give permission to send it by mail. After sending the notice, you must wait for the employee to recover and dismiss him officially, making a payment and issuing documents. At the same time, the accountant needs to know whether it is necessary to pay for sick leave closed after the employee’s dismissal.

Payment of sick leave

If at the time of opening the sick leave, the person was officially an employee of the organization, then his payment should be made in the general manner, even if the closure of the sick leave occurs during the period when the employment relationship with the employee has already been terminated. Another important point is that by law the employer is obliged to pay sick leave to a dismissed employee for a certain period of time. A former employee has the right to pay for sick leave if it was issued within 30 calendar days after termination of the employment contract. However, in this case, he can only count on receiving 60 percent of average earnings.

Therefore, if a resigned employee after some time provides sick leave, opened within a 30-day period from the date of dismissal, the organization cannot refuse to pay for it. An employee has the right to present sick leave within six months from the date of recovery. Accordingly, even if the employee fell ill a week after dismissal, and months later came to receive benefits, the company will be required to make payment if the six-month period provided by law has not expired. To avoid violations of the law, every company should know how to behave in such situations, despite the fact that this happens quite rarely.

Dismissal and sick leave

According to Part 1 of Art. 80 of the Labor Code of the Russian Federation, an employee has the right to dismissal at any time convenient for him. As a general rule, he should notify the organization's administration about this 2 weeks before the date of dismissal.

Moreover, if an agreement is reached between the employee and the administration of the organization, then the employee can resign without prior notice or before the expiration of his term.

In practice, there are often cases when the date of dismissal falls during the employee’s illness or pregnancy. In this case, the right to dismissal cannot be limited due to the requirements of the same part 1 of Art. 80 Labor Code of the Russian Federation.

NOTE! It is impossible to dismiss an employee while on sick leave at the initiative of the organization’s administration for disciplinary violations or for other reasons (Part 5 of Article 81 of the Labor Code of the Russian Federation).

Also in practice, questions arise regarding the possibility of including a period of sick leave in the period allotted for notifying the administration of the organization. Analysis of the norms of Part 5 of Art. 81, art. 183 of the Labor Code of the Russian Federation gives a positive answer to this question. That is, within 2 weeks from the date of filing the application until the moment of actual dismissal, the employee can be not only at work, but also on vacation or on sick leave.

Guarantees for the employee and sick leave upon dismissal

According to Art. 183 of the Labor Code of the Russian Federation, in the event of illness or pregnancy, the employee is entitled to a monetary benefit, the obligation to pay which rests with the organization.

The fact of dismissal does not relieve the organization of the obligation to pay the employee sick leave, which is expressly stated in paragraph 1 of Art. 6 of the Law “On Compulsory Social Insurance...” dated December 29, 2006 No. 255-FZ. That is, the organization must continue to pay sick leave until the ability to work fully is restored, even if the person is no longer an employee of this organization.

When an employee’s ability to work cannot be restored (for example, when he is recognized as disabled), the organization is obliged to pay him sick leave for 4 consecutive months, which may fall both before and after the date of dismissal, as indicated by clause 3 of Art. 6 of Law No. 255-FZ.

NOTE! When undergoing further treatment in a sanatorium, the total period of payment for sick leave should not exceed 24 days; Moreover, the fact of dismissal does not increase or interrupt this period, as indicated by clause 2 of Art. 6 No. 255-FZ.

If an employee works on the basis of a fixed-term contract, the duration of which is less than 6 months, he can only claim payment for 75 days of sick leave, the duration of which is not increased or interrupted due to dismissal in accordance with clause 4 of Art. 3 of the specified Federal Law.

Sick leave pay after dismissal

Both current employees and those already dismissed from the organization can receive benefits while on sick leave. There is only one limitation: employees who fall ill within 1 month from the date of dismissal can count on receiving such benefits (Clause 2, Article 5 of Law No. 255-FZ).

IMPORTANT! In this case, the basis for dismissal does not matter for calculating benefits. This may be the desire of the employee, the initiative of the organization’s administration, etc.

The duration of sick pay for a dismissed or employed employee is the same. That is, an already unemployed employee of the organization who falls ill within 1 month after dismissal will also have to pay benefits until his health is restored. Exceptions to this rule provided for in paragraphs. 2-4 tbsp. 6 of Law No. 255, for workers who have become disabled, undergoing follow-up treatment in a sanatorium or who worked under fixed-term employment contracts for up to 6 months, are also preserved.

Amounts of payments to working and dismissed employees

The amount of benefits when on sick leave for working and dismissed employees who fall ill within 1 month from the date of dismissal is determined by Art. 7 of Law No. 255-FZ.

According to paragraph 1 of this article, employees who quit while on sick leave are entitled to a benefit calculated based on the amount of insurance coverage within the following limits:

According to paragraph 2 of this article, employees who are fired and put on sick leave within 30 days from the date of dismissal with a length of service of more than 6 months are paid a benefit in the amount of 60 percent of average earnings. The limitation on the amount of benefits paid to dismissed employees with less than 6 months of service also remains within the limits of 1 minimum wage per month, calculated in terms of the number of days of sick leave.

Thus, even if you have sick leave, the law provides for the opportunity to resign at your own request and receive benefits.

In Russia, issues related to employment are of great concern to citizens. The same applies to everything related to dismissal. Termination of an officially concluded employment contract between an employer and an employee is something that requires special attention. The Labor Code of the Russian Federation provides for many nuances regarding the issue posed. But what to do if you plan to leave on sick leave at your own request? Is it even possible to terminate an employment contract in this manner? What should every employee and employer know? It is not so difficult to understand all these issues if you turn to the Labor Code of the Russian Federation. It is here that there are answers that will help clarify the situation.

Is there a right

The thing is that some consider termination of employment during sick leave to be an illegal action. Are these people right?

It all depends on the circumstances. An employer cannot fire a person while on sick leave. It is illegal. But if we talk about terminating an employment relationship at the employee’s request, then there will be no violations. Why?

All due to the fact that dismissal on sick leave occurs at one's own request. The Labor Code of the Russian Federation, or more precisely, Article 80, indicates that at any time a citizen is able to terminate the employment contract with his employer. Even during vacation. No one can take away this right.

In advance

Both employees and employers will have to remember some rules. The thing is that dismissal on personal initiative requires a certain time investment. By law, every person who wants to stop collaborating with a particular boss must give advance notice of his intentions. We are talking about writing a statement in the established form.

In advance - this is at least 14 days before the expected day of termination of the employment relationship. Accordingly, citizens cannot simply go on sick leave at their own request and in the shortest possible time is common in Russia. But why?

Working off

All due to the fact that a person will work for 2 weeks after notifying his superiors of his intentions to terminate cooperation. A kind of work is required by law. And this will have to be taken into account if you want to stop working for a particular company on your own.

But dismissal on sick leave of one's own free will without working off is a common occurrence. Why? Because according to the law, a person must notify his boss about the termination of his employment relationship 14 days in advance. Then he either works or goes on vacation/sick leave. No one has the right to call a citizen for detention.

It turns out that the process being studied is a kind of trick that occurs quite often in Russia. It allows you to not work after the employer is notified of the impending loss of an employee. But what should every citizen know about in addition to all the previously listed points?

Sick leave payments

For example, many are interested in whether any payments are due to an employee who has terminated his employment relationship with the employer after he went on sick leave. This is a very difficult question.

On the one hand, a citizen can, as already mentioned, resign on sick leave at his own request in order to avoid working off the job. In fact, this is a kind of deception. And there is no need to pay sick leave.

On the other hand, sometimes there are coincidences. A citizen can really get sick. And at the same time decide to quit. Then non-payment will be considered a gross violation. For the employer, this is fraught with a large debt.

So what should we do? Article 183 of the Labor Code states that upon dismissal, sick leave must be covered. That is, to be paid. This means that dismissal on sick leave at the employee’s own request still obliges the employer to make an Exception - if the citizen took Then he will not have to pay for the time of absence until the actual termination of the relationship.

Deadline for applying for sick leave

But if we talk about that, they are also protected by the Labor Code of the Russian Federation. There are still some calculation limitations. At least regarding sick leave.

Is the employee planning to resign at his own request “on sick leave”? Payment for time spent as a sick person can only be received when a person applies for it within a month from the date of actual termination of the employment relationship. And only on the condition that a new place of work has not yet been found.

In other words, under some circumstances, the time spent on sick leave does not need to be paid. Unfortunately for employers, such situations are extremely rare in practice.

Basic calculation

According to the established rules, dismissal of an employee (on sick leave) at his own request is paid. More precisely, the employer must necessarily pay for the time worked. Does not include sick leave.

If we talk about the usual termination of labor relations, then the money is paid on the day on which the citizen receives the work book. More precisely, at the moment of real dismissal. But what about a situation in which a person was on sick leave?

Then the calculation is made either at the time of applying for money and “labor”, or on the next day. And no later than the specified deadlines. Otherwise, the employer will incur a debt to the former subordinate. It increases daily. Every boss should know about this.

During testing

Special attention is paid to termination of cooperation during the probationary period. This is a highly controversial issue that causes both employees and employers a lot of trouble.

Dismissal on sick leave at one's own request during the probationary period practically does not occur. But if it occurs, then you will have to notify the employer 3 days before writing the application in the established form.

What to do with the calculations? Are any payments due to the employee in this situation? Yes. The employer, by law, must make all the calculations as in the case of a normal termination of an employment relationship. Namely:

pay ;
“cover” sick leave;
give money for time worked.

Accordingly, full payment is due. Otherwise, as in the previous case, debt arises. How does one quit at will while on sick leave? Everything is not as difficult as it seems.

Dismissal procedure

Now a little about how to briefly describe the process under study, taking into account all the previously listed features. By law, each employee personally has the right to dismissal at any time. It is enough to notify the employer about this in advance. It doesn’t matter whether it happens while on sick leave or not.

The procedure for terminating an employment relationship is as follows:

A citizen writes an application for leave on sick leave. Together with it (or after) it is drawn up. It must be written down “at one’s own request”.
The employer studies the submitted documents. From this moment the countdown of 2 weeks begins.
After 14 days from the date of notification of dismissal, the boss draws up an order to terminate the employment relationship. It is presented to the person being dismissed for review. The corresponding entry is made in a special accounting journal. If the employee cannot personally come to the employer, he must send a copy of the order by registered mail.
A record of dismissal is made in the work book. It is necessary to indicate Article 80 of the Labor Code of the Russian Federation. This means that the employee himself decided to terminate the relationship.
As soon as the order comes into force, the employee receives a work book and pay slip. An act is drawn up about this.
The person being dismissed contacts the accounting department for payment. After this, you can sign in the accounting journals for receiving funds in full, as well as for issuing a work book to a subordinate.
If the employee refuses to sign, a special act is drawn up in which all actions are recorded. If it is not possible to make a personal visit to obtain a “labor” document, you will have to send a notification of the need to make a payment by registered mail. Then a trusted person can receive the money and work book.

That's all. Voluntary sick leave has come to an end. There is nothing difficult with proper preparation. Neither the employer nor the subordinate will have problems.

Sample

What would a sample resignation letter look like? In fact, everything is very simple. It is enough just to follow the standard requirements for writing any application.

Many people are interested in what the main part of the document will look like. For example, like this:

I, Ivanov Ivan Ivanovich, (passport data), mechanical engineer of the company SpetsStroy LLC, ask to be dismissed under Article 80 of the Labor Code of the Russian Federation at my own request from 02/20/2016.

It would be enough. This is what a sample letter of resignation looks like. Nothing difficult or special will be required from the citizen. There is no need to describe the reasons for termination of the employment relationship.

Results

What conclusions can be drawn from all of the above? Dismissing an employee on sick leave at his own request is not such a difficult process if you approach the task wisely. In general, it is no different from the usual termination of the relationship between an employer and a subordinate.

The calculation is made in full. And for time worked, and for unused vacation, and for sick leave. Failure to fulfill these obligations will lead to negative consequences.

The legality of dismissal during sick leave depends on the initiator of the procedure. A situation may arise that an employee submitted a letter of resignation, but suddenly fell ill. What should the employer do in this case? Should I wait for the employee to recover or fire him after the 14-day period required by law has expired? Is it even possible to fire someone while on sick leave at their own request? Can an employer fire an employee on his own initiative? Let's figure it out.

Dismissal during sick leave at the initiative of the employer

The law prohibits dismissing an employee who is on sick leave, provided that he has concluded an open-ended employment contract with the employer. But there are a number of cases when this is possible, namely:

upon termination by the employer of its activities or liquidation of the employing organization;
upon expiration of the employment contract.

When a company is liquidated, a former employee can receive sick leave payments from the Social Insurance Fund (at his place of residence). For this he will need:

statement:
SNILS;
certificate of incapacity for work;
passport;
employment history.

If the contract term is coming to an end

Is it possible to dismiss an employee while on sick leave at the end of the employment contract? Let me explain. If an employee is on sick leave and the term of his employment contract has come to an end, then the employer has the right to dismiss him. Otherwise, the fixed-term contract may take an indefinite form. Then it will no longer be possible to stop it during illness.

Is it possible to dismiss an employee while on sick leave if she is a pregnant woman (under any form of contract)? Definitely not. But she must provide the employer with a corresponding doctor’s certificate.

Algorithm for an employer's actions when the contract expires:

It is necessary to send the employee by mail a notice of the end of the contract with an invitation to appear for a work book. If the employee agrees, then it is possible to send it by mail.
Drawing up an order in form T-8 on the dismissal of an employee (if necessary, with a note that he cannot familiarize himself with the document due to absence).
Making a corresponding entry in the work book and personal card of the employee (Article 77, paragraph 2 of the Labor Code of the Russian Federation).
Transfer of all due payments to the employee (salaries and compensation for unused vacation).
After the former employee submits sick leave to the accounting department, it is paid in full (if the illness occurred before the end of the contract).

Dismissal at the request of the employee

Many people are interested in the question of the possibility of voluntarily dismissal during sick leave. Let's talk about this in more detail.

If an employee submitted a letter of resignation before his illness, the employer has every right to dismiss him before the end of his sick leave period (14 days from the date of filing the letter). The procedure for terminating an employment contract in this case is standard:

a dismissal order is written;
a note is made in the work book and personal card;
sick leave and other debts to the employee are paid.

There are situations when an employer forces an employee to work off the time missed during illness (14 days). He has no right to do this (letter of Rostrud dated 09/05/2006 No. 1551-6).

Is it possible to fire an employee during sick leave at the request of an employee? Yes it is possible. After informing the employer of the desire to terminate the employment contract, the employee can be either on vacation or on sick leave.

If for any reason during illness an employee changes his mind about resigning, he has the right to withdraw his application (it is advisable to do this in writing).

Payment of sick leave

Sick leave is paid on a general basis if it was issued for a still working employee. A certificate of incapacity for work is issued for different periods, depending on the severity of the illness.

By law, the employer is required to pay for such documents within 30 days after dismissal during sick leave, provided that he is not officially hired for another job. Most of the payments are covered by the Social Insurance Fund (the employer only pays for the first 3 days of sick leave). The amount of payments is equal to 60% of average earnings. In general, it is calculated as follows:

Calculation

(average salary for 2 years / 730) x number of sick days x 60

Sick leave can be presented for payment to the former employer within 6 months from the date of dismissal.

Dismissal by agreement of the parties during sick leave

Dismissal by agreement of the parties during illness is also possible with an open-ended contract. This is the only case when it is allowed to terminate an employment relationship even with a pregnant woman. This option is suitable for resolving conflict situations or for dismissing senior managers who have important information.

Features of dismissal by agreement of the parties:

The deadline for filing a resignation letter does not matter (the employee leaves by agreement with the employer);
there are no guarantees of compensation;
Once an agreement is signed, it cannot be challenged in court, nor can it be unilaterally revoked.

Note that an employee can proactively approach the employer with a proposal to dismiss by agreement during the period of sick leave. This is what is usually written down in the resignation letter by agreement of the parties:

employee data and organization details;
information about the employment contract;
request to dismiss or resign by agreement;
amount of compensation, if any;
basis (article of law);
number and signature.

So, can they be fired while on sick leave? Yes, they can, but subject to certain conditions. In this situation, the law is on the employee’s side. And the employer must strictly follow all the rules and regulations.