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

The article talks about if an employee wrote a letter of resignation and fell ill, when to fire, and explains other subtleties of the law.

Legal regulation

Whole spectrum labor relations regulated by the Labor Code. If a person starts to get sick and takes sick leave, then you cannot fire him. Even if a person worked poorly and committed violations of labor discipline, termination of the contract is prohibited.

Sick leave and simultaneous dismissal are incompatible. The rule is established by Art. 81 of the Labor Code.

Important! It is permissible to terminate a contract during a period of incapacity for work if the enterprise is liquidated or a private entrepreneur ceases its activities.

The situation regarding dismissal due to at will.

Termination of employment at the request of the employee

It happens that a person writes a letter of resignation, and then begins to get sick. Then the contract is terminated according to normal procedure. The contract was terminated on the date indicated in the application. There will be no delays.

The issue is resolved in a similar way if an employee writes a letter of resignation and falls ill. When to fire if the contract is terminated by agreement of the parties?

The boss will have to wait until he is released from the hospital if he wants to fire his subordinate. Termination of the contract is possible, but only after the ballot ends.

When the specialist closes the bulletin, the HR employee will write all the necessary information in it. Then an order is issued and an entry is made in the work book.

On the day of dismissal and not a day later, a full settlement must be made with the person; no debts should remain. If cash will not be transferred on the day of dismissal, the employee will have the right to receive salary and penalties for each day of delay.

Difficult situations

It happens that a person falls ill and submits a letter of resignation. In such a situation, managers are often interested in extending the working period. But management has no right to force a person to work extra days. Two weeks may pass while a person is sick, and he will not have to work extra time.

You can also safely terminate your contract while on vacation. The time spent in the office will not be extended.

Read also Procedure and reasons for dismissal of a woman with a child under 3 years old

2 possible situations upon dismissal:

A person writes a statement, and after one week issues a sick leave. Dismissal dates do not shift if the person manages to go to work and close the ballot before the end of the work period.
The person is ill, the document on incapacity for work is not closed. The contract is terminated on the date written in the application. The deadlines remain the same. The time during which the person could not work is paid.

You need to give your work book and make payments on the last working day. The law makes no exceptions. It does not matter under what circumstances the decision was made to write a letter of resignation. When a person is absent from the office, this does not mean that there is no need to submit documents. The employee is notified in writing that he should come to the office to receive documents or give the go-ahead for the document to be sent by mail. A work book is a valuable document. You can only send it by registered mail, if a person cannot obtain the form himself.

Even if there are no questions left regarding paperwork, it often arises financial issue: How is sick leave paid?

Procedure for payment of time of incapacity for work

Sometimes the following situation arises: an employee decided to quit and then went on sick leave. What will be the payment procedure in this case?

The employer will have to pay for the ballot if the employee was working for the company when it was opened. Moreover, payment is made for the entire time of illness. Former employees also have to pay. Payment is made if the illness begins within thirty days after dismissal.

Sick leave is paid in the amount of sixty percent of wages.

3 design examples:

Example 1. Kuznetsov N.A. worked as a manager of the Cheap Windows company. Quit. Fifteen days later I fell ill with a sore throat. I contacted my local doctor and drew up a document about incapacity for work. The employer will have to pay. Money is transferred over a period not exceeding thirty days. If the illness continues beyond this period, there will be no payment.

Demands for payment are legal if the employee makes them no later than six months from the date of termination of the contract.

Example 2. Ledentsova I.S. worked as a secretary of the Moscow District Court. The girl resigned from her position. Two weeks after the contract was terminated, I fell ill. I created a newsletter. She brought the document to personnel service only four months after his dismissal.

Read also The procedure for dismissing an employee on a daily basis

Question: Do I need to pay for sick leave for a former employee?

Answer. Yes, it is necessary, despite the fact that before her dismissal, her sick leave was not received by the personnel department. A resigning specialist has the right to present a document for payment no later than six months after his departure. In our example, the deadlines were met.
So, questions about whether it is possible to receive payment for sick time after dismissal are resolved in favor of the employee, the main thing is to comply with the deadlines for the application.

Example 3. Sergeev N.S. works as a mechanic for the Tekhmontazh company. The boss doesn’t like how the specialist performs his duties, and he decided to say goodbye to the unwanted employee. Sergeev fell ill, the doctor opened a document on his incapacity for work. Termination of the contract will be possible when the sick leave is closed. In this case, the procedure established by labor legislation must be followed.

Sanctions for violations

Liability for violations is established by the Code of Administrative Offences. An employee can seek protection of his rights from labor inspectors, the prosecutor's office and the court.

If the court confirms that there were violations, the employee will be reinstated, and the company will compensate for lost earnings.

Social guarantees are provided by the Labor Code of the Russian Federation. A person can exercise their right to rest and submit a resignation letter at the same time. The rule also applies to cases when a woman takes sick leave for child care. In any case, the contract is terminated on the date specified in the application.

Social guarantees do not depend on the reason for registering a ballot. A person can be fired both during his illness and while caring for a sick family member.

Resume

The Constitution and the Labor Code guarantee the prohibition of forced labor. Therefore, a person can resign from office whenever he pleases. There are no obstacles.
You can resign while on vacation or during illness.
If sick leave is issued, then we resign on general principles. Dates are not transferred.
If you leave your position, you can still get money. Payment is made if you have time to apply no later than six months after dismissal.
When a person leaves work, the ballot is paid for a period no later than thirty days from the date of termination of the contract.
The documents are drawn up so that the employee leaves her position on the date indicated in the application. The working time is not extended when a document on incapacity for work is issued.

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 situation is enshrined in the norm of Article 81 Labor Code, the last paragraph of which says: “The dismissal of an employee at the initiative of the employer is not allowed (except in the case of liquidation of the organization or termination of activities individual entrepreneur) during the period of his temporary incapacity for work and while on vacation.” Thus, only the termination of the employer’s activities can become legal basis 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 to dismiss comes. In the practical activities of many companies, a situation often arises when an employee applies for dismissal due to 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 stopping 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 employer is initially obliged to fill out a certificate of temporary incapacity for work 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 a clarification on this matter Federal service on labor and employment. 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 work book and wages, he must be notified in writing of the need to appear for a 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 general procedure, even if the closure of sick leave occurs during a period when the employment relationship with the employee has already been terminated. One more important point is that by law the employer is obliged to pay sick leave to a dismissed employee for a certain period of time. 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 at will during sick leave is a procedure provided for by current legislation. We will tell you how to dismiss an employee on sick leave at the initiative of the employer or the employee himself, what is the procedure, procedure and payment period.

Is it possible to fire an employee while on sick leave?

Dismissal on sick leave at your own request is possible:

at the initiative of the person resigning.

At the initiative of the employer

An employer has the right to fire someone on sick leave only in exceptional cases, since dismissal of an employee on sick leave is not permitted. Exceptions are when the organization .

At the initiative of the employee

Dismissal during sick leave at one's own request takes place if available. In this case, the person informs in writing of his intention to resign no less than two weeks in advance.

The person resigning has the right to inform the employer about his resignation both during the period of work and during absence. In this case, the employer fires the person at the end of the two-week notice period.

The Labor Code of the Russian Federation does not prevent filing an application in any way, including. Thus, the application can be submitted, for example, by registered mail.

An employee upon the closure of a certificate of incapacity for work. The deadline starts counting from the day following the day the employer receives the subordinate’s application. It must be borne in mind that if a person has written an application due to the inability to continue working (pension, admission to an educational institution), the employer is obliged to part with the employee on the day specified in the latter’s application.

How to register correctly

Termination of an employment contract is carried out according to the algorithm provided for by the Labor Code of the Russian Federation (Article 80, 84.1.):

The employee sends the application to the employer in person or by mail.
Employer with date. It must be borne in mind that a person has the right to withdraw his application. In this case, dismissal will not occur. An exception is a written invitation to take the place of another person being dismissed, whose employment is impossible to refuse due to the norms provided for by labor legislation.
The employer familiarizes the employee with the administrative document in writing. If the person resigning is absent on that day, the employer records in the administrative document the impossibility of informing the employee in writing due to the latter’s absence.
On the last day of work, the employer finally pays it off. If the employee is not present, the employer sends him a notice to appear for a work book or invites him to agree to send it by mail. If there is no consent to send the work book by mail, the employer is obliged to keep the document and issue it after a written request.

Dismissal by agreement of the parties during sick leave is carried out as follows:

Decision making by any party to the contract.
Drawing up an agreement. The form of the document has not been established. The agreement is drawn up in two copies, which are signed by both parties. One copy is kept by the employer, the second by the employee.
Issuance of a termination order labor responsibilities on the above grounds.
Issuance of a work book on the last day of work and settlement with the employee.

Terms and payment procedure

Employer on the last day of work. Absence on a certificate of incapacity for work will need to be paid on a general basis.

If on the last day of work the employee is not on site, payments are made no later than the day following the day when the employee made a request for payment (Article 140 of the Labor Code of the Russian Federation). The employer pays him benefits for the entire period of illness until the day he is restored to work.

The law allows dismissal on sick leave only at your own request. Dismissal on sick leave at the initiative of the employer is prohibited by law..

The organization does not have the right to dismiss an employee when he is on official sick leave. Only at his own request. This is stated in Art. 81 Labor Code of the Russian Federation.
However, there are exceptions to this strict rule - the liquidation of an enterprise that is an employer or the termination of the activities of an individual entrepreneur.

The main common mistake an employer makes is that he does not know how to enter next situation. For example, an employee writes a letter of resignation on his own initiative and undertakes to work for the required 2 weeks. But suddenly he gets sick! Two weeks expire during sick leave. Can the employer fire such an employee, or must he wait for his recovery?

In this case, the initiative comes from the employee, so dismissal of one’s own free will while on sick leave is possible. A similar situation may include dismissal by agreement of the parties. If the initiator of dismissal is the employer, and the employee fell ill on the last working day, then the employer must wait for him to recover, and only then dismiss him.

When leaving on sick leave at your own request, extension of service is not allowed. The law clearly states that a period of illness does not interrupt the 2-week period of work. It is also said that the employee must notify the employer of dismissal 2 weeks in advance. At the same time, he can be sick or rest.
Therefore, the employer’s requirement to work out sick days before dismissal is contrary to the law.

If the employee does not return from sick leave on the day of dismissal, then the employer is obliged to dismiss him on the very day indicated in the application at his own request. The employer does not have the right to change the date of dismissal at his own request in the employee’s application. This requires the written consent of the employee. Therefore, dismissal occurs on the specified date. There is nothing illegal about this.
In this case, the sick leave that the employee who has already resigned will eventually receive will be paid by the employer.
This is stated in Law No. 255. Such an employee must submit a closed sick leave certificate to the employer within six months after its closure. Within 10 days after receiving the certificate of incapacity for work. The employer is obliged to provide such an employee with temporary disability benefits. Benefits must be paid on the next payday.

The employer is also required to pay sick leave if the employee is injured or becomes ill within 30 days of dismissal. This is done only if the employee is not employed.
If an employee returns from sick leave before the date of dismissal, then he must work and resign on a general basis. This is stated in Letter of Rostrud No. 1551-6.

If sick leave was opened for a working employee, then it is paid on a general basis:

depending on insurance experience
average salary

An application for dismissal at the own request of an employee on sick leave is drawn up in accordance with the norms of the Labor Code of the Russian Federation. It must indicate:

Full name and position of the person authorized by the employer;
name of the employer indicating the organizational - legal form;
Full name and position of the dismissing employee.

In the application itself you only need to indicate the date of dismissal. There is no need to focus on sick leave.

How will the dismissal process go 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 wages subordinates receive at the cash desk, then the dismissed person 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. According to Federal law No. 255 dated 12/29/06 former employee may 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 its 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, then you can sue him or go to labor inspection. According to the Federal Law “On the procedure for considering citizens’ appeals 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.