Often the working hours of employees and management do not coincide. For this reason, a person’s last working day may fall on a weekend. It also happens that according to a person’s schedule, a day of rest falls at the time of termination of the agreement. Dismissal under a fixed-term employment contract on a day off is not permitted by the legislator. Therefore, to answer the question regarding when to fire an employee, you need to turn to the Labor Code of the Russian Federation.
The process of terminating employment relations is being implemented in a simplified format. This provides that the management of the enterprise issues an act regarding the termination of the agreement. Some difficulties may also arise. They are associated with the fact that the initiative to terminate the contract is taken by the employee, employers, or there is an agreement between the parties.
On the day the contract expires, an order is issued indicating the end of the person’s labor activity. Each party has the right to express its desire to terminate the agreement earlier than the deadline. The employer also has the authority to send notice of the expiration of the document. The dismissal procedure is carried out in accordance with labor legislation.
The Labor Code indicates the possibility of terminating an agreement at the employee’s will, and the type of employment agreement does not matter. When the agreement was concluded for the purpose of performing seasonal work or the validity period is less than two months, the employee must notify the company of his desire to resign.
Notification is sent in writing. The deadline is set by the legislator - three days before the termination of the relationship occurs. The grounds for termination of employment may be the lack of opportunity to continue working. For example, this happens when enrolling in university, retirement, etc. In the listed situations, the contract is terminated within the period reflected by the person in the application.
When the day of dismissal falls on a weekend, there is usually no serious problem associated with this. When terminating an employment relationship under a fixed-term agreement, it is required to notify the employer three days in advance. Therefore, it is possible to calculate in advance what day of the week the dismissal falls on.
It is important to know! If none of the parties expresses a desire to terminate the relationship, then the contract expires automatically. Therefore, a situation may arise that the day of termination of the agreement period falls on a weekend.
The question is resolved this way:
In practice, controversial situations may arise related to the termination of relations with certain categories of workers. For example, a pregnant woman is considered such. If an employer violates her rights, she can go to court to protect them.
Similar to an ordinary employment agreement, when terminating a fixed-term one, an entry must be made in the work book. After the contract period expires, a corresponding entry must be made in the specified document. It should be noted that when applying for employment, it is not necessary to indicate the temporary nature of the duties.
If the contract is terminated, the employer is obliged to indicate that the basis was the expiration of the validity period of the act. The exception is the presence of other grounds for dismissal. In a situation where the validity period has expired, but the person continues to work, the agreement takes on the character of an unlimited term. After this, the provisions of labor legislation apply to him.
An important component of the procedure for terminating an employment relationship is the preparation of a notice. This is reflected in labor legislation. If such provisions are not met, there is an opportunity to appeal. The notification includes information regarding the employee’s details and the position he occupies; each notification has its own number and date.
Also included are information regarding the agreement that was concluded with the employee, the day on which it expired and the person was fired. The employer signs the document and sets the date of preparation.
At the end of the agreement, a certain sequence of actions is established. Initially, the employee must be notified that the fixed-term contract is expiring. It does not matter that such a deadline falls on a weekend. Then an order is issued reflecting the termination of the employment relationship.
The employee reads the order and signs. Otherwise, it is considered that the person is not familiar with the document. If the day of dismissal falls on a weekend, the employer must pay the employee the day before or immediately after the weekend. Also, on the day of payment, a person is given a work book.
The employer must keep in mind that the validity of the agreement is not dependent on third-party situations. Therefore, when an employee is on sick leave, the company’s management sends him a notice that the contract is coming to an end. It is important to ensure that the employee signs receipt of the document. Otherwise, it will not be possible to prove the fact of delivery. After this, the process starts as usual.
Companies are now increasingly using fixed-term contracts. Due to the fact that the drawing up of such a document and its termination has many nuances, the legislator has made attempts to take into account the interests of both parties to the agreement. Before you start drawing up a contract, you need to understand the intricacies of the procedure for terminating an employment relationship under such a document.
A fixed-term employment contract is one of the forms of legal relations between the parties. Under such an agreement, the employee undertakes to perform specified duties for a certain period, after which there is a high probability of being accepted into the staff of the enterprise.
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The rights and obligations of an employee are established not only in the concluded agreement, but also in the current labor legislation of the Russian Federation. Often, ignorance of your rights leads to their violation by the employer.
The main feature of this type of agreement is that it is drawn up for a certain period, after which the parties actually terminate their employment relationship.
An example of such an agreement could be an agreement to perform seasonal work or provide a certain one-time service.
The validity period of a fixed-term agreement cannot exceed 5 years.
It is important for the employee to become familiar with the following definitions:
Labor legislation contains other definitions that are mandatory for the employee to familiarize with.
In the Russian Federation there is a special legal act regulating legal relations in the sphere of labor - the Labor Code of the Russian Federation. Cases in which a fixed-term employment contract can be concluded are stipulated in the article of the Labor Code of the Russian Federation. An article of the Labor Code of the Russian Federation regulates the procedure for terminating a fixed-term employment agreement.
Studying the Labor Code of the Russian Federation allows us to understand the features of this kind of legal relationship between an employee and an employer.
An employee performing duties under the terms of a fixed-term employment contract can be dismissed in the following cases:
Expiry of the contract means the end of the period for which the agreement was concluded.
For example, during sick leave of the main employee or his absence due to maternity leave.
The agreement must necessarily indicate the start and end date of the employment relationship between the employee and the employer or individual entrepreneur. Upon completion of this period, the employer has the right to dismiss the employee.
There is a practice in which an employer formalizes an employment legal relationship with an employee to perform an established list of works or provide agreed services, upon completion of which the legal relationship is terminated.
The employer undertakes to notify the employee in advance of the upcoming expiration date of the contract. As a rule, this period is 3 days.
On the last working day, the employer undertakes to make final payments to the hired employee. If for some reason the employer does not pay the employee, then such an agreement automatically becomes an open-ended agreement. Further dismissal under a fixed-term contract will occur according to the general rule.
The legislation provides for the following reasons for terminating a fixed-term employment contract:
The Labor Code of the Russian Federation establishes that a fixed-term employment contract can be terminated at the initiative of the employee for the following reasons:
The employee undertakes to notify the employer of his intention to terminate the employment agreement early at least two weeks before the actual date of leaving his place of work. The parties can agree on the possibility of early departure without the need for service.
Grounds for dismissal of an employee at the initiative of the employer:
Features that should be taken into account when dismissing at the initiative of the employer:
Clause 2 of Article of the Labor Code of the Russian Federation provides for the possibility of dismissing an employee under a fixed-term Labor agreement as a result of the expiration of the period for which it was concluded.
If, after the expiration of the contract, the parties actually continued their employment relationship, then such a contract becomes an open-ended contract and dismissal on the above grounds is impossible.
The main stages of terminating a fixed-term employment relationship:
The employer is obligated to notify the employee about this 3 days before the actual expiration of the agreement. The notification is drawn up in two copies and registered in accordance with the rules of document flow. The employee must be familiar with the document and leave his signature on it.
When terminating a fixed-term employment contract, the employee must have an idea of what documents are drawn up during this procedure:
The order is the main document at the enterprise on the basis of which an employee is dismissed. The document is signed by the manager or an authorized person and is also provided to the dismissed employee for review.
If an employee is absent from the workplace or deliberately refuses to sign it, then in this case the employer is obliged, as part of the working commission, to draw up an appropriate act, which will reflect the reason why it is impossible to convey the essence of the document to the employee.
The responsibilities of the HR department include filling out and issuing work books. On the last working day, the employee must sign in the work record book stating that he has read the information entered and received the document on purpose.
The terms of a fixed-term employment agreement may provide for the employee’s obligation to work for a certain period before actually ceasing to perform work duties. Dismissal under a fixed-term contract on a weekend is not possible. The date of dismissal will be the first nearest working day.
An employee working on the basis of a fixed-term employment contract has the right to expect payment of funds due to him for the time actually worked.
In cases provided for by law, an employee may be entitled to payment of severance pay and compensation, payment for vacation, if the contract has become indefinite, established by law, labor or collective agreement of the enterprise.
A pregnant woman can be fired only in cases of liquidation of the enterprise or the return to work of the main employee who was replaced by a hired worker.
If an employee’s pregnancy occurs during the expiration date of the employment contract, then the employer, after receiving an application from the pregnant employee and providing documentary evidence, is obliged to extend the term of the agreement until the birth of the child with the provision of maternity leave.
An employee has the right to terminate an employment contract with his employer by warning him about this no later than 2 weeks in advance (Article 80 of the Labor Code of the Russian Federation). That is, an employee can write a statement at any time, but after that the employer will have the right to require him to work for 2 weeks. Or he may not demand it - that’s his right.
In this case, the specified period begins the next day after receiving the application from the employee. And theoretically, the last day of these two weeks could fall on a weekend. But is it possible to be fired on a day off?
In accordance with the Labor Code of the Russian Federation, the day of termination of the employment contract is the last day of work of the employee, except for cases when the employee did not actually work, but retained his place of work / position (Article 84.1 of the Labor Code of the Russian Federation). Therefore, in the general case, if the end date of the work period - the expected day of dismissal - falls on a day off, then the employee must be fired on the next working day (Article 14 of the Labor Code of the Russian Federation).
Similarly, if the day of dismissal falls on a holiday (non-working day), then the employee must also be fired on the next working day, pay him and give him a work book.
In certain cases, the employer is obliged to terminate the employment contract with the employee within the period specified in the application. This applies to employees who cannot continue their work activities in the future for objective reasons:
You cannot assign any work to them. Therefore, the only thing you need to make sure is that the date of dismissal in the employee’s application falls on a working day.
If you have entered into a fixed-term employment contract with an employee, the last day of its term may also fall on a weekend. In such a situation, it is safer to formalize the dismissal of the employee in accordance with the general approach - on the next next working day (
The practice of labor relations shows that the working regimes of the employee and the administration may not always coincide. Situations often arise when an employee’s last working day falls on a weekend, and accounting and HR are not working. It also happens the other way around, when the dismissal date falls on the usual schedule, but the employee himself must rest at this time.
For your information
If you try to get information on this issue from your accounting department, you will most likely receive a harsh and categorical answer. Already at the stage of receiving such an application, personnel officers quickly calculate everything and tell the manager the day on which the resolution needs to be put forward. Of course, this date will fall on Friday or Monday.
To consider the general procedure for dismissal on a day off, you should refer to Article 84 of the Labor Code. The rules described in the regulation apply to all employers without exception. Thus, the administration of the enterprise is obliged not only to say goodbye to the employee, but also to issue him a work book and pay him in full for the time worked.
Attention
It is best to record final payments by asking the employee to sign for receipt.
Today, there is a fairly extensive practice when already dismissed employees were reinstated in the organization due to minor shortcomings made by personnel services.
To understand where work on a day off can come from, you need to look at the procedure for calculating wages. The legislator allows enterprises to choose a payment system, for example, if production conditions require assigning shifts or working on weekends or holidays. The payment for such an organization of labor is quite equivalent - an employee who has written an application for termination of employment relations can count on the final payment under Article 140 on a non-working day.
Additional Information
The Labor Code states that the last day of work is the day of dismissal. On this date, the citizen still formally performs his duties and fills out a bypass sheet. There is no clear reference in the law as to which day may be selected for final settlement. Therefore, the opinion that it is impossible to fire someone on a day off is hasty and even erroneous.
Regardless of the date of termination of the employment relationship, the employer remains obligated to pay accruals due on the day of dismissal:
The main benefits for dismissal on a day off are compensation for unused vacation and wages for time worked after the last scheduled payment.
For example, an employee of organization N with a salary of 25,000 rubles and an average daily earnings of 900 rubles wrote a letter of resignation. At the time of his application, he had unused vacation and work time left. Due to his illness, he cannot come, so he sent a letter of application by registered mail. He should be compensated for leave of a standard duration of 28 days and 9 working days. The payment will be 900*(28+9) =33300 rubles.
One of the simple solutions that the administration of an organization or individual entrepreneur can offer is an attempt to reach an agreement with the employee. For now, an employee can rewrite his own, which will indicate a slightly different date instead of a day off. Of course, such a proposal should not infringe on the employee’s interests, especially material ones. It is also worth considering that the citizen could already agree with the new leadership on an appointment starting on Monday, and this is critical. In this case, you can fire the person before the day off, for example on Friday.
If an agreement cannot be reached, the Law continues to be on the employee’s side. The employer does not have the right to change the date of dismissal planned by a citizen working under an employment contract on a day off. Indeed, in most cases, contracts with ordinary employees are drawn up without specifying expiration dates. If the administration of an enterprise deliberately changes the date of termination of the contract, this may entail liability under Article 80 of the Labor Code. It’s good if the labor inspectorate doesn’t come for a long time or doesn’t notice such a flaw.
For example, if the employee himself decides to challenge such a decision after 3 months, the prosecutor’s office and the inspectorate will quickly “convince” the organization to reinstate its former employee in his previous position, pay him wages for the period of forced downtime and all payments due. The financial risks of the company when such events are initiated are quite significant.
For cases where an employee plans to quit after using vacation, it is necessary to refer to Article 127 of the Labor Code. The standard specifies the need to make settlements with the employee on the day he goes on vacation. The start date of the vacation will be considered the time of termination of the employment contract, and the day of dismissal will be the last day of the previously unfinished vacation. The same is stated in the Letter, which was published in Rostrud in 2007 under the number 5277-6-1.
When it is planned to terminate an employment contract with an employee engaged in shift work, the date of dismissal will be recognized as the last working day. This day may also fall on a day off, which is set in the schedule for a citizen who stops working.
In a situation where an employee must be fired on a day off, the Labor Code does not provide for the possibility of mandatory involvement of administration employees to resolve issues with termination of the employment contract. At the same time, the employer remains obliged to comply with the requirements of the legislator. To organize work on a day off, he has the right to involve a personnel employee and an accountant to fully document the still active employee.
For your information
It gives him this opportunity. For off-hour work, the director will be forced to make an additional payment or provide other days of rest. In cases where an employee works in shifts, he will have to be fired on his day off.
Dismissal on a day off under a fixed-term employment contract
Additional Information
In cases where a fixed-term employment contract terminates on a weekend, Article 14 of the Labor Code has no effect. If the date of termination of the contract is specified, the employee should be dismissed and fired exactly on the pre-agreed date, without options. The employer will have to notify the citizen 3 days in advance and formalize the dismissal on the last working day.
If the day of dismissal is considered a working day for an employee, and a day off for the administration, this should not interfere with the employee’s calculations. If an accountant or HR employee is not working at all on the date, this can significantly complicate the situation. As a general rule, work on weekends and holidays is not permitted. True, again, the employer can assign such a day to workers, formalizing the exit of responsible persons with the appropriate order for the enterprise.
Answer: By virtue of Art. 79 of the Labor Code of the Russian Federation, a fixed-term employment contract is terminated upon expiration of its validity period. The employee must be notified in writing of the termination of an employment contract due to its expiration at least three calendar days before dismissal, except in cases where a fixed-term employment contract concluded for the duration of the duties of the absent employee expires.
There are also several opinions about when to formalize the termination of a fixed-term employment contract if the last day falls on a weekend:
- formalize the dismissal on the last working day preceding the day off;
- dismiss on the next working day after the day off;
Formalize the termination of the contract exactly on the day the fixed-term employment contract ends, to do this, involve HR and accounting employees to work on their days off.
We consider the most correct method to be dismissal on the next working day following the day off on which the expiration date of the fixed-term employment contract falls. Follow the procedure: you must notify the employee of the termination of the employment contract due to its expiration in writing at least three calendar days before dismissal.
In the event that neither party requested termination of a fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the contract, the condition on the urgent nature of the latter loses force and it is considered concluded for an indefinite period (Part 4 Article 58 of the Labor Code of the Russian Federation).
B.A. Chizhov
Deputy Chief
office management department
Business Administration
Federal service
on labor and employment,
State Advisor of the Russian Federation
2nd class
Signed for seal
Question: The employee submitted his resignation on 09/03/2012 at his own request on 09/23/2012, on his scheduled work shift. Is this a basis for involving a HR inspector and an accountant to work on the day off September 23, 2012?
Answer: Registration of termination of an employment contract with an employee and making final payments to him must be made on the last day of his work, even if this day coincides with a day off for the employer’s services authorized to carry out these actions.
Rationale: One of the grounds for termination of an employment contract is provided for in clause 3, part 1, art. 77 of the Labor Code of the Russian Federation, termination of an employment contract at the initiative of the employee (at his own request). Article 80 of the Labor Code of the Russian Federation, part 1, provides for the employee’s right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless a different period is established by the Labor Code of the Russian Federation or other federal law. In this case, the employee can indicate in the application a specific date of dismissal, calculating it independently according to the rules of this article. Upon expiration of the notice period for dismissal, the employee has the right to stop working in accordance with Part 5 of Art. 80 Labor Code of the Russian Federation.
The day of termination of the employment contract in all cases is the last day of work of the employee (Article 84.1 of the Labor Code of the Russian Federation), on which the employer is obliged to issue the employee a work book and make final payments to him in accordance with Art. 140 Labor Code of the Russian Federation. In accordance with Letter of Rostrud dated June 18, 2012 N 863-6-1, if an employment contract is terminated with an employee who has a shift work schedule, the date of termination of the employment contract is the date of the employee’s last working day, including those falling on a weekend or non-working holiday.
The procedure for terminating an employment contract established by labor legislation does not provide for the possibility of issuing a work book to the employee, as well as paying all amounts due to him before the day of termination of the employment contract, except in cases of granting the employee leave with subsequent dismissal (Determination of the Constitutional Court of the Russian Federation dated January 25, 2007 N 131-O -O, Letter of Rostrud dated December 24, 2007 N 5277-6-1). And later than the day of dismissal, the corresponding actions can be carried out by the employer only if on the day of termination of the employment contract this is impossible to do due to the absence of the employee: according to Art. 84.1 of the Labor Code of the Russian Federation, these are cases when the day of dismissal is not the last day of work, but the day of the period during which the employee retained his place of work.
Since dismissal under clause 3, part 1, art. 77 of the Labor Code of the Russian Federation does not depend on the will of the employer, despite the fact that the employee warned the employer about his dismissal more than two weeks in advance, it would be unlawful for the employer to unilaterally postpone the date of his dismissal specified in the employee’s application at his own request in order to make the dismissal and the final payment in working day and not to involve the HR department inspector and accountant to work on the day off 09/23/2012.
Since, firstly, the date of dismissal at his own request is determined by the employee, taking into account the requirements of Art. 80 of the Labor Code of the Russian Federation on compliance with the warning period and is recorded in the application for dismissal, and, secondly, according to the work schedule approved by the employer, taking into account the opinion of the representative body of employees (Article 103 of the Labor Code of the Russian Federation), this day is the last working day for the dismissed employee, We believe it is correct to make the dismissal on this very day (in the question it is 09.23.2012), despite the fact that it is a day off (according to Parts 1 and 2 of Article 111 of the Labor Code of the Russian Federation) for the employer’s services authorized to carry out the registration of the employee’s dismissal and carry out him the final payment.
In this situation, the employer can only contact the employee with a proposal to terminate the employment contract before the expiration of the warning period on the basis of Part 2 of Art. 80 Labor Code of the Russian Federation. If the employee does not agree with him, the dismissal must be made on September 23, 2012, with the involvement of the HR inspector and accountant to work on a day off.
Yu.V.Shchedryakova
Consulting and Analytical Center
in accounting
and taxation
Document provided by ConsultantPlus
"Personnel department of a state (municipal) institution", 2012, No. 2
Question: Is it possible for an employee who works irregular hours to work on a day off?
Answer: In accordance with Letter N 1316-6-1, an employee who is assigned an irregular working day may be involved in the performance of his labor functions both before the start of the working day (shift) and after its end. At the same time, the introduction of irregular working hours for employees does not mean that they are not subject to the rules determining the start and end times of work, the procedure for recording working hours, etc. These workers are generally exempt from work on weekly rest days and holidays. And you can also attract them to work on weekends and holidays on a general basis using Art. 113 of the Labor Code of the Russian Federation - that is, with written consent and if it is necessary to perform unforeseen work in advance, on the urgent implementation of which the future normal operation of the organization as a whole or its individual structural divisions depends.
Involving employees to work on weekends and non-working holidays without their consent is permitted in the following cases:
To prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
To prevent accidents, destruction or damage to the employer’s property, state or municipal property;
To perform work the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency circumstances, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases posing danger threat to the life or normal living conditions of the entire population or part of it.
Payment for a weekend or holiday is carried out in the amount established by Art. 153 Labor Code of the Russian Federation.
I.I.Shklovets
Deputy Head
Federal service
on labor and employment
Signed for seal