Termination of an employment relationship with an employee who is on leave without saving wages, perhaps for several reasons. They are specified in the labor law.

Dismissal during leave without pay

Is it possible to stop labor Relations with an employee who is on vacation at his own expense? It depends on several reasons. For example, on whose initiative is the dismissal. If the employee himself expressed a desire to quit by writing a corresponding application, there are no restrictions in the Labor Code of the Russian Federation on this matter. A similar situation with the dismissal by agreement of the parties. In this case, the employee and the employer are supplementary agreement. It indicates the date and reason for termination of the employment relationship.

In addition, the law does not prohibit the dismissal of an employee who is on leave at his own expense if he is a foreigner, and the enterprise exceeds the allowable number of migrant workers established by the government of the Russian Federation. These circumstances are beyond the control of either party.

Important! It is impossible to dismiss an employee during vacation without saving wages at the initiative of the employer.

This rule is specified in Art. 81 hours 6 TC Russian Federation. According to Art. 77 part 1, clause 3 of the Labor Code of the Russian Federation, there are no restrictions on the dismissal of such an employee on his own initiative.

Example 1

Employee Ivanov I.I. is on leave without pay for 10 days. During this period, he writes a letter of resignation. The date of this dismissal falls in the middle of his vacation. At the same time, all laws are observed (he is dismissed by agreement of the parties without working off). Then the dismissal can occur even before the end of the vacation at your own expense.

Example 2

The employee wrote a letter of resignation. But at the end date of the employment relationship, he is still on vacation at his own expense. At the same time, he did not provide an application for recall to work. The employer, acting on the basis of legislative framework, terminates the employment relationship with such an employee on the day indicated in the resignation letter.

• November 19, 2018

You can provide leave at your own expense before dismissal, but such a mechanism is not provided for by the Labor Code of the Russian Federation.
This requires 2 applications: one for leave at your own expense, and the second for dismissal at own will, they cannot be combined.
In this case, the work book is issued on the last day of vacation.
In accordance with Art. 127 of the Labor Code of the Russian Federation at the written request of the employee unused vacations may be provided to him subsequent dismissal(except in cases of dismissal for guilty actions). Then the last day of vacation is considered the day of dismissal. But this article talks about paid holidays. Unpaid leave with subsequent dismissal is not provided for by the Labor Code.
However, employers often apply this rule by analogy. Especially in cases where the employee did not use the administrative leave due to him and decided to quit. In response, Rostrud in Letter N 5277-6-1 dated December 24, 2007 noted that the employer can give the employee a vacation followed by dismissal, but this is a right, not an obligation.
The employer cannot refuse unpaid leave to persons entitled to it. Since the procedure for the corresponding dismissal is not provided for by the Labor Code, this method is suitable: take two applications from the employee - for leave without pay and for dismissal of their own free will, issue two orders and dismiss the employee according to general rules.
Normatively, the situation with the issuance of a work book in such a situation is not regulated, we believe that in this situation it is necessary to issue a work book to an employee on the last day of vacation.
If you have granted an employee unpaid leave in accordance with Art. 128 of the Labor Code, and the employee has expressed a desire to quit after its completion, then until the date of dismissal indicated by him, he retains the right to withdraw the application for dismissal. All personnel documents for the dismissal of such an employee in accordance with Art. 84.1 of the Labor Code of the Russian Federation must be issued and issued to the employee on the last day of the termination notice period.
The day of dismissal will be the last day of the notice period, i.e. in your case, the last day of vacation without pay, it is this date that you indicate in the order for dismissal and work book worker.
This conclusion is based on the following:
The day of dismissal, as a rule, is the last working day of the employee, unless the employee retained his place of work. When granting leave at one's own expense, the place of work is retained by the employee for the entire duration of such leave. Accordingly, the day of termination employment contract(day of dismissal) in this case, it will be exactly the last day of the notice period for dismissal. If it coincides with the last day of vacation, then it is on the specified day that the employer is obliged to issue to the employee all the documents related to his work.
Thus, such a mechanism of the Labor Code of the Russian Federation is not provided. To process such a dismissal, 2 applications are required: one for a vacation at your own expense, and the second for dismissal of your own free will; you cannot combine them. In this case, the work book is issued on the last day of vacation.

1. Vacation at own expense for family reasons and other valid reasons .

• In order for unpaid leave to take place, a written application from the employee and the consent of the employer are required.

The duration of the leave is determined by agreement between the employee and the employer ( Art. 128 Labor Code of the Russian Federation).

2. Leave without pay for the privileged category of employees.

• The employer must provide such leave in accordance with the provisions of Part 2 of Article 128, Articles 173 and 174 of the Labor Code of the Russian Federation, Law of the Russian Federation of January 15, 1993 No. 4301-1 “On the Status of Heroes of the Russian Federation and Full Cavaliers of the Order of Glory” and federal laws:

-dated 12.01.95 No. 5-FZ"About Veterans"(hereinafter referred to as the Veterans Law);

-dated 09.01.97 No. 5-FZ"On the provision of social guarantees to the Heroes of Socialist Labor and full holders of the Order of Labor Glory";

-dated 27.05.98 No. 76-FZ"On the status of a serviceman";

-dated 06.05.2011 No. 100-FZ"About voluntary fire protection";

-dated 02.03.2007 No. 25-FZ"On municipal service in the Russian Federation";

-dated July 27, 2004 No. 79-FZ"On the state civil service RF";

-dated 10.01.2003 No. 19-FZ"On the Election of the President of the Russian Federation";

-dated May 18, 2005 No. 51-FZ"On the election of deputies State Duma Federal Assembly of the Russian Federation”;

-dated 12.06.2002 No. 67-FZ"On Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation".

For this type of leave, the consent of the employer is not necessary, only a written application from the employee is necessary.

3. Vacation at own expense with subsequent dismissal.

• The Labor Code of the Russian Federation does not provide for leave at its own expense with subsequent dismissal. There is such a norm only for unused paid holidays - basic and additional ( Part 2 Art. 127 Labor Code of the Russian Federation).
• In practice, employers often apply this rule to unpaid leave with subsequent dismissal ( rulings of the Moscow City Court of February 15, 2013 No. 4g / 7-788 / 13 and of December 6, 2011 in case No. 33-40058).
• According to Rostrud, the employer has the right to grant the employee leave with subsequent dismissal ( letter dated December 24, 2007 No. 5277-6-1).
• An alternative would be to fire an employee at will. Only in this case, he must notify the employer in writing no later than 2 weeks ( Part 1 Art. 80 of the Labor Code of the Russian Federation).
• If the employer does not object to the dismissal of the employee, then the employment contract may be terminated before the expiration of the specified period ( Part 2 Art. 80 of the Labor Code of the Russian Federation).
• On the day of termination of the employment contract, the employer is obliged to issue a work book to the employee and make settlements with him in accordance with article 140 of the Labor Code of the Russian Federation (part 4 of article 84.1 of the Labor Code of the Russian Federation).
• Since the employee does not work on the day of dismissal, the employer is obliged to send him a notice of the need to appear for a work book or ask for consent to send it by mail ( Part 6 Art. 84.1 of the Labor Code of the Russian Federation).

The employer is obliged to make settlements with the employee no later than the next day after the employee's demand for settlement ( Part 1 Art. 140 of the Labor Code of the Russian Federation).

4. Additional leave at own expense for employees who care for children .

• This is an additional guarantee for employees who have children. The list of persons who may be granted such leave is listed in article 263 of the Labor Code of the Russian Federation. The condition for granting such leave must be prescribed in the collective agreement.
• Additional leave is provided at the written request of the employee at a convenient time for him. It can be attached to the annual paid one or used separately. And you can walk it off completely or divide it into parts. The main thing is to use the days of additional rest during the year, since the Labor Code of the Russian Federation does not allow transferring balances to the next working year.

Leave is granted to both parents - employees of the same organization, regardless of whether the other parent used it or not ( Art. 263 of the Labor Code of the Russian Federation). The right to additional leave without pay is granted to employees-parents from the year of birth of the child to the year the child is 14 or 18 years old inclusive ( Art. 263 of the Labor Code of the Russian Federation).

5. Is it possible to provide forced leave without pay?

• The Labor Code of the Russian Federation does not provide for forced leave at its own expense at the initiative of the employer. If an employee is unable to perform labor obligations, and this is not his fault, then the employer is obliged to pay him this time as simple ( Decree of the Ministry of Labor of Russia dated June 27, 1996 No. 40"On the approval of the clarification "On leave without pay at the initiative of the employer"").
• Downtime is paid in the amount of at least 2/3 of the average salary of an employee ( Part 1 Art. 157 Labor Code of the Russian Federation).
• If you sent an employee on forced leave on your own initiative, then this is considered a violation. There is a penalty for this:

An official may be fined from 1,000 to 5,000 rubles;

Organization - from 30,000 to 50,000 rubles. ( Part 1 Art. 5.27 of the Code of Administrative Offenses of the Russian Federation).

• Penalties for repeated violations will be higher:

Up to 20,000 rubles. or disqualification for a period of 1 to 3 years for an official;

Up to 70,000 rubles. For the company ( Part 2 Art. 5.27 of the Code of Administrative Offenses of the Russian Federation).

6. Is it possible to grant leave at one's own expense for two reasons at the same time?

• It is forbidden. Days of such rest are not cumulative. Therefore, the employee can only count on the longest vacation possible.

For instance, an employee has the right to take 14 calendar days off at his own expense as a working pensioner and 35 calendar days as a combat veteran (part 2 of article 128 of the Labor Code of the Russian Federation). In this case, the organization will give the employee 35 days.

Persons who care for children Art. 263 of the Labor Code of the Russian Federation), the specified leave, upon a written application of the employee, may be attached to the annual paid leave or used separately in whole or in parts. The transfer of this leave to the next working year is not allowed.

7. Can I refuse to grant leave at my own expense?

The denial of leave depends on the reasons why the employee asked for it.

• If an employee belongs to a privileged category of employees who, in accordance with the provisions of Art. 128, 173, 174 of the Labor Code of the Russian Federation and federal laws, the employer is obliged to provide leave without pay, the employer has no right to refuse him such leave.
• The company has the right to refuse to provide an employee with leave at its own expense in only one case - the employee asks for rest days for family reasons and other valid reasons.
• The employer may refuse due to the fact that the vacation may adversely affect the activities of the organization.

If, after receiving a refusal, the employee nevertheless goes on vacation, then this can be regarded as absenteeism. And this may be the basis for terminating the employment contract for the basis of paragraphs. “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation (Appeal ruling of the Moscow City Court dated January 30, 2013 in case No. 11-2971).

8. Is it possible to quit on vacation at your own expense?

• Only in some cases, dismissal during the vacation period at your own expense is possible:

If the employee wrote a letter of resignation on his own initiative ( Art. 80 of the Labor Code of the Russian Federation);

If there is an agreement between the employee and the employer ( Art. 78 Labor Code of the Russian Federation);

If the organization is liquidated or the individual entrepreneur ceases to operate ( Art. 81 of the Labor Code of the Russian Federation).

In other cases, the employer is not entitled, on its own initiative, to dismiss an employee who is on vacation, including on leave without pay.

9. Can an employee take early leave at their own expense?

• The Labor Code of the Russian Federation does not regulate the procedure for early exit of an employee from vacation without pay.
• If an employee is the initiator of early exit from vacation at his own expense, he must write an application addressed to the head of the organization. In case of consent, the employer issues an appropriate order.

For instance, the wording of the order may be as follows: “Consider August 10, 2017 as the day the end of the leave without pay. E.E. Skauzov to start work on August 11, 2017. Reason: statement by E.E. Skauzov on August 8, 2017.

• Familiarize yourself with the order of the employee under the signature. If the employer does not agree, he puts his resolution of disagreement on the application.
• If the employer is the initiator, he must notify the employee of the recall from vacation at his own expense. On the notification, the employee will put his mark on whether he agrees to go to work early or not.
• Upon receipt of consent, the employer issues an order to recall the employee from vacation without pay.

For instance, the wording of the order may be as follows: “In connection with the production need to recall researcher E.E. Skauzov since August 10, 2017”. Familiarize yourself with the order of the employee under the signature.

In both cases, in section VIII of the employee's personal card, clarifications are made on the actual duration of the vacation.

10. Do leave without pay for non-working holidays?

• Non-working holidays do not include, when calculating calendar days, the annual basic or annual additional paid leave in accordance with Part 1 Art. 120 Labor Code of the Russian Federation.
• But this rule does not apply to vacations that employees take without pay.

Therefore, if non-working holidays fall on unpaid leave, then they are included in the number of calendar days of such leave. That is, when calculating the days of rest in this case, it is not necessary to extend their number for non-working holidays.

11. Can I provide a vacation at my own expense for a few hours?

• V Part 1 Art. 128 Labor Code of the Russian Federation it is stated that the duration of such leave is determined by agreement between the employee and the employer.
• At the same time, all types of vacations in accordance with the Labor Code of the Russian Federation are provided in calendar or working days, in particular:

Annual basic paid leave - 28 calendar days ( Part 1 Art. 115 Labor Code of the Russian Federation);

Annual additional paid leave for employees with irregular working hours - at least 3 calendar days ( Part 1 Art. 119 Labor Code of the Russian Federation);

Paid leave for employees who work in seasonal jobs - 2 working days for each month of work ( Article 295 of the Labor Code of the Russian Federation).

• Due to the fact that the Labor Code of the Russian Federation provides for holidays in days, it is also more expedient for companies to provide employees with holidays at their own expense in days rather than hours.
• In the rules of internal work schedule The employer can fix the following provision:

For instance, “For family reasons and other valid reasons, the Employee may be granted unpaid leave for the number of working days agreed with the Employer, if this does not lead to violation of the deadlines and disruption of current work to which the Employee is directly related. The employee must notify the manager in a timely manner of granting such leave. structural unit with observance of the order of service subordination. Leave without pay is granted on the basis of a written application of the Employee and is issued by order (instruction) CEO. By agreement with the head of the structural unit, unworked work time The employee can make up during the accounting period.”

That is, one day the employer will put down the employee in the report card, for example, 6 working hours, and on the other day, when he makes up for these unworked hours, 10 hours. All changes in the working time schedule must be agreed in writing to avoid conflicts. In the application for leave without pay, the employee can indicate the day when he is ready to stay at work.

12. How to reflect the period "vacation at your own expense" in the report card?

• In the time sheet, the vacation period is indicated depending on the type of such vacation. So, to designate a period of unpaid leave, put:

Letters BEFORE or number 16 if the employee asked for leave for family reasons and other valid reasons;

Letters OZ or number 17 if the leave is the responsibility of the employer;

Letters DB or number 18 if the leave was granted under a collective agreement

The length of service that is calculated for the provision of annual paid holidays depends on the duration of unpaid leave.

13. How does a vacation at your own expense affect the vacation experience?

• Vacations at their own expense, which are provided at the request of the employee, are included in the length of service, which entitles them to the annual basic paid leave. But only in the part that does not exceed 14 calendar days during the working year ( Art. 121 Labor Code of the Russian Federation).
• If an employee rested more than 14 calendar days at his own expense, his working year is shifted by the number of days of excess.
• Days of unpaid leave are excluded from the calculation period when calculating average earnings. This exception does not depend on the duration of the rest ( sub. "e" p. 5 of the Regulation on average earnings, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922).

The period of stay on such a vacation does not participate in the insurance period, which is considered when assigning a pension ( Part 1 Art. 10 federal law dated December 17, 2001 No. 173-FZ).

Do you have any questions? Ask for free consultation to our experts!

E.Yu. answered the questions. Zabramnaya, lawyer, Ph.D. n.

Vacation at your own expense

Virtually all employees take unpaid leave from time to time (commonly referred to as self-employed leave). We provide answers to the most popular questions of accountants on unpaid leave.

The duration of unpaid leave is not limited by law

E.P. Zimina, Kolomna

Can an employee take, in agreement with the manager, a vacation at his own expense for six months?

: Maybe. After all, neither the minimum nor the maximum duration of this vacation is established by law. a Art. 128 Labor Code of the Russian Federation. An exception is established only for civil state and municipal employees who are granted such leave for a maximum of one year. d Part 15 Art. 46 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation”; Part 6 Art. 21 of the Federal Law of March 2, 2007 No. 25-FZ “On Municipal Service in the Russian Federation”.

In the application for leave, a reference to family circumstances is sufficient

D.L. Smirnitsky, Moscow

Can an employee in an application for unpaid leave simply refer to family circumstances (as good reason for registration of leave), without specifying what exactly they are?

: In principle, it can. In most cases, the issue of granting unpaid leave is decided by agreement with the employer. And in order to assess the validity of the reason, the manager must know about it. It is most convenient to officially inform the management about this reason in a vacation application.

And in some cases, the employee has the right not to ask, but to demand from the management to provide leave without pay. And the manager cannot refuse (for example, in the case of marriage registration, the birth of a child by an employee, etc. .Art. 128 Labor Code of the Russian Federation). In these cases, the reason must be indicated in the application.

It is impossible to send everyone on unpaid leave due to problems with the employer

E.P. Beloborodov, Orel

Our organization currently has almost no orders. Can all employees be sent on unpaid leave?

: No. Such leave is granted at the request of the employee himself, and not at the initiative of the employer. I am Art. 128 Labor Code of the Russian Federation. In your case, you need to draw up a simple one and pay for its employee m Art. 157 Labor Code of the Russian Federation.

For registration and payment for downtime, see: 2009, No. 2, p. 41

And even if you collect applications from all employees for vacation (that is, pretend that the vacation is granted on their initiative), then one of them can still complain to the labor inspectorate. And for the labor inspectorate, such a massive one-time vacation of all staff may raise doubts about the legality of your actions. It is possible that she can present the company with an order to eliminate violations of labor laws and restore violated employee rights. v Art. 357 of the Labor Code of the Russian Federation. And possibly, they will also fine the organization, along with its management, for violating labor laws. a Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

When an employee is entitled to leave, he himself determines its duration.

N.P. Krasheninnikova, Saransk

Our employee asked for unpaid leave for 5 days in connection with the wedding. The manager insists that the worker take only 3 days. He believes that the Labor Code of the Russian Federation does not oblige to provide the employee with strictly 5 days. Is the leader right?

: No, the leader is wrong. By law, in the event of marriage registration, the employer is obliged, on the basis of a written application from the employee, to provide him with unpaid leave for up to 5 days th Art. 128 Labor Code of the Russian Federation. In this case, the employer is obliged to satisfy the application of the employee. This means that the employee can indicate in the application any duration of vacation within the framework of statutory(in your case - within 5 calendar days).

The reason for going on unpaid leave may need to be documented

M.P. Golitsyna, Yekaterinburg

The employee asked for leave at his own expense due to the death of a close relative. But he did not submit any document confirming this circumstance. Is it possible to refuse to grant such leave with reference to the fact that the employee did not submit the appropriate document?

: It is forbidden. If a close relative of an employee has died, the employer does not have the right to refuse to grant leave a Art. 128 Labor Code of the Russian Federation. But the manager needs to make sure that this is exactly the situation. For this, a supporting document is requested, which the employee must submit. This was confirmed to us by the Ministry of Health and Social Development.

From reputable sources

Deputy Director of the Department of Salaries, Occupational Safety and Social Partnership of the Ministry of Health and Social Development of Russia

“ In cases where an employee has the right to demand (rather than ask) for unpaid leave (for example, in the event of the death of a close relative, the birth of a child, etc. .Art. 128 Labor Code of the Russian Federation), the employer has the right to request from him a document confirming the existence of an appropriate reason for issuing a vacation. But the employee has the right to submit such a document after leaving the vacation, since he may not have this document before the vacation is issued.

And if the employee, having been on vacation at his own expense, in this situation does not submit the appropriate document (for example, a document on the death of a relative), then he can be held disciplinary liable up to dismissal for a program l sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation. Indeed, in the order for leave at your own expense, the basis for its provision will be indicated.

Unused leave of a disabled person is not carried over to the next year

T.P. Orekhova, Lobnya, Moscow Region

A disabled person has been working for us for the second year. He has now learned that he is entitled to 60 calendar days of unpaid leave per year as a disabled person. And he demands that he be given 60 days for the current year and the same for the last. He says that last year's vacation he did not use should be transferred to this year. Is he right?

: No, not right. Vacation at its own expense, in contrast to the usual paid vacation, the employer is obliged to provide not annually, but only at the request of the employee a Art. 128 Labor Code of the Russian Federation. Therefore, if there was no such statement last year, then the employee simply did not exercise his right. And it doesn't carry over to the next year.

In the event of the death of a relative, another 5 days of vacation per year are required

A.A. Pakhomov, Krasnoyarsk

We have a pensioner who every year takes a vacation at his own expense for 14 days. This year he has already used his 14 days of vacation. But now his relative has died and he asks for another 5 days. Are we obligated to provide him with this leave in addition to the previously granted one?

A: Yes, we must. Leave in connection with the death of a close relative (as in the case of the birth of a child or registration of marriage) is guaranteed to each employee and has a certain special purpose. Therefore, regardless of whether you provided the employee with unpaid leave earlier and for how long, you are obliged to release him for up to 5 days th Art. 128 Labor Code of the Russian Federation.

Both at marriage and at the birth of a child, you can take 5 days

N.I. Mikheev, Bryansk

Our employee got married and took a vacation at his own expense for 5 days in connection with the wedding. In the same year, a child was born to him, and he again asks for 5 days of vacation. But 5 days of vacation are given to the employee for all such purposes in the aggregate: marriage registration, the birth of a child, the death of a relative. That is, he has already used up his 5 days this year. Am I thinking right?

: No, wrong. Each of the above reasons why an employee has the right to demand unpaid leave for up to 5 days is independent. An employee has the right to demand a vacation of up to 5 days in connection with the birth of a child in addition to the 5 days previously taken off by him in connection with the registration of marriage.

For a disabled pensioner - a maximum of 60 days of unpaid leave per year

R.F. Olyazaev, Kazan

Our employee annually takes 60 calendar days of unpaid leave as a disabled person. Now he is going to retire, but will continue to work. And after retirement, he wants to take another 14 days at his own expense as a working pensioner. Will we really be obliged to let him go for 74 days?

: No, they are not required, although your doubts are understandable. After all, according to the Labor Code of the Russian Federation, an employee has the right to unpaid leave To Art. 128 Labor Code of the Russian Federation:

• up to 60 calendar days a year as a disabled person;
• up to 14 calendar days a year as a pensioner.

But there is another position: an employee who has the right to unpaid leave for several reasons at once should, at his request, be granted leave of the greatest duration possible for one of the reasons. That is, in this case, 60 days a year as a disabled person. This opinion was expressed in Rostrud.

From reputable sources

Head of Legal Department Federal Service for work and employment

“ The employer is obliged, on the basis of a written application, to grant unpaid leave, in particular, to working old-age pensioners (by age) for up to 14 calendar days a year; working disabled people up to 60 calendar days th Part 2 Art. 128 Labor Code of the Russian Federation. Thus, the employer has no right to refuse to provide this leave.

However, it should be borne in mind that the summation of unpaid leave in the case when an employee is entitled to this type of leave at the same time as a working pensioner and as a working disabled person is not provided for by labor legislation.

This situation must be distinguished from those given in the two previous questions. They are about granting leave for a specific reason (death of a relative, birth of a child, etc.). And whenever this reason appears, the employee has the right to take a vacation at his own expense. And in this situation, unpaid leave is not granted for any specific reason, but has the character of benefits for certain categories of workers (pensioners, disabled people).

During a business trip for the main job, part-time leave is issued at your own expense

A.V. Rubtsova, St. Petersburg

An employee - an internal part-time job is sent on a business trip for the main job. Should we arrange for him a part-time leave at our own expense for the period of a business trip? And how should travel expenses be calculated - based on earnings only for the main job or for both?

: For "part-time" work, the employee will have to take a vacation at his own expense. Of course, this is not entirely correct. Indeed, according to the Labor Code of the Russian Federation, leave at one's own expense is provided only at the request (initiative) of the employee. But on the other hand, during the business trip, the employee does not perform his "part-time" work. Accordingly, the registration of unpaid leave is the most logical way out of this situation. This was confirmed to us in Rostrud.

From reputable sources

“There are no norms in the current legislation that allow resolving the situation when an employee works part-time and is sent by the employer on a business trip to the main place of work.

Paragraph 9 of the Regulations on the peculiarities of sending employees on business trips and approved Decree of the Government of the Russian Federation of October 13, 2008 No. 749 only the case of simultaneous sending of an employee on a business trip for the main work and work performed on a part-time basis (and external) is regulated.

In this situation, the employer, when deciding to send such an employee on a business trip, must simultaneously resolve the issue of documenting the absence of an employee at work performed on an internal combination basis. It seems logical to arrange leave without pay. ”

Rostrud

As for the payment for a business trip, then pay travel allowances only for the main job and calculate them only on the basis of earnings for the job for which he is a commander n p. 9 of the Regulations on the peculiarities of sending employees on business trips, approved. Decree of the Government of the Russian Federation of October 13, 2008 No. 749; Cassation decision of the Vologda Regional Court dated March 23, 2011 No. 33-1246.

Unpaid leave immediately after paid? Issue one command

I.G. Smirnova, Moscow

The employee asked for unpaid leave immediately after the annual. Is it necessary to issue two orders for each of these holidays separately, or is one order sufficient?

: No need. It is enough to issue one order for leave for unified form No. T-6. Fill it in:

• section "A" (annual basic paid leave);
• section "B" (annual additional paid leave, educational, without pay and others).

It is not necessary to make a vacation entry in the work book at your own expense.

O.L. Ivanitskaya, Kemerovo

I'm a businessman. My seller asks for a vacation at his own expense for 2 months. I wonder for what maximum period he can take it without losing the vacation experience? And is it necessary to record such a vacation in the work book?

: Without loss of leave (that is, work experience giving the right to annual paid leave), leave at your own expense can be taken only within 14 calendar days during the working year a Art. 121 Labor Code of the Russian Federation.

It is not necessary to make an entry in the work book on granting leave to the employee (including without pay).

During vacation, the director is better off not signing documents

W.K. Mikheev, Voronezh

Can the director sign documents during vacation at his own expense?

: This does not fully comply with labor laws. After all, vacation (including unpaid) is the time during which the employee is free from the performance of his labor duties. th articles 106, 107 of the Labor Code of the Russian Federation. You have a director on vacation who signs documents, that is, he partly does his job. For this he is paid a articles 15, 129 of the Labor Code of the Russian Federation. Formally, the labor inspectorate may regard this as a violation of labor laws. a Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, although this is unlikely.

It is better that the director, before going on unpaid leave, entrusts the performance of his duties to a deputy or other employee of the company.

Unpaid study leave is included in the vacation period

HER. Krapivina, Omsk

The employee requests unpaid leave for 15 calendar days to pass the entrance exams to the institute. Do we have the right to refuse him if the institute does not have state accreditation? Will such leave affect the employee's vacation experience?

: It is impossible to refuse to provide such leave due to the lack of state accreditation of the institute I am Art. 173 Labor Code of the Russian Federation. As for the question of whether unpaid study leave will affect the employee's vacation experience, there is no unambiguous answer to this question. On the one hand, the vacation period includes the time of vacations granted at the request of the employee without pay, not exceeding 14 calendar days during the working year. a Art. 121 Labor Code of the Russian Federation. In your case, the duration of the vacation is 15 calendar days. From this point of view, 1 day of unpaid study leave should not be included in the length of service giving the right to annual paid leave.

But on the other hand, the vacation period includes periods when the employee did not actually work, but he retained his place of work (position )Art. 121 Labor Code of the Russian Federation. And there is no exhaustive list of such periods in the Labor Code. As explained to us by the Ministry of Health and Social Development, the period of study leave should be included in the length of service in order to protect the rights of workers who combine work with study.

From reputable sources

“ The time of unpaid leave provided to the employee in connection with his training (in particular, for passing entrance exams to the university h Art. 173 Labor Code of the Russian Federation) exceeding 14 days during the year is included in the length of service, giving the right to annual paid leave. This is the period when the employee did not actually work, but in accordance with labor legislation, the place of work (position) was retained for him. After all, this study leave is provided for by law and is targeted.”

Ministry of Health and Social Development of Russia

The employee is not entitled to interrupt the vacation at his own expense due to illness

G.P. Egorova, Samara

The employee took a vacation without pay for 2 weeks and fell ill 2 days after the start of the vacation. Now he called and demanded to withdraw the leave due to the sick leave. Are we obligated to accept his feedback?

: The employee is generally not granted the right to withdraw leave (both paid and unpaid). Only the employer has the right to withdraw from vacation (with the consent of the employee )Art. 125 of the Labor Code of the Russian Federation.

The desire of the employee to terminate the vacation ahead of time at his own expense is understandable. He just wants to receive temporary disability benefits for the period of illness. After all, he is not entitled to benefits for the period of unpaid leave. O p. 1 h. 1 art. 9 of the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood”; p. 22 of the Procedure for issuing certificates of incapacity for work, approved. Order of the Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n.

Therefore, if you are ready to meet the employee halfway, then ask him to rewrite the application for unpaid leave only for those 2 days when he was healthy. After that, complete new order about vacation for the day. And mark the period of illness in the report card as a period of temporary disability and pay him an allowance during this time.

If you don’t want to redo anything (which you have every right to do), then explain to the employee that, by law, you are required to pay him sick leave only starting from the day following the end of his unpaid leave a p. 1 h. 1 art. 5, part 2, art. 5, paragraph 1, part 1, art. 9 of the Federal Law of December 29, 2006 No. 255-FZ.

You can not take unpaid leave with subsequent dismissal

I.V. Gladysheva, Balabanovo, Moscow Region

The employee wants to take unpaid leave for 2 months in order to find another job and quit us during this time. He is not going to come to work with us from vacation. We are ready to meet him. Is it possible to give him unpaid leave with subsequent dismissal?

: As explained to us in Rostrud, the Labor Code does not provide for the provision of unpaid leave with subsequent dismissal.

From reputable sources

“In accordance with Art. 127 of the Labor Code of the Russian Federation, upon a written application of an employee, unused vacations can be granted to him with subsequent dismissal (except in cases of dismissal for guilty actions). Within the meaning of this article and the provisions of other higher articles of Ch. 19 “Vacations” of the Code, we are talking specifically about paid holidays (basic and additional). The provision of unpaid leave to an employee with subsequent dismissal is not established by law.

Rostrud

So you better do it.

STEP 1. Take an application for leave without pay from the employee and issue an order for leave according to the unified form No. T-6 approved Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1.

STEP 2. After receiving a letter of resignation from the employee during his stay on vacation (he can bring such a statement in person or even send it by mail e Art. 80 of the Labor Code of the Russian Federation; Letter of Rostrud dated 05.09.2006 No. 1551-6) issue an order to terminate the contract in the form No. T-8 Art. 80 of the Labor Code of the Russian Federation.

At the same time, even if you provide an employee with unpaid leave followed by dismissal, nothing bad will happen.

During the period of unpaid leave, you can be fired, but for certain reasons

D.F. Tkachenko, Kemerovo

Please tell me, is it possible to dismiss an employee who took a vacation without pay?

: It all depends on the grounds on which the employment contract is terminated. So, during the vacation period (both paid and unpaid), an employee cannot be fired at the initiative of the employer. I am Art. 81 of the Labor Code of the Russian Federation. Of course, if this is not the liquidation of the organization and p. 1 h. 1 art. 81 of the Labor Code of the Russian Federation

I didn't find an answer to my question. My question sounded like this: "an employee wrote an application for a vacation at his own expense with subsequent dismissal" (and not just a vacation with subsequent dismissal) Please answer it if you can ?? thanks!

Answer

The current legislation does not provide for the possibility of granting leave at one's own expense with subsequent dismissal. The provisions of Art. 127 of the Labor Code relate only to paid holidays, the employee is given the right to choose either to receive monetary compensation for the holiday, or, with the consent of the employer, to use the paid holiday. Let us pay attention to the fact that the provision of leave with subsequent dismissal has always been considered only as a right, but not an obligation of the employer.

If an employee takes paid leave with subsequent dismissal, then before going on vacation, it is necessary to carry out all calculations with the employee, issue a work book and other documents, since after the vacation the employee and the employer will no longer be bound by obligations under the employment contract (,). This is due to the fact that the employee from the first day of vacation can no longer exercise his right to withdraw the application for dismissal, therefore, the issuance of documents should not be delayed.

If you have granted an employee unpaid leave in accordance with Art. 128 of the Labor Code, and the employee has expressed a desire to quit after its completion, then until the date of dismissal indicated by him, he retains the right to withdraw the application for dismissal. All personnel documents for the dismissal of such an employee in accordance with Art. 84.1. The Labor Code of the Russian Federation must be drawn up and issued to the employee on the last day of the notice period for dismissal.

The day of dismissal will be the last day of the notice period, i.e. in your case 02/24/2014, it is this date that you indicate in the order for dismissal and the work book of the employee.

This conclusion is based on the following:

The day of dismissal, as a rule, is the last working day of the employee, unless the employee retained his place of work. When granting leave at one's own expense, the place of work is retained by the employee for the entire duration of such leave. Accordingly, the day of termination of the employment contract (day of dismissal) in this case will be exactly the last day of the notice period for dismissal. If it coincides with the last day of vacation, then it is on the specified day that the employer is obliged to issue to the employee all the documents related to his work.

Note: in practice, cases of granting leave at one's own expense with subsequent dismissal occur (Appeal ruling of the Moscow City Court dated 10.10.2013 in case N 11-30425 / 2013). However, the legitimacy of granting such leave with subsequent dismissal remains controversial, because. labor law is not applied by analogy, and Art. 127 of the Labor Code applies only to paid holidays.

Details in the materials of the System:

1. Answer: Is it possible to arrange a vacation at your own expense with subsequent dismissal

Ivan Shklovets,

Deputy Head of the Federal Service for Labor and Employment

With respect and wishes for comfortable work, Tatyana Kozlova,

expert of the most personnel reference system "Sistema Kadry"

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