The dismissal of an employee is a simple and fairly quick process if the employer and employee comply with all norms and do not violate the law.

However, the dismissal of a subordinate during sick leave has a number of nuances.

In practice, there are cases when an employee quits, but is forced to work for two weeks stipulated by the contract, however, if the employee takes a vacation or sick leave at that time, he does not work, and the dismissal, in turn, takes place according to the usual mechanism.

Refusal to dismiss by the employer may incur both administrative responsibility and up to the liquidation of the enterprise by the Labor Commission in some cases.

When is it allowed to dismiss an employee who is on sick leave?

Dismissal is permissible in three cases:

1. By my own will. Dismissal from the initiative of the employee is allowed at any time according to the usual mechanism.
2. If the employee continues to get sick, but previously wrote.
3. Dismissal upon liquidation of the enterprise. If the organization is liquidated, the employer is forced to notify the trade union 3 months in advance, and 2 months before the liquidation of all employees. This is done so that the liquidation of the enterprise does not take employees by surprise. In this case, the dismissal occurs according to a different procedure, a person who is temporarily unable to work is transferred to another enterprise or employed again, the employer does it himself.

At the initiative of the employer, an employee who is on sick leave may be fired exclusively in case of complete liquidation of the enterprise.

Dismissal during sick leave at the initiative of the employee

Since the employee himself is the initiator of the termination of the employment contract, dismissal during sick leave is permissible under current legislation. A similar dismissal mechanism is also applied in the case.

During the dismissal of an employee while on sick leave, the procedure itself takes place within the framework of the established Labor Code of the Russian Federation:

1. filing a letter of resignation two weeks before leaving the company,
2. preparation by the employer of all necessary documents,
3. settlement with the employee (including the payment of sick leave and vacation pay).

Violation by the employer of the norms of the Labor Code of the Russian Federation is strictly punished by the Labor Commission, therefore, dismissal often takes place calmly and within the established limits, because it is more expensive for the employer to break the law.

Planning to fire your co-worker? A detailed procedure for the dismissal of an external and internal part-time worker is described in.

What should an employer do if the illness of his employee dragged on?

Sometimes situations arise when an employee has filed a letter of resignation, but falls ill and is on sick leave for a two-week period prescribed by the Labor Code of the Russian Federation.

If the sick employee leaves by the date of dismissal from the hospital, the dismissal occurs according to the usual procedure, then the employee is also billed.

However, if the employee is on sick leave, and the date of dismissal has come to an end, the dismissal still occurs.

Since the employer or employer himself does not have the right to change the date of dismissal without the knowledge and consent of the sick employee.

A high level of mobility in the labor sphere contributes to a quick change of employer. But quite often you can encounter difficulty in the form of mandatory working off upon dismissal.

When it comes to some more profitable place of work, where waiting is impossible, the employee is interested in the question of whether it is possible to quit without working off. Below we will discuss issues related to the termination of the contract and give recommendations on how to avoid a two-week working off.

Can I quit my job while on sick leave?

The Labor Code, namely Article 81, prohibits the dismissal of an employee during a period of temporary disability. This norm is imperative, but if you look in more detail, you can find a window in the law. The legislator, having issued a rule prohibiting the dismissal of an employee during his sick leave, was intended to protect the worker from the actions of an unscrupulous employer. But if the desire to change jobs comes from the employee himself, who is in a state of illness, how does the law regulate this issue?

According to Article 80 of the Labor Code, if the initiative for dismissal comes from the worker, then the employer has no right to interfere with him, even if the desire appeared during the period of incapacity for work.

The same provision is confirmed by the practice and letter of the federal labor service dated September 5, 2006 No. 1551-6. The above law indicates that an employee has the right to quit, provided that the employer is notified of his decision at least two weeks in advance. There is an opportunity to warn not only when the employee is working, but also if he is on sick leave. In this situation, the date of dismissal may fit into the framework of the sick leave.

The same letter confirms the possibility of the worker both to personally apply for termination of the contract, and to send the document by letter. In this case, the employer must make all payments related to the dismissal and additionally pay sick leave.

For your information

It should also be borne in mind that the employee may at any time before the date of dismissal, withdraw from his decision.

The procedure for filing documents for dismissal

In the modern world, any action is accompanied by a pile of documents, and the process of changing jobs is no exception. Here it is extremely important to wisely approach the formalization of dismissal, because if the procedure is not followed, this may threaten the employer with sanctions and additional costs.

Schematically, the process of terminating an employment contract is as follows.

1. The employee writes a letter of resignation from work of his own free will. Such a document must be signed by oneself. If a citizen is on sick leave, he can send a paper using the mail. This option is very convenient if the employer refuses to sign the application. And the deadline for signing the application is important, since from this date the time for a mandatory warning begins to flow. Russian legislation does not provide for a unified form for such a statement, but it must contain the following information:

• employer data;
• employee data;
• request to be dismissed from a certain position;
• date, signature and transcript of the signature.

The organization issues a unified form order to terminate the contract. The order indicates the need for working out and its period. The employee studies the content of the order and puts a mark about it.

It is not necessary to be at the workplace during working hours. These days, the employee may be on sick leave or on vacation, and this is also considered working off.

The amounts of money that must be accrued to the employee are transferred to his salary card.

Entering an entry on the termination of the employment contract in the work book of the employee.

Preparation and issuance of all necessary copies of documents, as well as a certificate of the composition of earnings for the previous two years for calculating sick leave.

The procedure for terminating an employment contract is regulated by Article 84.1 of the Labor Code.

How to quit without a job

As a general rule, the employee must notify his decision to leave the position two weeks in advance. There are exceptions to this rule.

1. If we are talking about an employee on probation, then the time is reduced to three days.
2. In the event that the dismissed employee is a manager, the notice period is extended to a month.

Such terms are provided so that the employer has the opportunity to find a person for a vacant position, and there is no downtime in production.

Many are interested in the issue of dismissal without working off during sick leave. The Rostrud letter on this matter has its own opinion, which is addressed in favor of the workers. More precisely, it says that the requirement of the employer to work out sick days before terminating the employment contract is illegal.

The Labor Code obliges you to notify your decision to leave work 14 days before the date of the proposed dismissal, whether the person will work, rest or be treated. That is, the situation in which an employee writes a letter of resignation and immediately goes on sick leave for two weeks, then quits, is absolutely legal and normal.

At the same time, the employer is obliged to dismiss the employee on the day indicated in the application, regardless of whether the last sick leave has ended, and is not entitled to insist on continuing the work.

What payments are due

Dismissal does not deprive an employee of the right to demand all payments due to him. These include:

1. Salary for hours worked. Paid for all days worked, including the last working day.
2. Payments for unused vacation. It is calculated together with the salary, and, if we are talking about months, rounded up.
3. Bonus in proportion to hours worked. If the organization provides for bonuses, then the leaving citizen has the right to count on such a payment in his favor. The amount of the bonus is determined on the basis of the bonus document adopted by the organization, and is calculated in proportion to the time that the employee has worked.
4. Severance pay, if provided for by local acts of the organization. Few organizations can boast of such a payment, most often it is provided for in senior positions and in large companies.

All payments listed must be accrued to the employee on the day of dismissal. It does not matter on what day, usually, payroll takes place.

Reading 10 min. Views 31 Published on 07.10.2018

The question of whether it is possible to dismiss a person who is on sick leave is of interest not only to employers, but also to the workers themselves. Each person can face a serious illness that will cause disability for a long period of time. People who find themselves in a similar situation are afraid of losing their jobs. In order to avoid possible conflicts with management, it is necessary to carefully study the current legal framework. In this article, we propose to consider whether a person can be fired if he is on sick leave.

Dismissal of an employee at the initiative of the employer while he is on sick leave is not allowed

Dismissal of an employee on sick leave: legal framework

The resolution of disputes related to dismissal is regulated by the eighty-first article of the Labor Legislation . This document states that the dismissal of an employee who is on sick leave is strictly prohibited.. In this situation, the right to terminate the employment agreement is granted only to the worker himself. It is important to note that these rules also apply to people on annual leave.

As judicial practice shows, situations related to dismissal during sick leave are observed quite often.

The primary task of the control bodies is to identify the initiator of this process. It is important to note that the head of the dismissed employee who is on sick leave will face penalties. However, there are a number of exceptions to this rule, which we will discuss a little later.

When dismissal is prohibited by law

As we noted above, the employer cannot dismiss those employees who are absent from their workplace due to illness or annual leave. The eighty-first article of the Labor Law states that all workers belonging to the above group cannot be dismissed at the request of the manager.

However, current legal regulations allow the dismissal of such employees in certain situations. It can be either the bankruptcy of a company or the liquidation of a private company. In these cases, the head of the company is obliged to terminate the employment agreements with all employees.

Acceptable Situations

The dismissal of an employee who is on sick leave is a special process that has a number of features. The personal desire of the management to terminate the contract with the employee is regarded as a gross offense. It is important to pay attention to the fact that the employer, who has realized his mistake, can reinstate the employee in his position until the ballot is closed. In this case, the employee will continue to fulfill his obligations, and the company's management will avoid possible negative consequences.

When an employee is dismissed during a period of illness, the main thing is to determine who exactly is the initiator of the dismissal

A worker who has not been reinstated at the time the sheet of temporary disability is closed has the legal right to apply to the labor inspectorate or court. As practice shows, the court recognizes the actions of the employer as unlawful. In this case, the employer must reinstate the dismissed worker and pay financial compensation. This rule is enshrined in Article 394 of the Labor Code. It should also be said that in relation to officials who committed this violation, administrative liability is imposed in the form of penalties:

1. The amount of the fine for private entrepreneurs varies from one to five thousand rubles.
2. The amount of the fine in relation to legal entities varies from thirty to fifty thousand rubles.
3. The amount of the fine in relation to officials varies from one to five thousand rubles.

Employee Initiative

An employee on sick leave has legal grounds for voluntary dismissal. In this situation, the employer is not threatened with penalties from the control authorities. In the event that an employee opens a sick leave on his last working day, the company administration is not required to postpone the dismissal. The only exception to this rule is the situation in which the employee withdraws his application.

Special attention deserves the situation in which the employee applies for termination of the contract after the opening of the sick leave. In this case, the employee may be fired on the day indicated on the application page or on the last day of work. It is important to note here that the worker's illness itself cannot be a reason for extending this period.

Prolonged disability

People with poor health often apply for sick leave. In the event of a long absence from the workplace, the employer may think that the employee deliberately “invents” illnesses for himself and provides false documents. As practice shows, situations associated with deliberate deception of management are far from uncommon. But in most cases, the reason for the absence from work is precisely the loss of ability to work.

In order to check the legality of the form provided by the employee, the company's management needs to contact the representatives of the medical center who issued the bulletin. Sending a formal request allows you to find out whether this employee was actually treated at a certain time period. This information is not covered by medical secrecy, which makes it easy for an employer to recognize an attempted deception. It should also be noted that not all medical centers have the right to draw up a list of temporary disability.

If the medical center confirms the truthfulness of the information provided by the employee, the company's management does not have the right to dismiss the employee. There is no regulation in the current laws that limits workers in the number of sick leaves issued during the year. This means that this employee must continue to perform his functions as before. Also, the employer is given the right to insist on the collection of a medical commission for the purpose of conducting an examination. The main task of the commission is to identify the level of compliance of the employee with the position he occupies, taking into account the state of health. This approach is often practiced in those areas of professional activity where both the effectiveness of the production process and the health of other workers depend on the quality of human health.

The dismissal of a citizen while he is on sick leave, confirmed by a certificate of temporary disability, is impossible in accordance with the provisions of Art. 81 TK

In the event of a negative response from a medical institution, refuting the fact of issuing a sick leave, the employer may count all the days when the employee was not at his workplace as absenteeism. In relation to such workers, disciplinary responsibility is assigned in the form of a strict reprimand or termination of the labor agreement.

The hospital bulletin is an official document indicating a temporary disability. Lack of this document may prevent you from receiving compensation. In addition, in the absence of a document, all days when the worker was absent from his workplace are counted as absenteeism, which is a gross disciplinary violation.

Company liquidation

Having dealt with the question of whether it is possible to dismiss for frequent sick leave, you should move on to the situation associated with the liquidation of the company. This procedure is carried out according to the standard procedure, which implies the notification of all personnel of the impending closure of the company sixty days before the cancellation of the business.

In this situation, the company's management needs to issue an appropriate administrative act, which will be handed over to employees for review. Employees who do not have time to receive compensation payments can apply to the Social Insurance Fund. This body will accept sick leave and pay compensation within ten days.

Downsizing

Unlike the situation described above, it is impossible to dismiss an employee who is on sick leave due to staff reduction. These actions of the management can be regarded as a gross violation of the law.

Some people confuse downsizing with a company reorganization process. In the event that the management decides to close a branch where a person who is temporarily absent from work due to illness works, then the actions of the employer do not violate the law.

By agreement of the parties

The agreement of the parties is one of the main reasons that can be used to dismiss an employee who is on sick leave. However, in this case, the employer must wait for the employee to fully recover. The accounting department of the enterprise is obliged to pay compensation, and then prepare all the documents necessary for dismissal. However, in the event that the duration of the illness exceeds the total period of working out, the worker may be dismissed on the day indicated in the application for termination of the employment contract.

On the last day of employment, the employee must collect the money due and the work book. If an employee completes the ballot within one month from the date of dismissal, the employer is obliged to pay compensation in the amount of sixty percent of the employee's average income. The worker is given the right to receive this money within six months from the date of dismissal. As practice shows, the development of such situations is observed quite rarely.

The norm determines that an employee cannot be fired, regardless of the reason for which he is in a state of disability.

For absenteeism

In the event that the employee does not notify the company's management of his illness, then the days of absence from the workplace can be recorded as absenteeism. The development of this situation may lead to dismissal due to violation of labor discipline. It is important to note that there is no regulation in the current regulations obliging the worker to inform the employer about his illness.

In order to reduce the risk of making mistakes, the company's management must establish the real reasons for the absence of a worker. This can be done either by phone call or by sending a formal request to the worker's home address. Quite often there are situations when a sick employee does not have the physical ability to notify his superiors about the illness.

How long can sick leave last?

The duration of the temporary disability certificate depends on the reason for taking the sick leave. In addition to diseases and injuries of the employee himself, it is allowed to take sick leave to care for sick family members, a child or a relative with a disability.

As a rule, the standard duration of sick leave due to illness is about two weeks. In order to extend the bulletin, the patient must pass a medical commission. It should also be noted that there are certain diseases in which the recovery period can be several months.

sick leave payment

Having considered the question of whether it is possible to dismiss an employee who is on sick leave, one should deviate a little from the topic and talk about the methodology for calculating the amount of compensation payments. When compiling calculations, the accountant of the enterprise must adhere to the following algorithm:

1. The total amount of wages for the last twenty-four months is determined. In the event that the work experience of an employee in a particular company is less than two years, then the worker must provide a certificate of income from the previous place of employment.
2. All employee income received in twenty-four months is added together. The result obtained must be divided by seven hundred thirty or seven hundred thirty-one days. These calculations allow you to find out the size of the average daily earnings of a worker.
3. At the next stage of calculations, it is necessary to determine the total amount of insurance experience. The definition of this indicator allows you to identify the rate at which the amount of compensation will be calculated (60, 80 or 100 percent). Suppose that the total salary of an employee for twenty-four months amounted to five hundred thousand rubles. In this case, the average daily earnings will be six hundred and eighty-five rubles.
4. The amount of average daily earnings must be multiplied by the interest rate corresponding to the length of service. If the insurance period of an employee exceeds eight years, then the total amount of average earnings is taken into account when making calculations. The result obtained must be multiplied by the total duration of the sick leave. All of the above actions allow you to find out the amount of the compensation payment. It is important to note here that the first three days of temporary disability are paid by the company's management, and the remaining days are compensated by social insurance.

Dismissal of an employee during the period of incapacity for work is possible only if there are exceptional circumstances for making such a decision

At the end of the dismissal procedure, employees of the accounting department are required to issue a certificate of income to the employee. This document is provided to a new employer at the time of employment. Together with this act, the completed work book is transferred to the employee. In the event that an employee cannot personally pick up the documents, he can give the company management a written notice with a request to send all documents by mail. The funds due to the worker are transferred to the bank card within three working days from the date of termination of the employment contract. Odnoklassniki

Dismissal and sick leave

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

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

In practice, it is not uncommon for the date of dismissal to fall on the period of illness or pregnancy of an employee. In this case, the right to dismissal cannot be limited due to the requirements of the same Part 1 of Art. 80 of the Labor Code of the Russian Federation.

NOTE! It is impossible to dismiss an employee in the presence of a sick leave at the initiative of the administration of the organization for disciplinary violations or for other reasons (part 5 of article 81 of the Labor Code of the Russian Federation).

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

Guarantees to the employee and payment of sick leave upon dismissal

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

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

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

NOTE! When aftercare in a sanatorium, the total period of sick leave payment should not exceed 24 days; at the same time, the fact of dismissal does not increase or interrupt this period, as indicated by paragraph 2 of Art. 6 No. 255-FZ.

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

Sick pay after retirement

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

IMPORTANT! For the calculation of benefits in this case, the reason for dismissal does not matter. This may be the desire of the employee, the initiative of the administration of the organization, etc.

The duration of payment for a sick leave employee or an active employee is the same. That is, a sick employee within 1 month after the dismissal of an already unemployed employee of the organization will also have to pay benefits until his health is restored. Exceptions to this rule, provided for in paragraphs. 2-4 st. 6 of Law No. 255, for workers who have become disabled, undergoing aftercare in a sanatorium or working under fixed-term employment contracts for up to 6 months, are also saved.

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The amount of payments to working and laid-off employees

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

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

The amount of insurance experience	Percentage of average earnings
Up to 6 months