Can you quit if you are on sick leave? Can an employee quit while on sick leave? sick leave or absenteeism

Can an employee be fired while on sick leave? It is impossible to answer unambiguously questions about the possibility of dismissal of an employee who is being treated for illness.

Much depends on certain facts and circumstances. The reason for the breakup affects the possibility of dismissal labor relations, the desire of the employee to leave his post, as well as the presence or absence of an agreement with the employer.

Now that you know the answer to the question: “Is it possible to fire an employee if he is on sick leave?”, Let's move on to analyzing situations in which this procedure is possible.

By agreement of the parties

Often, when dismissing, there is an agreement between the parties. One of the parties initiated the break in relations, and the second supported this decision. The situation, which would have been ideally resolved two weeks after the application was submitted, was complicated by the sick leave to which the employee went.

In a situation where the agreement actually took place, the employee may be fired. To do this, on the appointed day, the employer notifies the employee that the relationship is broken and transfers or sends former employee work book. The employee can appeal this decision only if there was no written agreement at all.

At the request of the employee

Is it possible to be fired own will during sick leave? While on sick leave, an employee may rethink his life and want to change jobs, retire, or simply relax. To do this, they write an application and submit it to the employer.

Attention! The employer is obliged to accept an application from a citizen who is currently undergoing treatment for health reasons.

After the prescribed two weeks have passed, the documents are sent to the employee or handed over personally to his hands. The same process is carried out if the employee (employee) wrote a letter of resignation and went on sick leave.

Due to company liquidation

In connection with the liquidation of the company? The liquidation of an organization, declaring it bankrupt is one of the most important reasons why an employer can fire employees without their consent.

Regardless of whether the employees are on treatment or work as usual, if the fact of declaring an organization bankrupt or liquidating an enterprise has become known, such a decision cannot be challenged.

Based on medical opinion

The dismissal of an employee who is on sick leave in this case cannot be carried out without the direct participation of the employee. If an employee, for health reasons, is no longer able to perform his labor function, the employer does not have the right to fire him, especially if he is on sick leave.

So is it possible to fire a person who is on sick leave if the medical report indicates the impossibility of fulfilling labor obligations by the employee? What to do in this situation?

After waiting for the date of their vacation, the employer is obliged to offer the employee new position and the duties that he can perform. Only in case of refusal can a dismissal procedure follow.

Is it possible to fire an employee who is often sick?

It is unpleasant when an organization has a person who occupies a certain position, receives a salary, but is constantly absent from the workplace due to illness. Is it possible to reduce an employee who is on sick leave in this situation? Let's figure it out.

If an employee is constantly away from the workplace due to illness, his duties should be distributed among other persons. It is impossible to dismiss such a person, the Labor Code carefully protects the rights and interests of employees.

But upon the fact of a person leaving the hospital, the employer may offer the option of mutual consent to dismissal. Thus, we hasten to warn you about dismissal on sick leave at the initiative of the employer without the direct consent of the employee - it is almost impossible.

Voluntary dismissal of an employee

Is it possible to fire an employee at will on sick leave? If an employee decides to leave the organization of his own free will - care for treatment is not a hindrance to this action. However, you should still be aware of the nuances of such a dismissal procedure.

But what if you wrote a letter of resignation and went on sick leave? Is it possible to change the date of dismissal? If you have in your office an application from an employee about the desire to quit, then you must sign it.

As we know, after the date of signing, the employee is obliged to work for the manager for another two weeks. But what if the employee went on sick leave?

Treatment cannot affect the employee’s decision to stay in the organization in any way, therefore, if the employee’s application has not been withdrawn in two weeks of the so-called working off, the manager simply sends the employee his documents, including labor, and also notifies by phone that the relationship terminated. An employee can pick up papers in person.

So, now let's look at another case: what to do if an employee wrote a letter of resignation of his own free will while on sick leave? If an employee decides to quit while on sick leave, you have no right to interfere with him. The legislator has provided for the possibility of such a break in relations, which means that in order for the dismissal procedure to go without complications, you need to use the rules that are provided for by law.

The employee retains the obligation to notify the employer of his decision. To do this, the employee sends a letter of resignation to the name of the employer. The employer, in turn, must notify the employee whether he signs the paper or not.

If the employee manages to appear at the workplace within two weeks, it means that he independently receives a work book in his hands, but if he continues to be on treatment, he receives it by mail. However, there are cases in which the employee went on sick leave and wrote a letter of resignation, but the employer refuses to release the employee without working off, and we will consider this case below.

Working off

Work off - will the employee work after the sick leave? Is it possible to force him to work if 2 weeks have passed since the notice of dismissal and all this time he was on sick leave? Being on sick leave relieves the employee of the obligation to undergo working off.

But, unfortunately, not all employees are aware of their rights, and unscrupulous employers force those who left the hospital worker to work for another two weeks. This is unacceptable and the employer can be called to account for this.

If the employee left the sick leave earlier than the two-week period has expired, then he works out only the days remaining until the dismissal.

Downsizing

Now, let's try to find the answer to the following questions: “Is it possible to dismiss an employee who is on sick leave due to reduction?”, “Is it possible to dismiss an employee to reduce staff if he is on sick leave?”. If an employee went on sick leave at the moment when you decided to reduce the staff, you must wait for the citizen to leave after treatment.

The law does not allow employers to fire sick employees for this reason. Otherwise, if you send an employee a notice of imminent termination, he can appeal your decision in court, providing you with constant checks for compliance with labor laws from the labor inspectorate.

Registration procedure

How to dismiss an employee on sick leave by agreement of the parties? If you and an employee have agreed to end the employment relationship, but your plans were interrupted by a sick leave, do not despair. Your actions as an employer should look like this:

You sign a statement from the employee.
The two week period begins.
The employee is on sick leave. You specify the date of his release from the hospital.
If the date of exit from the sick leave fits within a two-week period, then the employee works out the remaining days and says goodbye to you, taking the work book.
If the sick leave period exceeds two weeks, on the day of the termination of employment, you notify the employee of this fact and send him a work book by letter with notification.

sick pay

Many employers are concerned about the question of how sick leave will be paid. There is an answer to this question, which is presented in federal law No. 225 FZ, December 29, 2006. In article five of this normative act states that until the moment of dismissal, the sick leave is paid in general order, depending on the experience of the warrior.

If the sick leave period exceeds the date of dismissal, then this period must also be paid, but in the amount of 60 percent of wages.Such sick leave is paid within the next 30 days after dismissal. If the month has expired, and the sick leave has not yet ended, then the funds for paying the sick leave cease to flow to the citizen.

Employer's responsibility

Wrongful dismissal during sick leave at the initiative of the employer is a frequent violation of the law, but is not always stopped due to the fact that the employees themselves are not aware of their rights. However, in accordance with the Code of Administrative Offenses, for the wrongful dismissal of an employee, the employer is subject to a fine in the amount determined by the court.

In addition, if an employee was fired in accordance with the liquidation of an organization that did not reach its logical conclusion, then in accordance with the Decree of the Plenum Supreme Court No. 2 dated March 17, 2004, the employee may be reinstated in his position. In this way, in the interests of employers to respect the rights and interests of their employees, because otherwise, they will bring upon themselves and their organization the close attention of the labor inspectorate.

Conclusion

Now you know whether it is possible to fire an employee who is on sick leave and how to do it. Follow the law, and you will never have problems that can lead to not the most pleasant consequences.

23Jan

Hello! Today we will talk about the dismissal of an employee on sick leave. In what cases it can be done, and in what cases it is absolutely impossible.

When can you fire an employee on sick leave?

Dismissal - Termination of labor relations between the boss and his subordinates.

There are several options for dismissing an employee on sick leave:

With the consent of the employee;
By decision of the authorities;
By mutual agreement of both parties;
Due to unforeseen circumstances beyond the control of either party.

If the boss decides to fire you, then this can happen in the following cases:

If the staff is reduced;
If the employee himself does not comply with job instructions;
If the activity of the company is terminated;
Due to the end of the term of the contract.

Unforeseen circumstances leading to dismissal include the following situations:

Admission to military service;
Arrest and detention;
If you have not been re-selected for a job in this organization;
And others.

Who cannot be fired on sick leave at the request of the head

Such employees include all employees who have illnesses and are on sick leave or on annual leave. Article 81 of the Code regulating the relationship between an employee and the person who hired him, indicates that such employees are not subject to dismissal at the will of their superiors. With the exception of such frequent cases as the termination of the existence and activities of legal entities. person or IP. In some cases, dismissal of the patient is still permitted by law.

Voluntary dismissal of an employee on sick leave

If an employee is sick and he has a desire to quit, then the law allows this to be done and does not restrict it in any way. In this case, the employee can write a statement. In such situations, the relationship between the employee and the employer ends from the date indicated in the resignation letter. Accounting does everything due payments on sick leave in due time and in accordance with all legislation.

If an employee was injured at work, but wants to quit, then the boss must sign a letter of resignation and at the same time pay his sick leave in the amount of 100% for the entire period of the disease.

Dismissal on sick leave by mutual agreement of the two sides of the employee and the employer

Also, dismissal is possible by agreement of the two parties, but if the employee falls ill during the period of working off the two-week term of dismissal, the employer must wait for him to return to work. After that, the accounting department fully calculates the sickness benefit, and then conducts the dismissal procedure in accordance with all the rules. But if the employee continues to get sick for more than the period set for working off, then he quits on the day that is fixed in the letter of resignation.

A person must come to work on the day of dismissal, pick up the calculation and work book. In this case, the employer is obliged to pay temporary disability benefits within 30 days after his dismissal, but already in the amount of 60% of average earnings. This calculation former employee may receive within six months after the restoration of working capacity, but no later. These situations are very rare.

Dismissal on sick leave at the end of a fixed-term employment contract

An ill employee can be fired when he has reached the end date of cooperation specified in the contract signed for a certain period. In such cases, it is not considered that the employee was fired, just that the term of his work has expired and there is no fact of dismissal itself. A contract concluded before a certain date is not subject to the restrictive measures of Article 81.

The courts on such issues explain that there is no fact of dismissal in the event of the date specified in the contract as the end of the cooperation period. In such a situation, the dismissal does not depend on the manager, because the term of cooperation agreed in advance has simply ended.

There is one reason why it is still possible to dismiss a sick employee, this is the untimely provision of a sick leave to the employer, that is, the concealment of the fact of the disease. If a person falls ill and does not give the sick leave to an accountant, he can be expelled for absenteeism with the corresponding records in the labor. In such a situation, a person has the opportunity to recover through the court if he brings a sick leave. This indicates that before dismissing the organization must find out the true reasons for the absence of a person at work.

But sometimes employees still abuse their right to "immunity" and deliberately do not inform the employer about the disease, or deliberately receive a sick leave. As a rule, this happens when an employee is laid off. This gives an employee who had a disability certificate in his hands the right to return to workplace by court order, and even receive an average monthly salary for the entire time of forced absenteeism (for the duration of the trial) through the fault of the employer. The court in such cases takes the position of the employer, and explains that the concealment by the employee of temporary disability is unacceptable.

If the dismissal occurs at the closing of the company

In this case, the employer is obliged to notify all employees about the liquidation of the organization two months in advance. An order must be issued, and all workers are familiarized with this fact against signature. If the employee did not have time to receive benefits, then he must apply to the FSS authorities (clause 4, article 13 of Law No. 255-FZ), which, in turn, will pay sick leave within ten days.

Dismissal if an employee is pregnant

The question of is also quite important, since she is also issued a certificate of temporary disability indicating the cause of the disease number 5. Often the employer does not know about the pregnancy of the employee, and for a number of reasons she is dismissed, then by court the pregnant employee must be reinstated to the workplace.

In the event of the end date of cooperation specified in the contract and signed by both parties, the employee cannot be fired, as, for example, in the case of a common illness, such an agreement is extended until the end of the pregnancy. But the pregnant woman works instead of someone until a certain date, after which it is not possible to offer the employee another place, then it is allowed to dismiss.

In the case when a contract was concluded with the expectant child before a certain period, it must be postponed until the pregnancy ends (birth of a child, miscarriage or medical abortion). At the birth of a child, dismissal occurs on the day the maternity and pregnancy leave ends. If a misfortune happened and the child died, the employee can be fired only after seven days, as the employer found out about it.

Documents for dismissal on sick leave

If the employee is nevertheless fired, then he should draw up a number of documents:

A letter of resignation, which is registered with the secretary and then signed by the employer;
An order stating that the employee has been fired, which indicates the fact that the final payment has been paid;
The sick list itself.

These documents are sent to the accounting department, where disability benefits are calculated and the final payment is made.

Calculation of hospital benefits

Sickness benefit is calculated according to the following algorithm:

Step 1: A sample of wages for the previous two years is made. If the employee did not work in this organization for these two years, then he had to provide a certificate 182n when applying for a job, which indicates the amount of salary in the previous place.

Step 2: The amounts of earnings for two years are added up, then divided by 730 or 731 days (the number of days for two years), we get the average daily earnings to calculate the benefit itself.

Step 3: Next, you need to know the worked insurance experience. It lets us know whether sick leave will be fully accrued, that is, 100%, 80% or 60%. We multiply the average daily earnings by the percentage received and get the amount with which the allowance itself will be calculated. For example, the salary for two years was 200,000 rubles / 730 days. = 273.97 rubles. If the experience is less than five years, then the percentage will be 60%, from five to eight - 80%, if more than eight years, then 100%.

Step 4: Further, 273.97 rubles * 80% \u003d 219.18 rubles, then we multiply this amount by the number of days on the disability sheet and get the amount of the benefit. Moreover, the first three days of sick leave are paid at the expense of the employer, and the rest at the expense of the fund. social insurance. The employee will receive a sick leave calculation minus income tax. If, for example, an employee was ill for 10 days, then in our case the amount of the accrued benefit will be 2190.18 rubles. In his hands, he will receive, minus income tax, 285 rubles. - 1905.18 rubles.

Step 5: When an employee, in the accounting department, he must receive a salary certificate in the form 182n, in order to provide it to the next job. He also receives a work book. If the retired person is not able to come, due to illness, for her, then he leaves a written permission to send the book by mail. The final payment is transferred to the card within three days from the date of signing the dismissal order, and the allowance will be paid after the direct calculation of the sick leave itself.

Deadlines for sick leave

The terms for the sick leave are different, determined depending on the cause. This may be caring for a child, for a sick family member, for a disabled person. General disease extended by the attending physician for 15 days, then the period is extended by the medical commission. There are a number of diseases when sick leave is extended for a longer time.

Conclusion

From all of the above, it becomes clear that if a person is sick and does not work until a certain date, but constantly, then he cannot be fired. And temporary employees who are pregnant can be fired if there is no way to offer another job. But if the employer decided to part with the subordinate, then sooner or later this will happen.

The Labor Code (LC) of the Russian Federation is a set of laws designed to protect the rights of working citizens. Dismissal is one of the inevitable aspects labor activity. The Labor Code of the Russian Federation clearly regulates the situations in which the employer is allowed to dismiss his employees. Consider an important point: is it possible to quit while on sick leave? own initiative and whether the employer can do it.

In addition to the interests of the employee himself, who wants to keep his working position and not be brought to disciplinary responsibility, sick leave also affects financial indicators organizations. We find out.

Legal options for dismissal on sick leave

Labor legislation unequivocally interprets that the dismissal of an employee who is on sick leave at the initiative of the employer is illegal (Article 81 of the Labor Code of the Russian Federation). When an employee applies to the courts for wrongful dismissal, the court, as a rule, takes the side of the applicant.

In this case, the employer will be obliged to reinstate the employee to same place work and pay him wages during forced absenteeism.

There are several situations that allow for the dismissal of a sick employee on legal grounds.
This is only possible in the following cases:

complete liquidation of the organization;
dismissal of an employee on sick leave at his own request;
dismissal by agreement of the parties;
expiration of urgent employment contract.

Voluntary dismissal is initiated by the employee himself, therefore, even while he is on sick leave, dismissal occurs on a general basis.

It is worth noting the fact that the employer does not have the right to refuse to dismiss the employee at his own request. The Constitution of the Russian Federation guarantees every citizen the right to freedom of choice of the type of labor activity (Article 37). Article 80 of the Labor Code of the Russian Federation regulates the procedure for terminating an employment contract: the employee must notify the employer of his desire to quit 2 weeks before the expected term of dismissal.

The nuances of the procedure for dismissal during sick leave

Despite the fact that the listed options for dismissal on sick leave are legal, there are some nuances that must be observed.

Additional Information

Special attention should be paid to dismissal during the probationary period. After all, it can cause a lot of problems. In practice, the termination of employment relations during the period of sick leave at one's own request for probationary period happens very rarely. In this case, it is necessary to notify the organization three days before the proposed dismissal and then by writing a statement of the established form.

If the termination of the employment contract is initiated by the employer during the work capacity of the employee, then if the employee falls ill before the scheduled date of dismissal, including on the last day of work, the dismissal procedure is suspended and resumed only when the citizen recovers and returns to the workplace.
If an employee leaves of his own free will and falls ill during a 2-week working off, then the working off in this case is not extended or transferred. This rule is also valid if the employee, while on sick leave, applies for dismissal. Thus, in fact, working off does not occur or occurs only partially if the employee manages to recover before the end of her term.
In addition, you can quit without working out in the following cases:
- when moving for permanent residence in another locality,
- when transferring a spouse to work in another area,
- during pregnancy,
- if it is impossible to live in this region for medical reasons,
- if you need to take care of a child or other family member,
- upon retirement, etc.
If an employee, having written a letter of resignation of his own free will, does not go to work on the day of dismissal due to illness, then the dismissal is still made.
If the employee returns to work after illness before the date of dismissal, then he must complete the remaining working days.
The calculation of sick leave payment when it is opened before the date of dismissal and after it differs significantly. If the employee fell ill before the termination of the employment contract, then the amount of the sick leave payment depends on the length of service and the average salary of the employee for the previous 2 years. When opening a sick leave after the date of dismissal, but not more than 30 days later, the calculation of the amount of payment does not depend on the length of service. You can read more about this on our website.

The table shows the procedure for terminating an employment relationship while on sick leave

Actions	Details
1. A citizen writes an application for sick leave. Together with him (or after) a letter of resignation is drawn up.	There must be written "of their own free will."
2. The employer examines the submitted documents.	From this moment begins the countdown of 2 weeks.
3. After 14 days from the date of notification of dismissal, the boss draws up an order to terminate the employment relationship.	It is presented for familiarization to the dismissed person. The corresponding entry is made in a special accounting journal. If the employee personally cannot come to the employer, you need to send a copy of the order by registered mail.
4. A record of dismissal is made in the work book.	Be sure to specify article 80 of the Labor Code of the Russian Federation. This means that the employee himself decided to terminate the relationship.
5. As soon as the order comes into force, the employee receives a work book and a payslip in his hands.	An act is being drawn up about this.
6. The dismissed person applies to the accounting department for the calculation.	After that, you can sign in the accounting journals for receiving funds in full, as well as for issuing to a subordinate work book.
7. If the employee refuses to sign, a special act is drawn up, in which all actions are recorded.	If it is not possible to make a personal visit to receive a “labor” one, you will have to send a notification about the need to make a calculation with a subordinate registered letter. Then a trusted person can receive money and a work book.

Making a letter of resignation

An application for dismissal of one's own free will, including while on sick leave, is written by the employee in any form.

The application must contain the following points:

surname, name, patronymic and position of the resigning employee;
the name of the organization in which the employee works;
the wording "of their own free will";
the date from which the citizen plans not to go to work;
date of preparation of the document;
personal signature of the employee.

It is important to know that if an employee is on sick leave, he also has the right to withdraw a letter of resignation even on the last day of the employment contract with the company. And if at that time he was not accepted into the company new employee, then after leaving the hospital permanent employee, the employer must continue to work with him.

Voluntary dismissal during sick leave

The process of dismissal of one's own free will starts with the filing of an employee's application for dismissal to the employer. This must be done at least 14 calendar days before the expected date of termination of the employment contract. After the application is submitted to the employee responsible for personnel matters, a 2-week period begins, otherwise called working off. The term "working out" does not appear in the Labor Code of the Russian Federation. 2 weeks is only the period during which the employer must find a replacement for the departing employee.

After 14 days, the organization issues an order stating that the employee has been fired. This document is given for review to the leaving employee under a personal signature, or, in the case of a territorial remoteness of a citizen, is sent to him by mail with acknowledgment of receipt.

Then personnel worker(accountant, employer) makes an entry in the work book of the employee about dismissal of his own free will, indicating Article 80 of the Labor Code of the Russian Federation and hands over the work. After that, the citizen is issued a payslip indicating the payments due to him. The final stage is the receipt of the calculation in the accounting department.

We are ready to answer your questions - ask them in the comments

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 shows arbitrage practice, situations associated with 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 departure from work. 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 of closing the temporary disability sheet has legal right 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 Labor Code. It must also be said that with regard to officials who committed this violation, administrative liability is imposed in the form of penalties:

The amount of the fine for private entrepreneurs varies from one to five thousand rubles.
The amount of the fine for legal entities varies from thirty to fifty thousand rubles.
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 a medical Center confirms the veracity of the information provided by the employee, the management of the company 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 professional activity, where the quality of human health depends on how the performance production process and the health of other workers.

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 can set off all the days when the employee was not on his job. workplace like walking. 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. Absence 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 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:

The total amount of wages for the last twenty-four months is determined. In case if seniority 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.
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.
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.
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 total duration sick leave. All of the above actions allow you to find out the size 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. Cash due to the worker are transferred to a bank card within three working days from the date of termination of the employment contract.

The labor legislation of the Russian Federation clearly regulates various aspects of the relationship between employees and company management. Usually, many norms still protect the rights of workers more. At the same time, many are concerned about the question of whether it is possible to dismiss an employee who is on sick leave. Dismissal and sick leave are not compatible only if the employer is the initiator. But even if the person leaving himself wished to leave, then the sick leave upon dismissal is still submitted with certain reservations and features that should be taken into account by both parties.

Article 81 of the Labor Code of the Russian Federation clearly provides: the dismissal of an employee during a period of temporary disability is strictly prohibited. It is also impossible to dismiss an employee who is currently on vacation at the initiative of the employer.

At the same time, it is very important that the employee comes to work on the first working day with documents confirming the fact of illness. Formally, the absence of such a document gives the employer the right to recognize the absence of an employee at the workplace as simple absenteeism. Then the dismissal will be completely legal.

They cannot fire a person who is sick himself or is on sick leave, caring for a sick child.

The only exceptions are cases when a person arrives on a continuous sick leave for more than 12 months. Usually, in such cases, a MSEC is assigned and the employee is given a disability. If he himself did not provide such conclusions, then the management may initiate a commission to obtain an official conclusion on disability.

Important!

Employees, having received an answer whether it is possible to dismiss an employee who is on sick leave, begin to simply abuse this right. Cases have been recorded when employees received disability certificates fraudulently, and then shared their impressions of a fun vacation.

It's not worth the risk! The presence of a document in this case will not save you from negative consequences if such is proved. Formally, it provides for compliance with the hospital regime during the period of validity of the disability certificate. If a person has previously recovered (even if he was really sick before), then he must comply with the regimen.

If the regime is violated, sick leave will be equated to invalid, and absence from the workplace - to absenteeism. That's why it's better not to risk it.

Employee initiative

The situation is completely different with the question of whether it is possible to quit while on sick leave at will.

According to Article 80 of the Labor Code of the Russian Federation, a person can write a letter of resignation of his own free will at any time. Including on such grounds, dismissal during a period of temporary disability is possible. Restriction in this right is considered illegal. That is, if an employee brings an application, but at the same time he has a disability sheet, then the employer must accept this application in any case.

Further, the dismissal of an employee who is on sick leave occurs in the standard mode. An order is issued, documents are issued. The only question is timing. If a person belongs to a preferential category of workers (pregnant women, disabled people, pensioners) and he knows in advance the end date of the sick leave, then you can simply indicate the last day of illness, saving yourself and the organization from unnecessary trouble. You can also negotiate with management.

But it will be quite legal if the manager demands to work for another 2 weeks, which is assumed if the termination of the employment contract occurs at the request of the person himself. In this case, you also need to take into account: sick leave is included in working out. That is, if there is a dismissal during sick leave, then this time will be taken away from 2 weeks. If the date of termination of the employment relationship fell on the period of disability, then on this day the dismissed person is invited to the personnel department for documents and settlement payments.

Further, if the dismissed person brought sick leave later than that day, then he is entitled to additional payments. Payment of the sick leave to the dismissed employee will occur upon the provision of the document. Simply put: at the time the work book is issued, the employee will be given: salary for the period worked, compensation for unused vacation and other payments, if any collective agreement. The law does not provide for mandatory severance pay if a person quit on their own initiative.

Payment of sick leave upon dismissal, if it has not yet been closed, is not made.

The employer will be required to pay sick leave after it is granted. Such a sheet is issued only after the completion of the disease. In this case, only a certificate of sick leave is provided upon dismissal to the personnel department. Further, when the sheet is issued by the doctor, the employee will provide it to the organization. Even if he is no longer her employee, sick leave payment upon dismissal is provided, or rather, after the termination of the employment contract.

Example: An employee was fired on February 10th. At the same time, he has a sick leave from February 2 to February 15. That is, on February 16, he may well apply to the organization to receive additional payments. Even if there has already been a dismissal on sick leave, the employer still pays for the period of incapacity for work until February 15.

In case of violations

If, nevertheless, the employer decided to dismiss the employee who at that moment was on sick leave, then it is necessary to apply to the Court for the protection of their rights. In fact, it is quite possible to apply also to the Prosecutor's Office or Labor Inspectorate, but these organizations do not have the necessary competence to oblige the company to reinstate the person in the position. After proper checks, the representative of the organization will apply to the Court for an appropriate decision.

That is why, in order to speed up the restoration at work, it is best to file immediately statement of claim to court. To do this, you can take any type specimen, approved for 2018, by entering your data there. It is customary to state in a claim:

basic information about the plaintiff and defendant;
the essence of the problem. Directly indicate when a person was fired and at the same time on what days he was on sick leave;
requirements. Here, attention is focused on the fact that restoration at work is required, as well as financial compensation for forced downtime (calculated as average salary for each day). It is also possible to claim non-pecuniary damage, but in practice the amount is usually reduced by the court to a symbolic value or canceled altogether;
list of attached documents. You will need to attach an order for dismissal, as well as the disability certificate itself.

The employee will be able to file a claim personally or transfer the claim through his official representative (if there is a notarized power of attorney). It is also possible to send a claim by registered mail, but only beforehand everything will need to be notarized (copies of documents), as well as prepare an inventory of the attachment.

The responsibility of the employer in each case will be determined individually, based on what other violations will be identified. If such offenses have already taken place and labor laws are systematically violated, then a temporary cessation of economic activity is quite acceptable.

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