On the day of dismissal, an employee on sick leave. "Hospital" on the day of dismissal: the actions of the employer. On their own initiative - dismissal without obstacles

Conflicts with employees need to be not only resolved, but also prevented. Unfortunately, there are situations when this is quite difficult to do. For example, an employee opens a certificate of incapacity for work on the day of dismissal upon termination of the employment contract at the initiative of the employer. What to do? Pay benefits or is the employee considered to have quit? What can be done to prevent such cases?

So, an unusual situation has arisen in your company. The employee is dismissed on the initiative of the employer in accordance with one of the clauses of Part 1 of Art. 81 of the Labor Code of the Russian Federation, for example, to reduce staff or number, or for other reasons, say, under Art. 278 of the Labor Code of the Russian Federation (additional grounds for terminating the employment contract with the head of the organization). The procedure for termination of the contract has been followed, the employee has been familiarized with the dismissal order, he has been issued a work book with a record of dismissal and a calculation has been made. And the next day, or after a week, or perhaps already in court, the employee presents the employer with a sick leave open on the day of dismissal, demanding to cancel the order for his dismissal.

The question is what to do in this situation? Satisfy the employee’s demand and cancel the dismissal order, continuing his employment relationship with him, or leave everything as it is, waiting for the conflict to develop? Formally, the date of dismissal at the initiative of the employer and the date of opening of the certificate of incapacity for work coincide. It would seem that there is reason to apply Part 6 of Art. 81 of the Labor Code of the Russian Federation, containing a ban on the dismissal of an employee during his temporary disability, and cancel the disputed order.

But in judicial practice, a concept has emerged over the past few years. inadmissibility of abuse of the right by the employee. The Labor Code of the Russian Federation does not contain the concept of “abuse of the right by the employee”. However, it is disclosed in paragraph 27 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter - the resolution of the Plenum of the RF Armed Forces No. 2): unlawful actions by an employee to conceal temporary incapacity for work day of dismissal.

Despite the fact that the labor legislation does not establish the obligation of the employee to notify the employer of the opening of the sick leave, the intentional concealment of this fact on the date of dismissal (if there is an opportunity to “make it public” to the employer) is regarded by the courts as an abuse of the employee's right.

Faced with a similar situation, the employer needs to find out whether this was an abuse of the right when the employee intentionally took a “sick leave”, or if he became disabled due to reasons beyond his control. Let's consider them in more detail.

Situation one: the employee “fell ill” on purpose

The employee, knowing about his upcoming dismissal “under the article,” prudently provided himself with a sick leave on the day of the upcoming dismissal before the completion of the dismissal. Say, just before the start of the working day, I visited a doctor and issued a certificate of incapacity for work, and at the time of signing the order to dismiss and receive a work book I already had a certificate of incapacity for work opened this day. In this case, there is dishonesty of the employee, i.e. the very “abuse of law” referred to by the Plenum of the RF Armed Forces in Resolution No. 2.

The above example is not significantly different from the merits of those cases that are regularly reviewed by the courts since 2004. See, for example, the following judicial acts: rulings of the Moscow Regional Court of 12.01.2012 in case No. 33-601 / 2012, 33-29485 / 2011, of the Moscow City Court of 03.06.2011 in case No. 4g / 6-4333, of 24.11 .2010 in the case No. 4g / 1-10400, St. Petersburg City Court of September 23, 2010 No. 13190. The only difference is that in the above judicial acts, the employee has already had a disability certificate for some time (sometimes quite long) at the time of dismissal. And in our case, the employee only on the day of dismissal decided to provide himself with a "sick leave". But both in the given judicial practice and in the situation we are considering, there will be dishonesty of the employee, abuse of his right not to be dismissed during the period of disability.

So, the cases examined by the courts, and our example are characterized by the following signs of employee dishonesty:

IN the day of dismissal, the employee does not show sick leave or a copy of it. Perhaps, for some reason, the employee at the time of dismissal does not have a sick leave or a copy of it with him.
Employee not communicate either verbally, or in writing, or in any other way to any of the persons conducting the dismissal procedure, or to their management about his open sick leave by the time of dismissal.
   Note that the regulations do not indicate which of the employer's representatives should be informed about the availability of a disability certificate. The court draws its conclusions on the basis of specific circumstances.
Arbitrage practice

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The cassation ruling of the IC on Civil Cases of the Moscow City Court of July 22, 2010 No. 33-22024 / 10 states that the plaintiff reported that she had a sick leave to personnel officers and the Secretary of the Director General. The defendant tried to refute this argument by the fact that the employee did not personally report on her “sick leave” to the general director. However, the court did not take this argument into account, considering the message on the incapacity certificate to the personnel service and the secretary of the director by proper notification of the employer about his sick leave. Moreover, from the circumstances of the case, the court found that the Director General avoided communicating with the plaintiff. This conclusion of the court on the absence of abuse of the right by the plaintiff seems logical and sufficiently substantiated.

   It should also be noted that the employer may become aware of the opening of the sick leave by an employee not only due to the actions of the employee. In this case, regardless of whether the employee reported his temporary incapacity for work or otherwise became known, it is no longer possible to talk about the employer's ignorance of the sick leave.
Arbitrage practice

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This situation is illustrated by the determination of the Leningrad Regional Court of March 30, 2011 No. 33-1566 / 2011. The case refers to the fact that the plaintiff’s immediate supervisor reported her disability in a memo addressed to the director general of the enterprise. Thus, a proof of the employer's awareness of the open sick leave of the plaintiff is the mention of him in this document. The trial court dismissed the plaintiff's claims because there was no evidence that she herself had reported her illness. However, the Leningrad Regional Court took into account the employer's awareness of this. In this case, the court did not discern an abuse of the right by the employee.

   Another decision examined an interesting situation where on the day of dismissal the plaintiff was incapacitated, but neither the employee nor the employer was aware of the issue of the sick leave.
Arbitrage practice

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The plaintiff was dismissed on December 22, 2008, however, a disability certificate was issued to her the day after her dismissal, December 23, 2008, but on December 20, 2008, due to the fact that December 19, 2008, at 8 p.m. 20 minutes. she went to the emergency room for medical help. The court noted that on the day of dismissal, neither the plaintiff nor the employer knew about the temporary incapacity for work of the employee, therefore, she did not accept the plaintiff's argument about dismissal during the illness. However, it should be noted that the court does not mention the abuse of the right by the plaintiff (decision of the Zheleznodorozhny District Court of Ulyanovsk dated 03.23.2009).
The employee presents a “sick leave” after the termination of employment, or “makes it public” only in court, while insisting on the illegality of his dismissal during the period of incapacity for work. In the presence of these circumstances, the actions of the employee can be considered an abuse of law.
In such situations (if the employee directly to the employer or in court makes a demand to reinstate him at work, as well as related requirements (for payment of involuntary absenteeism, compensation for non-pecuniary damage, etc.) and there are no violations in the dismissal procedure), the employer with full right can refuse the employee to satisfaction of his requirements.
When considering a case in court, taking into account the prevailing practice today, the truth will be on the side of the employer, who should not suffer because of negative consequences from dishonesty of the employee. However, it should be noted that it is the employer who will have to prove the dishonesty of the employee’s actions and the fact of abuse of his right not to be dismissed during the sick-leave period (Section 23 of the Resolution of the Plenum of the RF Armed Forces No. 2).
Arbitrage practice

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As noted in the ruling of the Saratov Regional Court of September 25, 2008 No. 33-3558, the dismissal of an employee during his period of inability to work is an independent basis for restoring him to work, regardless of the reasons that served as the basis for dismissal at the initiative of the employer. Therefore, you need to be especially careful when proving the fact of abuse of the right by the employee.

Thus, it is necessary to collect and evaluate the evidence base in advance for the above circumstances, which will confirm the dishonesty of the employee. Refusing to satisfy the employee’s requirements to cancel the dismissal order, you must be sure that you will be able to prove the employee’s dishonesty in the event of his going to court and / or labor inspection.

Situation two: "sick leave" received after execution of all documents

Consider a more complex and interesting situation: an employee, having passed the dismissal procedure, having received a work book, leaves the place of work. And either immediately or at the end of the working day, he turns to a medical institution and opens a sick leave on the same day. Accordingly, he subsequently reports on the fact that he has a certificate of incapacity for work for the employer with the requirement to cancel the order of dismissal during the period of incapacity for work. In this situation, it is already more difficult to talk about employee dishonesty. Someone might really need medical attention in connection with the stress associated with the dismissal at the initiative of the employer.

Arbitrage practice

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The ruling of the St. Petersburg City Court of August 11, 2011 No. 33-12339 examined the situation when an employee tried to challenge the dismissal due to the fact that on the evening of the same day she was hospitalized due to poor health. The court refused to satisfy the plaintiff’s claims, referring to the fact that the “sick leave” was opened after the end of the working day, during the dismissal procedure she was able to work, there were no violations in the dismissal procedure itself. The plaintiff’s statement about her dismissal during the period of incapacity for work was regarded by the court as an abuse of the right by the employee.

The Kemerovo Regional Court came to the opposite conclusion.

Arbitrage practice

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In paragraph 3 of the certificate of the Kemerovo Regional Court dated March 15, 2007 No. 01-19 / 150 on the practice of consideration of civil cases by courts of the region in 2006 on the basis of cassation and supervisory data, an analysis is made of the case when the employee was handed the order for dismissal, the working day ended at 17.00, and at 17.55 the employee applied for a sick leave. The district court upheld the plaintiff's claim, citing only that the employee was dismissed during the period of incapacity for work. But the Kemerovo Regional Court overturned the decision of the district court, noting that the court was to investigate the circumstances of the issuance of the certificate of incapacity for work and establish whether the employer was aware of the plaintiff's incapacity for work at the time of dismissal.

What to do if an employee, for example, is fired in the middle of the day and released from the workplace after all formal procedures have been followed? Indeed, this is often what happens in companies. Therefore, the employee manages to receive a sick leave before the official end of the working day. In our opinion, in this situation it is also not necessary to cancel the order and reinstate the employee at work, since the dismissal procedure by the time the sick leave was issued had already been completed.

Also in this situation it is appropriate to say that the moment of termination of the employment relationship in this case is the moment of delivery of the order of dismissal and the work book to the employee, and not the moment of the end of the working day. Since that time, the employer has no obligation to keep a place for the employee during the period of incapacity for work. And the employee, accordingly, does not have a guarantee to preserve the workplace during the period of incapacity for work.

What can the employer do in order to protect himself as much as possible in the event of such “surprises” by the dismissed employee? We offer the following measures:

on the day of termination of the employment contract, the dismissal procedure must be fixed in time. That is, the employee must put down the exact time of acquaintance with the order of dismissal, the time of his receipt on hand, the time of receipt of the work book, calculation (if he is issued at the cash desk). If the employee refuses to sign the documents or does not set the date and time, the fact of delivery of the documents and the time of their delivery should be recorded by a commission act;
the dismissal procedure must be carried out in the presence of witnesses, even if the employee does not refuse to receive documents and put down the time for their receipt. Witnesses will subsequently be able to confirm the time of delivery of the documents of dismissal to the employee, and the fact that during the dismissal procedure he did not show a certificate of incapacity for work, did not report his “sick leave”, did not show critical signs of ill health;
after the employee presents the sick leave, a request must be made to the medical institution that issued it. In the request, you need to request information about the time the employee was admitted to the doctor, the time of issue of the "sick leave". If the matter has reached the court, you can apply for a call as a witness the doctor who opened the certificate of incapacity for work;
labor legislation does not establish the direct obligation of the employee to notify the employer of the opening of the "sick leave". However, from an analysis of the norms of the Labor Code of the Russian Federation it follows that compliance with the employee’s guarantees during the period of temporary disability (payment of sick leave, preservation of the workplace) depends on whether the employer is aware of the “sick leave”. Accordingly, a more “general” preventive measure will be the inclusion in local regulations (for example, in the Internal Labor Regulations), in the job descriptions of employees, the obligation to notify the employer of open sick leave directly on the opening day. This obligation will not contradict the norms of labor legislation, since it is aimed at observing labor discipline, because the employer must, in particular, draw up time sheets and put down the days of the employee’s illness. And for the employee himself, this obligation is useful in that its implementation ensures the timely and full provision of the guarantees provided for by the Labor Code of the Russian Federation.

Footnotes

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There are frequent cases when, for one reason or another, it is necessary to terminate the employment relationship with the worker, and this can also happen while the employee is on sick leave. How, in such a situation, can a worker be dismissed correctly and accrued compensation compensation?

We leave during the sick leave of our own free will

The employee may terminate the employment relationship with the employer on his own initiative, having notified him in writing at least 2 weeks before the day of dismissal. This period starts from the next day after the employer is notified of dismissal (Article 80 of the Labor Code of the Russian Federation). If an employee leaves for sick leave during this two-week period, then his illness does not constitute an obstacle to dismissal. The same applies to termination of employment by agreement of the parties.

Important! During the illness, the employee will be dismissed on the day specified in his application without additional work (letter from Rostrud No. 1551-6 of 09/05/2006) and the employer cannot independently make changes to the date of dismissal. The employee himself has the right to do this - he can cancel the application or write another date while on sick leave.

This procedure is carried out by mail, for example, if an employee, due to illness, cannot come to work. When an employee recovers before the date of dismissal, then it occurs in accordance with the statement.

If the employee is on sick leave on the day of dismissal:
the employer indicates that he cannot bring to the knowledge of the employee the contents of the document and record his signature, as he is on sick leave;
the employer must send the employee a notification about the need to receive money (salary, due compensation, allowances, surcharges), as well as the work book or obtain permission to send it by mail (article 84.1 of the Labor Code of the Russian Federation). Starting from the day of sending such a notice, the employer is not responsible for the late receipt of the work book by the employee.

Important! The work record must be received by the employee on the day of dismissal specified earlier in the application. If he is temporarily incapacitated, then paragraph 2 above applies.

On his own initiative, an employee may quit while on sick leave. He has the right to send the application by post or take it on his own if his health condition allows.

Thus, the 14 days that an employee must work in connection with the dismissal will pass during his sick leave, if the duration of the illness exceeds these two weeks, otherwise the employee will spend the rest of the working time at work. An employee issued a certificate of incapacity for work (sick leave), the employee must immediately and can bring to work already after dismissal in order to receive temporary disability benefits.

Dismissal on sick leave at the initiative of the employer

Following Art. 81 of the Labor Code of the Russian Federation, the employer does not have the right to break off labor relations with an employee on his own initiative when he is on sick leave or on vacation.

This can only be done with the following exceptions:

at;
when closing IP.

When the termination of the employment contract is carried out at the request of the employer and the employee is on sick leave that day, then it will be necessary to wait for him to leave the hospital for registration of dismissal. Dismissal may occur on the first day of release. This also applies to layoffs as a result of staff reductions.

Important! If an employee is on a sick leave for a long period and there is no one to work, then the employer can draw up another person according to (Article 59 of the Labor Code of the Russian Federation), keeping the wording “before the main employee leaves”.

Payments on the sheet of temporary disability (sick leave)

The allowance for hospital workers is accrued both during labor relations and when these relations are terminated (Article 5 of Law No. 255-FZ of December 29, 2006).

1) If the sick leave certificate (disability certificate) was opened after dismissal. It is understood that a person fell ill after dismissal. For example, the dismissal date is April 15, and the certificate of incapacity for work says “I was in the hospital from April 18 to May 3 inclusive,” that is, April 18 is the day the sick leave opens, and May 3 the day it closes:

An employer on such a sick leave is obligated to pay the resigned employee if he fell ill from the day of dismissal within 30 calendar days - in this case he fell ill on the 3rd day after the dismissal, and the duration of the illness and the reason for leaving do not play a role.

Payment is made at the last place of work for the entire period of the illness from the first to the last day (exceptions - part 3 part 4 of article 6 of Law No. 255-FZ) and makes up 60% of average earnings (part 2 of article 5, part 2 of article 7 of law No. 255 -FZ). The initial 3 days are paid by the insurer (i.e. the employer), the rest are paid by the Social Insurance Fund.

The benefit is assigned if the employee applied for it no later than 6 months from the date of the restoration of working capacity (part 1 of article 12 of Law No. 255-FZ). In the case described above, the day of recovery is considered May 4, counted from May 4, 6 months - November 4 - this is the last day when an employee can apply for benefits.

If this period was missed by an employee for good reason, having evidence, then the decision on the calculation of benefits is assigned to the territorial body of the insurer (FSS) - Order No. 74 of January 31, 2007 of the Ministry of Health and Social Development of Russia. The same authority pays allowance in the event of the closure of an enterprise or the absence of money in its current accounts. Working part-time, the employee will receive benefits for each place of work or for the last of them (Article 13 of Law No. 255-FZ).

Important! When will the employee receive benefits? The employee will receive the sick leave allowance calculated by the accounting department on the day the salary is paid - this is either the day of the full calculation of the salary or the day of advance payment in the organization (IP), so the employee will receive the money minus the income tax on the next of these days.

2) The sick leave was opened before the termination of the employment contract:

In this situation, the allowance is calculated and paid from the beginning of the sick leave until the day it is closed inclusively in such volume as if there were no termination of the employment contract, i.e. full. The basis for accrual and payment is a correctly executed sick leave.

Important! Payment on sick leave, opened during the period of the employment contract, on a general basis, is made even when the worker quits by the date of its closure.

When calculating benefits, the employee's length of service is taken into account (Clause 1, Article 7 of Law No. 255-FZ)

The right of the employee to terminate the employment contract with the employer of his own free will is secured by the provisions of Article 80 of the Labor Code.

To take advantage of this right, the employee must warn of his desire to quit the employer in writing no later than two weeks *.

* The running of the specified period begins on the day after the employer receives the employee's application for dismissal.

By agreement between the employee and the employer, the employment contract may be terminated before the expiration of the termination notice.

In cases where the employee’s application for dismissal on his initiative is caused by the impossibility of continuing his work (enrollment in an educational institution, retirement and other cases), as well as in cases of violation by the employer of labor legislation and the terms of the employment contract, the employer must terminate the employment contract on time specified in the statement of the employee.

Moreover, before the expiration of the termination notice, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out if another employee is not invited in his place in writing, who, in accordance with applicable law, cannot be refused the conclusion of an employment contract.

After the termination of the termination notice, the employee has the right to stop work. On the last day of work, the employer is obliged to issue the employee a work book, other documents related to the work, upon the written application of the employee and make a final calculation with him.

If upon expiration of the termination of the notice of dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, the validity of the employment contract continues.

Guarantees for an employee with temporary disability are also established by the provisions of the Labor Code of the Russian Federation. In accordance with the provisions of Article 183 of the Labor Code of the Russian Federation, in case of temporary disability, the employer pays the employee temporary disability benefits in accordance with federal laws.

The size of temporary disability benefits and the conditions for their payment are established by federal laws.

Federal Law of December 29, 2006 No. 255-ФЗ “On compulsory social insurance in case of temporary disability and in connection with motherhood” *:

regulates legal relations in the system of compulsory social insurance in case of temporary disability and in connection with motherhood,
determines the circle of persons subject to such compulsory social insurance,
types of compulsory insurance provided by him,
establishes the rights and obligations of subjects of compulsory social insurance,

and also determines the conditions, sizes and procedure for providing temporary disability benefits, maternity benefits, monthly childcare benefits for citizens subject to compulsory social insurance.

* Law No. 255-FZ does not apply to relations associated with providing citizens with temporary disability benefits in connection with an industrial accident or occupational disease.

In the article we will consider the features of calculating benefits for the dismissal of an employee during the sick leave, as well as cases when the employee brings the sick leave open after the dismissal.

The sick leave is open until termination of employment

An employee who leaves voluntarily shall notify the employer 2 weeks before the date of the proposed dismissal. At this time, he can work, be on vacation, or on sick leave - the absence of a worker at any time does not affect the employee’s right to dismiss.

Moreover, even if the employee is at the workplace, it is quite possible that in two weeks of “working off” he may become ill and not recover by his last working day.

If at the same time such an employee did not withdraw his application for dismissal, despite the fact that on the last day of work the employee is absent and is on sick leave, the employer has no reason to change the date of dismissal and he must dismiss him on the day specified in the application about dismissal.

On the basis of the provisions of Article 81 of the Labor Code of the Russian Federation, the dismissal of an employee during his temporary disability on the initiative of the employer is not allowed. However, if an employee resigns of his own free will, this provision of the Labor Code of the Russian Federation does not apply, as the employer has a letter of resignation from the employee.

Explanations on this issue were given by Rostrud in a Letter dated 09/05/2006. No. 1551-6:

“An employee has the right to terminate an employment contract by notifying the employer in writing in two weeks.

The employee can notify the employer of dismissal not only during the period of work, but also during the period of vacation and during the period of temporary incapacity for work. In this case, the date of the alleged dismissal may also fall on the indicated periods.

The Labor Code does not contain any obstacles to submitting an application for termination of his own free will in any form, including by sending it by mail. Thus, the employee can send the employer a corresponding application, for example, by registered mail.

The rule set forth in Art. 81 of the Code, according to which the dismissal of an employee during his temporary incapacity for work and during his vacation is not allowed, applies only to cases of dismissal on the initiative of the employer. ”

Accordingly, the accountant often raises the question of how to calculate the sick leave, starting during the period of the employee’s work in the organization, and ending after his dismissal.

According to Part 1 of Art. 13 of Law No. 255-FZ, the assignment and payment of temporary disability benefits are carried out by the insured at the place of work (service, other activity) of the insured person.

If the insured event occurs during the validity of the employment contract, the benefit must be calculated and paid for the period from the beginning of the sick leave to the day the sick leave was closed in the same amount as if the employee continued to work.

Accordingly, the allowance is paid for the period from the beginning of the sick leave until the day it is closed inclusively.

The basis for the appointment and payment of such benefits is a properly executed certificate of incapacity for work (part 5 of article 13 of Law No. 255-FZ).

In full, temporary disability is paid not only for the employee himself, but also for sick child care.

According to paragraph 40 of the Order of the Ministry of Health and Social Development of Russia dated 06/29/2011. No. 624n “On approval of the Procedure for issuing disability certificates”. Disability certificate is not issued for care:

for a sick family member older than 15 years with inpatient treatment;
for chronic patients during remission;
during the period of annual paid leave and leave without pay;
during maternity leave;
during the period of parental leave until the child reaches the age of 3 years, with the exception of cases of completing work during the specified period on a part-time basis or at home.

On the basis of paragraph 41 of the Procedure, in case of illness of the child during the period when the mother (another family member who actually cares for the child) does not need to be released from work (annual paid leave, maternity leave, parental leave until reaching they are 3 years old, leave without pay), a disability certificate for caring for a child (in the case when he continues to need care) is issued from the day when the mother (another family member actually caring for the child) must begin to slave ote.

Recall that according to paragraph 1 of article 7 of Law No. 255-FZ, temporary disability benefits, with the exception of the cases specified in part 2 of this article, under quarantine, prosthetics for medical reasons and aftercare in sanatorium organizations immediately after medical treatment Inpatient care is paid in the following amount:

an insured person with an insurance experience of 8 years or more - 100 percent of average earnings;
the insured person having an insurance experience of 5 to 8 years - 80 percent of the average earnings;
an insured person with an insurance experience of up to 5 years - 60 percent of average earnings.

The sick leave is open after the date of dismissal of the employee

In accordance with the provisions of Clause 1, Article 5 of Law No. 255-ФЗ, the provision of temporary disability benefits to insured persons is carried out in the following cases:

disability due to illness or injury, including in connection with an operation to terminate a pregnancy or in vitro fertilization (hereinafter referred to as a disease or injury);
the need to care for a sick family member;
quarantine of the insured person, as well as quarantine of a child under the age of 7 years, attending a preschool educational organization, or another family member recognized as legally incompetent;
performing prosthetics for medical reasons in a stationary specialized institution;
aftercare in the prescribed manner in sanatorium organizations located on the territory of the Russian Federation, immediately after providing medical care in stationary conditions.

According to paragraph 2 of article 5 of Law No. 255-FZ, temporary disability benefits are paid upon occurrence of the above cases:

during work under an employment contract,
performance of official or other activities,

during which they are subject to compulsory social insurance in case of temporary disability and in connection with motherhood, as well as in cases when the disease or injury occurred within 30 calendar days from the date of termination of the specified work or activity or from the date of conclusion of the employment contract to the day of its cancellation.

Accordingly, an employee who is no longer working in the organization and has been ill within 30 calendar days from the date of termination of the employment contract has the full right to present a sick leave certificate to the former employer, and the employer must pay this sick leave.

The reasons for dismissal and the duration of temporary incapacity for work can be any, this does not matter in the case under consideration.

But the reason for temporary disability is important - the considered norm of Clause 2, Article 5 of Law No. 255-ФЗ applies only to cases related to a disease or injury of the insured person. Accordingly, if within 30 days after the dismissal, the employee brings, for example, a sick leave to care for a child, temporary disability benefits on this basis are not assigned to him and are not paid.

According to Clause 1, Article 6 of Law No. 255-FZ, temporary disability benefits for loss of working ability due to illness or injury are paid to the insured person for the entire period of temporary disability until the day of disability recovery (determination of disability) *.

* Except as specified in paragraphs 3 and 4 of Article 6 of Law No. 255-FZ.

According to subparagraph 1 point 2 of article 3 of Law No. 255-FZ, temporary disability benefits are paid to insured persons (with the exception of insured persons who voluntarily entered into legal relations for compulsory social insurance in case of temporary disability and in connection with motherhood, in accordance with Article 4.5 No. 255-FZ):

for the first three days of temporary disability - at the expense of the insured,
and for the rest of the period (starting from the 4th day of temporary disability) - at the expense of the FSS budget.

In accordance with Clause 1, Article 12 of Law No. 255-FZ, temporary disability benefit is granted if an appeal has followed him no later than six months from the day of restoration of disability (determination of disability), as well as the end of the period of dismissal from work in cases of caring for a sick family member, quarantine, prosthetics and aftercare.

If the application for benefits occurred after the specified period, the decision on the appointment of benefits is made by the territorial body of the insurer if there are good reasons for missing the deadline for applying for benefits. To such reasons, according to the Order of the Ministry of Health and Social Development of Russia dated January 31, 2007 No. 74 include:

force majeure, that is, extraordinary, unavoidable circumstances (earthquake, hurricane, flood, fire, etc.);
prolonged temporary disability of the insured person due to illness or injury lasting more than six months;
moving to a place of residence in another locality, change of place of stay;
forced absenteeism upon unlawful dismissal or suspension from work;
damage to health or death of a close relative;
other reasons recognized as valid in a judicial proceeding (when insured persons apply to the court).

According to Clause 3, Article 13 of Law No. 255-FZ, the insured person who has lost working capacity due to illness or injury within 30 calendar days from the date of termination of work under an employment contract, official or other activity during which it was subject to compulsory social insurance, allowance for temporary incapacity for work is appointed and paid by the insured at his last place of work (service, other activity).

In the event of termination of the activity by the insured on the day the insured person applies for benefits, or if it is impossible to pay the insured due to insufficient funds in his current account, the insured person applies for the payment of benefits territorial body of the insurer.

Recall that for insured persons working for several employers, temporary disability benefits are assigned on the basis of the sick leave for each place of work or one of the last places of work (services, other activities) at the choice of the insured person (Article 13 of the Law No. 255-FZ).

In case of illness, such an employee is issued an appropriate number of disability certificates for presentation at each place of work.

Clause 2 of Article 5 of Law No. 255-FZ does not provide for any restrictions regarding the assignment of temporary disability benefits for part-time workers.

Thus, if an external part-time worker brings a certificate of incapacity for work before the expiration of 30 days after the dismissal, the former employer must accept it, determine the amount of the allowance and pay the appropriate amount.

Based on Clause 2, Article 7 of Law No. 255-FZ, temporary disability benefits for loss of working capacity due to illness or injury are paid to insured persons:

in the amount of 60% of average earnings in case of illness or injury that occurred within 30 calendar days after termination of work under an employment contract, service or other activity during which they are subject to compulsory social insurance in case of temporary incapacity for work and in connection with motherhood.

In accordance with Clause 1, Article 15 of Law No. 255-ФЗ, the policyholder assigns temporary disability benefits within 10 calendar days from the day the insured person applies for it with the necessary documents.

The payment of benefits is carried out by the insured on the next day after the appointment of benefits established for the payment of wages.

This means that the dismissed employee will also have to pay benefits in the above terms.

The legal literacy of fellow citizens is growing steadily, which cannot but please the author as a citizen. As a lawyer who has to protect the rights of employers, this fact is a little less pleasing: more and more often you are faced with the fact that workers use our liberal labor legislation for other purposes, but in order to “cut down more” from the company in the absence of its fault.

Here is another diagram from my “collection”: on the day of dismissal, on the initiative of the employer, the employee opens a sick leave without informing about it. Further, after some time, the employee appeals to the court with a demand not only for reinstatement, but also for the payment of average earnings for “forced absenteeism”, and for compensation for non-pecuniary damage, as the dismissal took place during a period of temporary incapacity for work.

This is expressly prohibited by the Labor Code of the Russian Federation: “Dismissal of an employee on the initiative of the employer (except for the case of liquidation of the organization or termination of activity by an individual entrepreneur) during his temporary disability and during his vacation” (part 6 of article 81 of the Labor Code of the Russian Federation) is not allowed.

But the employee does not seem to be obliged to notify of his disability, since the Labor Code of the Russian Federation does not contain such a requirement.

As a result, we have a sad picture: when dismissing on the initiative of the employer, it is extremely important not only to have strong evidence of the validity of the dismissal, but also to strictly observe the established procedure for it. And a competent worker, playing “ahead of the curve”, has much more opportunities to form the evidence base for the future trial in advance.

In particular, it is enough for him simply not to inform about the opening of the sick leave, while the employer is obliged to inform in advance about the upcoming dismissal, to familiarize himself with the dismissal order, to issue a work book, etc.

And that the dismissal was made during a period of temporary incapacity for work, the employer finds out after some time and, as a rule, is already in court.

What to do? Satisfy the requirement voluntarily, because formally a violation takes place? Or try to defend your point of view on the grounds that the employee abused his right?

Courts, as a rule, recognize the employee’s actions as abusive if on the day of dismissal he did not present a sick leave (copy) or did not verbally report the fact of temporary disability, but submitted it after the final completion of the dismissal or already in court.

Of course, if the date of dismissal coincides on the initiative of the employer and the opening date of the sick-list, there is a very high probability that the court will side with the employee (part 6 of article 81 of the Labor Code of the Russian Federation), and then you will have to be prepared for adverse consequences. At a minimum, this is a change in the date of dismissal to the one that occurs after the close of the sick leave, and the payment of temporary disability benefits. As a maximum, employee recovery and compensation.

In my opinion, the decision should be made depending on the specific situation.

If sick leave is open prior to dismissal
If the employee opened the sick leave before dismissal, then most likely this will be done:
after notification of the impending dismissal, some time before the day of dismissal, or
on the day of dismissal (for example, before work).

That is, an employee already aware of the impending dismissal already has a valid certificate of incapacity for work, but the employer is not informed about this.

Thus, the court must prove the fact that the employee hid his disability. Please note: it is necessary to prove the intentional concealment by the employee of his disability, and not that the employer did not know about it.

Unfortunately, the Labor Code of the Russian Federation does not contain the concept of “abuse of law”. According to the Civil Code of the Russian Federation, abuse of the right is prohibited (Clause 1, Article 10 of the Civil Code of the Russian Federation), but the rules of civil law are not applicable to labor relations.

At the same time, the principle of the inadmissibility of abuse of law is universal in nature, that is, it must be applied in all branches of law. The Supreme Court of the Russian Federation also pointed to this.

When considering cases of reinstatement of the work of the Armed Forces of the Russian Federation, it recommended that the courts proceed from the fact that when implementing the guarantees provided by the Labor Code of the Russian Federation to employees in the event of termination of their employment contract, the general legal principle of the inadmissibility of abuse of the right, including on the part of workers, must be observed.

In particular, it is unacceptable for an employee to conceal temporary incapacity for work during his dismissal from work (Section 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 04 No. 2 “On the Application by the Courts of the Russian Federation of the Labor Code of the Russian Federation”).

By the way, the abuse of the right is also the concealment of the fact that the employee is a member of the trade union or the head (his deputy) of the elected collegial body of the primary trade union organization, the elected collegial body of the trade union organization of the organization’s structural unit (not lower than the shop floor and equivalent to it), not released from the main job, when the decision on the dismissal should be made in compliance with the procedure for taking into account the motivated opinion of the elected body rvichnoy trade union or, respectively, with the prior consent of the superior elected trade union body.

In any case, when the court establishes a fact of abuse of the right by the employee, the court may refuse to satisfy his claim for reinstatement, since in this case the employer should not be liable for adverse consequences resulting from dishonest actions on the part of the employee.

At the same time, the court may indicate to the employer the need to change the date of dismissal by the next date after closing the sick leave and pay the temporary disability benefit.

The sick leave is open AFTER dismissal and outside working hours
Another option is also possible: the employee opens the sick-list after the dismissal, that is, after he is acquainted with the order of dismissal and signs this, he will receive a work book, a calculation and will leave his job.

If the sick-list was opened at the end of the working day, then the dismissal is likely to be recognized as legal. So, the court refused to satisfy the requirement to reinstate the employee who was hospitalized on the evening of the day of dismissal.

The plaintiff, justifying the illegality of the dismissal, referred to the fact that the dismissal took place during her temporary incapacity for work, in support of which she submitted a certificate of incapacity for work.

The court found that on the day of dismissal, the plaintiff was at work, about 16-17 hours, representatives of the employer she was given the order for dismissal, which was put on her desk. An act was drawn up that the dismissed categorically refused to familiarize herself with the order to dismiss her.

On the same day, at 19:31, the plaintiff was taken to the hospital’s emergency room, at 20:49 - transferred from the emergency room to the department, then was in the hospital for some time, which confirmed the sheet of temporary disability.

The St. Petersburg City Court issued a cassation ruling on this issue (08.08.11 No. 33-12339), in which it indicated that the dismissal was lawful. The sick leave was opened after the end of the working day, and during the dismissal, the employee was able to work.

Thus, on the part of the employer, there were no violations in the dismissal procedure. The employee regarded the employee’s application for dismissal during the period of incapacity for work as an abuse of the right.

The sick leave is open AFTER dismissal, but within a working day
It is another matter if an employee opens a sick leave within a working day and informs the employer about it, but the employer did not react in any way.

Here the probability is high that the court will side with the employee, since there can be no talk of abuse of right in this case.

So, the employee was dismissed for staff reductions (Clause 2, Part 1, Article 81 of the Labor Code of the Russian Federation). The dismissal was finalized at 9 o’clock, after which the employee turned to the clinic and the sick leave was opened to him. Closing a sheet of temporary disability, the employee filed a lawsuit for reinstatement.

There is one caveat: there was also a violation of the dismissal procedure in connection with the reduction of staff, because the employer did not offer the employee to be reduced all his vacancies. It was announced not only about the illegal dismissal during the period of temporary disability, but also about the violation of the reduction procedure.

The court granted the claim, indicating that the employee must fully work out his last working day, since the day of termination of the employment contract in all cases is the last day the employee worked (part 3 of article 84.1 of the Labor Code of the Russian Federation).

The court also pointed out three very important points:
dismissal is illegal because the dates of dismissal and the date of commencement of temporary disability coincide;
receipt of a disability certificate took place BEFORE the end of the working day;
the employee promptly, that is, on the same day, informed the employer of the onset of temporary disability, that is, gave the employer the opportunity to take steps to cancel the illegal order of dismissal.

These grounds became the reason that the employee did not abuse his right, did not hide temporary disability, and therefore the dismissal is illegal (decision of the Achinsk City Court of Krasnoyarsk Territory dated 24.01.12 No. 2-2712 / 2012).

Another point: the employee should have a real opportunity to notify the employer about the occurrence of temporary disability. That is, if, for example, after the final registration of the dismissal, a person ends up in intensive care, it is obvious that he does not have the opportunity to inform the employer about this. In this case, there is no talk of abuse of law, and the courts recognize the dismissal as unlawful.

How to find out the opening time of the sick leave

Since patients are not always recorded by appointment, there may simply not be the right information.

You can try to send a request to the medical institution that issued the sick-list, but most likely this will not help, because information about the fact of a citizen applying for medical care, his state of health and diagnosis, other information obtained during his medical examination and treatment, constitute a medical secret and cannot be disclosed without the written consent of the patient (parts 1–3 of article 13 of the Federal Law of 21.11.11 No. 323-FZ “On the Basics of Public Health Protection in the Russian Federation”).

Therefore, it seems more justified to petition the court to recover this information (part 2 of article 57 of the Code of Civil Procedure of the Russian Federation).

In addition, the fact that not many people are able to calmly tell a lie, as well as the fact that employees are absolutely sure that dismissal during an illness is in any case illegal, can play in favor of the employer.

Therefore, sometimes it’s enough in court to directly ask about exactly when the employee went to the doctor for a sick leave - before or after familiarizing himself with the order to dismiss and receive a work book. In most cases, the employee responds honestly and calls the time - usually until the end of the dismissal procedure, because either he does not attach any importance to this, or believes that this will not play against him in any way.

After that, it is enough to ask why he did not notify the employer about the opening of the sick-list, and also provide evidence that the employee really did not.

Take preventive measures
In order to minimize the risk of the above situations, the following preventive measures can be taken.

Firstly, to issue a dismissal in the presence of at least two witnesses - even if the employee behaves appropriately, does not refuse to receive documents, sign their receipt, etc. Witnesses can always confirm not only the fact and time of delivery of the documents of dismissal to the employee, but and the fact that during the final execution of the dismissal the employee did not declare his poor health, the onset of temporary disability, did not show a sick leave and did not report its presence.

Secondly, always indicate the time of dismissal. Ideally, an entire day of dismissal should be documented in minutes. Or at least you should ask the employee to put down not only the date, but also the actual time of acquaintance with the dismissal order, receipt of the order and work book.

Of course, the employee may refuse, because he is not obliged to do so. In this case, the fact of delivery of documents and the time of their delivery is recorded using an act drawn up by a commission.

Thirdly, include the phrase: “I hereby confirm that I have no obstacles to the termination of employment, including an open sheet of temporary disability,” in the standard order of dismissal. This will be enough to confirm that the employer has taken all possible measures to terminate the employment relationship without violation, and the employee either did not have an open sick leave or deliberately hid his presence.

Fourth, to fix the obligation of the employee to notify the employer about the onset of temporary disability in labor contracts, job descriptions, and internal labor regulations. Despite the fact that the Labor Code of the Russian Federation does not oblige the employee to do this, there is no violation of rights here: the employer must know about the illness of the employee because he is obliged to provide him with all the guarantees provided by law, including paying for the sick leave and keeping him a job.

It will not be a violation to include, for example, the phrase: “In the event of temporary disability, the employee is obliged to report this fact to the personnel department by phone directly on the day the temporary disability certificate is opened. After the restoration of disability, employees are required to submit the original sheet of temporary disability for the period starting from the first day of absence from the workplace and by the end date of the period of disability. "

Most likely, not one examiner will find fault with this wording. However, if claims still arise, it should be indicated that the establishment of the obligation in question is aimed at:
ensuring the rights of the employee (to pay for days of temporary disability, to preserve him a job for the period of illness);
observance of labor discipline (the employer is obliged to keep records of working hours, noting the days of illness of the employee in the time sheet).

Last Thoughts
Of course, there are different situations in life, and it is possible that the employee may actually become ill during the last working day, and the employer is aware of this (for example, an ambulance was called directly to the workplace or the employee complained of poor health and asked the management to let him go before the end of the working day). In this case, there is no reason to refuse the employee’s request to change the date of dismissal, to pay for the period of temporary disability. Strictly speaking, it’s cheaper than bringing the case to court.

The only question is to exclude unfair employee behavior.

The study of announcements on lampposts clearly indicates that issuing a sick leave without unnecessary questions and formalities is not a problem.

In order to minimize the risk of such a situation, it is possible to establish the need for the last day to be completely worked out by the resigning employee and to execute the dismissal at the end of the working day (it is obvious that in this case the employee will simply not be able to go to the clinic on the day of dismissal).

If the sick leave is already presented, then it will not be superfluous to first check whether this sheet is genuine. To do this, you can contact the territorial branch of the FSS of Russia with a request to conduct an audit in accordance with the Procedure for the Social Insurance Fund of the Russian Federation to verify compliance with the procedure for issuing, renewing and issuing disability certificates (approved by order of the Ministry of Health of Russia dated 12.21.12 No. 1345n).

IMPORTANT:

“It is not allowed to dismiss an employee on the initiative of the employer (except for the case of liquidation of the organization or termination of activity by an individual entrepreneur) during his temporary incapacity for work and during his vacation” (part 6 of article 81 of the Labor Code of the Russian Federation).

In court, it is necessary to prove the fact that the employee hid his disability. Please note: it is necessary to prove the intentional concealment by the employee of his disability, and not that the employer did not know about it.
If we succeed in proving this, we can almost confidently assert that the court will side with the employer, since the employee abused his right.

The employee must fully work out his last working day, since the day of termination of the labor contract in all cases is the last day of the employee's work (part 3 of article 84.1 of the Labor Code of the Russian Federation).

The employee should have a real opportunity to notify the employer of the occurrence of temporary disability. That is, if, for example, after the final registration of the dismissal, a person ends up in intensive care, it is obvious that he does not have the opportunity to inform the employer about this.

If the sick leave has already been presented, then it will not be superfluous to first check whether this sheet is genuine. To do this, you can contact the territorial branch of the FSS of Russia with a request to conduct an audit in accordance with the Procedure for the Social Insurance Fund of the Russian Federation to verify compliance with the procedure for issuing, renewing and issuing disability certificates (approved by order of the Ministry of Health of Russia dated 12.21.12 No. 1345n).

Marina DASHEVSKAYA, lawyer

Question. It is not uncommon for a laid-off worker, after some time, for example, one month after dismissal, or six months later, to present to the former employer a certificate of incapacity for work, opened either during his work or within a month after dismissal and requires payment. How to act in this situation to the employer? Does the employee have the right to pay sick leave in this case?

According to Part 6 of Art. 81 of the Labor Code of the Russian Federation, the dismissal of an employee on the initiative of the employer during his temporary disability is not allowed, except in cases of liquidation of the organization or termination of activity by an individual entrepreneur.

According to Part 2 of Art. 5 of the Federal Law of 29.12.2006 N 255-ФЗ “On compulsory social insurance for temporary incapacity for work and in connection with motherhood" temporary disability allowance is paid to insured persons during work under an employment contract, performing official or other activities, as well as in cases when the disease or injury occurred within 30 calendar days from the date of termination of the specified work or activity or from the date of conclusion of the employment contract until the day of its cancellation.

In other words, the employer has an obligation to pay the employee a sick leave if the temporary disability of the employee as a result of illness or injury occurs both during the period of work under the employment contract and within 30 days from the termination of the employment contract (i.e. the dismissal of the employee )

In accordance with Part 2 of Article 7 of the Federal Law of December 29, 2006 N 255-ФЗ “On Compulsory Social Insurance for Temporary Disability and in Connection with Maternity”, if the certificate of incapacity for work is issued during the period of work, it is paid according to the general rules, and if within 30 calendar days from the day of dismissal, then in the amount of 60% of the average earnings, and if on the last day of work, i.e. on the day of dismissal, then in general order.

Thus, the question “should they pay sick leave after dismissal?” Should answer:

yes, the employer is obliged to pay sick leave even to the employee after his dismissal, in the event of the employee becoming incapacitated both during the period of work under the employment contract and, for example, on the last day of work, i.e. on the day of dismissal (regardless of whether or not the employer knew at the time of dismissal that the employee was incapable of work), and also within 30 days from the date of dismissal of the employee.

Dismissal Hospital

The situation when an employee provides sick leave on the day of dismissal often happens. In this situation, it is necessary to carefully understand, as it happens that an employee intentionally received a sick leave on the day of dismissal. This happens in cases where an employee is dismissed under any article or for non-compliance. In this case, the employer has the right to question the sick leave and demand to understand this situation.

Sick leave

During the illness, employers pay temporary disability benefits to employees. As practice shows, conflicts often arise about this. We hope this article helps you avoid these errors.

- the employee was aftercare in a sanatorium-resort institution immediately after inpatient treatment in the direction of a medical institution;

The first two days of the sick leave are paid by the employer.

I’ll write my question more precisely in relation to the question posed on June 16, 2014, namely: The employee wrote a statement “Please give me another vacation from May 12 to June 08, 2014 for 28 calendar days. From June 09, 2014, I ask you to fire me of my own free will. ”The employee provided sick leave from May 12 to May 23, 2014 for 12 days. The question is, what date is the dismissal of the employee: 06/09/2014.

Hospital against dismissal

Everyone knows that you cannot fire an employee during vacation and illness. However, in practice, various nuances are possible. It all depends on what date the specialist ends with the company.

The most common option - the employee wrote a letter of resignation of his own free will in accordance with Part 1 of Article 80 of the Labor Code of the Russian Federation. If a part of his annual paid vacation falls within two weeks of “working off” and falls ill during the same period, the employer can extend the rest time, but only until the day indicated in the resignation letter, since the boss does not have the right to change the date of dismissal.

Hospital "on the day of dismissal: the actions of the employer

What to do if the date of dismissal at the initiative of the employer and the date of opening of the certificate of incapacity for work coincide? On the one hand, there is reason to apply Part 6 of Art. 81 of the Labor Code of the Russian Federation, containing a ban on the dismissal of an employee during his temporary disability, and cancel the disputed order. On the other hand, at the time of dismissal, the employee did not say a word about the disease. Is it possible to not satisfy the employee’s demand and leave everything as is or is it better to cancel the dismissal order by continuing the employment relationship with him? The author considers two situations: when the employee “fell ill” intentionally and when he received the “sick leave” after completing all the documents.

Conflicts with employees must be not only resolved, but also prevented.

Is it possible to fire an employee during an illness?

Dismissal of an employee on the initiative of the employer during his stay on sick leave is not allowed. Another thing is if a person quits of his own free will.

The company cannot dismiss an employee who is on sick leave on his own initiative. This is clearly stated in the last paragraph of Article 81 of the Labor Code: “the dismissal of the employee on the initiative of the employer is not allowed

Payment of sick leave to a laid-off worker

Federal Law No. 255-FZ establishes cases when an employer must pay a sick leave upon dismissal of an employee. So, according to Part 2 of Article 5 of Federal Law No. 255-FZ, the employer must pay sick leave if the disease or injury occurs within 30 calendar days from the date of completion of work.

Thus, if the former employee provides the sick leave specifically for child care, then there are no grounds for accruing benefits to the organization in accordance with Article 13 of Federal Law No. 255-FZ.

Workers who left the organization and did not get a new job, in case of illness or injury, can provide sick leave for payment at their last place of work, in accordance with Part 2 of Article 5 of Federal Law No. 255-FZ.

10 days have passed since the dismissal, I am on sick leave

The sick leave does not interrupt the employer warning period. You should have been fired on 11/12/13 in accordance with your application. During the sick leave, you cannot dismiss only on the initiative of the employer, but if you terminate the contract of your own free will.

If salary payment is made to a bank card on the day the salary is paid according to the employment contract or the Regulation on the salary payment (another local act of the organization, which indicates the date of the salary issue and which is referenced in the employment contract).

If the RFP is issued in cash, then you need to write an application for the payment of the RFP after.

The employee fell ill on the day of dismissal

Our company has a difficult situation. An employee quits. The order was signed on the eve of the last day of his work. And on the day of dismissal, the employee brought a sick leave. The question was, can I fire him? And if possible, then what about paying sick leave? How many days should we pay: one - the day of dismissal, or three days - in accordance with the latest amendments to the Law on Benefits?

It is not surprising that you have doubts about the right to dismiss an employee during his temporary incapacity for work, because the Labor Code of the Russian Federation (hereinafter - the Labor Code of the Russian Federation) does not provide a unique solution to this situation.

Dismissal on sick leave

If an employee is on temporary leave due to incapacity for work, the employer is not entitled to start the dismissal process on the day of sick leave (Labor Code of the Russian Federation 81 article 6 part). As for the employee who arrives on sick leave, he may well terminate the employment relationship. Periodically, employees abuse this situation.

Sometimes dismissing an employee on their own initiative is a great way to avoid conflict when terminating an employment contract.

An employee takes sick leave on the day of dismissal

If the employee fell ill on the day of dismissal, then the allowance is paid to him in the general manner. It is impossible to dismiss an employee during a period of illness (Article 81 of the Labor Code). But there are situations when an employee for a long time did not appear at work and did not make himself felt. He is fired for absenteeism, and he returns and presents a sick leave, confirming all the time of absence. When an employee appeals to the court with a complaint about illegal dismissal, he will be reinstated at work.

On August 12, 2010, I went on sick leave with a diagnosis of osteochondrosis of the cervical spine; on August 16, I quit.

The hospital fell on the date of dismissal

How to pay sick leave if it is open before the day of dismissal? Does the dismissal date shift in such a situation? The answers to these questions are in the article.
To answer these questions, we turn to the norms of the law.

What is the date to dismiss a sick employee

As a general rule, an employee has the right to terminate an employment contract by notifying the employer in writing not later than two weeks prior to dismissal. The termination of the termination notice begins the day after the employer receives the employee's application for termination (part 1 of article 80 of the Labor Code of the Russian Federation).

Note. With the consent of both parties, it is possible to terminate the employment contract before the expiration of the warning period (part 2 of article 80 of the Labor Code of the Russian Federation).

The Labor Code does not contain a requirement for a mandatory two-week working out. Therefore, in the period after submitting an application, an employee can work, get sick, be on vacation, on a business trip.
The presence of an employee on sick leave in this case to terminate the employment contract is not an obstacle. Let’s explain why.
The ban on the dismissal of an employee during his temporary incapacity for work is established by paragraph 6 of Article 81 of the Labor Code of the Russian Federation only for cases of dismissal of an employee on the initiative of the employer, that is, on the grounds specified in paragraph 1 of Article 81 of the Labor Code of the Russian Federation.

Note. The list of grounds on which the employment contract may be terminated at the initiative of the employer
The list of reasons for the dismissal of employees on the initiative of the employer is given in part 1 of article 81 of the Labor Code of the Russian Federation. These include, but are not limited to:
- liquidation of the organization;
- reduction in the number or staff of employees;
- inconsistency of the employee of the position or work performed;
- change of ownership of the property of the organization;
- a single gross violation by an employee of work duties.

Note. The employee has the right to stop work after the termination of the termination notice (part 5 of article 80 of the Labor Code of the Russian Federation).

Dismissal of an employee of his own free will does not apply to such grounds. Therefore, the employer, despite the employee's incapacity for work, is obliged to dismiss him after a two-week warning period.
The suspension of the course of the two-week warning period for the period of illness is not provided for by applicable law.

Note. Explanation of Rostrud specialists
If the employee was incapable of work during the two-week warning of dismissal, the term of the warning of dismissal is not extended by the number of days of illness (letter of Rostrud dated 05.09.2006 No. 1551-6).

In this situation, the day of dismissal falls on April 15th. It is on this date that the employer’s order to terminate the employment contract with the employee must be drawn up, a work book must be issued and all payments due to the dismissed person made, including compensation for unused vacation (part 4 of article 84.1, article 140 and part 1 of article 127 of the Labor Code of the Russian Federation).
If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits the calculation requirement (part 1 of article 140 of the Labor Code of the Russian Federation).

Note. The application for dismissal can be withdrawn
Prior to the expiration of the termination notice, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out if another employee is not invited in his place in writing, who, in accordance with the Labor Code of the Russian Federation and other federal laws, cannot be refused the conclusion of an employment contract (part 4 of article 80 of the Labor Code of the Russian Federation, subsection. " c ”p. 22 of the resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

If the day of dismissal falls on a day off

As a general rule, regardless of the reason for dismissal, the day of termination of an employment contract is the last day of the employee’s work, and not a day off (Article 84.1 of the Labor Code of the Russian Federation).
About what day of work is considered the day of dismissal, specified in part 4 of article 14 of the Labor Code of the Russian Federation.
So, if the last day of the termination term falls on a day off, the end day of this term will be the next business day following the day off.
For example, the 14th day of the dismissal warning (with the standard five-day day) fell on Saturday, therefore, the day of dismissal will be Monday.

Read also: Mailing application form - sample

If the employee is on sick leave on the day of dismissal

Since the employee is on sick leave on the day of dismissal, the employer does not have the opportunity to familiarize him with the order for signature and give him a work book.
In this situation, the employer must:
- on the order (order) on the termination of the employment contract to make a record of the impossibility of bringing it to the attention of the employee in connection with the absence of the latter;
- send the employee a notification about the need to appear for the work book or give consent to send it by mail. From the day the notice is sent, the employer is relieved of responsibility for the delay in issuing the work book.

How to pay sick leave for an employee

Now let's talk about how to pay a sick leave employee.
In the situation under consideration, disability occurred during the term of the employment contract, which means that the allowance must be paid for the entire period of the illness before the day of the restoration of working capacity, including the days after the date of dismissal (Part 1 of Article 6 of the Federal Law of December 29, 2006 No. 255- Federal Law “On Compulsory Social Insurance for Temporary Disability and in Connection with Maternity”, hereinafter referred to as Law No. 255-FZ).
Payment of temporary disability benefits must be made taking into account the employee's length of service available on the date of the insured event, that is, in the amount of (part 1 of article 7 of Law No. 255-FZ):
- 100% of average earnings - if the insurance experience is 8 years or more;
- 80% of average earnings - from 5 to 8 years;
- 60% of average earnings - less than 5 years.
Term of appointment and payment of benefits. The employer must (part 1 of article 15 of the Law N 255-FZ):
- Assign temporary disability benefits within 10 calendar days from the date the employee applied for his receipt with the necessary documents;
- pay the benefit on the next day after its appointment, the day set for the payment of wages.
If, at the time of dismissal, the employee does not submit a certificate of incapacity for work, the employer will make a calculation upon dismissal from this employee, without taking into account the amount of the benefit.
As soon as the sick leave is received by the organization, the allowance will be paid on the day after the appointment of the allowance that is set by the employer to pay wages.

fell ill on the day of dismissal

Hospital after dismissal

Visitors to the legal consultation asked 52 questions on the topic “Sick leave after dismissal”. On average, the answer to the question appears after 15 minutes, and to the question we give a guarantee of at least two answers that will begin to arrive within 5 minutes!

A lot of information on the payment of patients during service, before dismissal. And what about the payment of sick leave within a month from the day of dismissal? After leaving the police department from November 30, 2010, I am from 2 to 21.

If an employee falls ill after being fired, the employer must pay sick leave.

A former registered mail employee sent a sick leave certificate to the former management, open the day after dismissal, demanding payment. At the same time, five months have passed from the day of dismissal.

Yes, in this case, you must pay the sick leave if the former employee was no longer employed and this can be confirmed by presenting a work book on his part.

If I quit my job and got sick the next day, who will pay for the sick leave?

Citizens who have become ill or injured within 30 calendar days after may apply for an allowance to their employer at their last place of work or directly to the territorial department of the Social Insurance Fund. The reason is paragraph 2 of Article 13 of the Federal Law of 29. 12. 2006 255-ФЗ (further - Law 255-ФЗ).

disability certificate. The sick leave payment will be made if the disease or injury occurred within 30 calendar days after dismissal;

Sick on the day of dismissal

“Question: An employee wrote a letter of resignation of his own free will on April 20, 2007 (that is, on the last working day), and on April 16 he fell ill (was ill for two months). When should he be fired: 04/20/07 or on the last day of sick leave? The day of termination of the employment contract is the last day of the employee’s work, except when the employee did not actually work, but he retained his place of work.

Protecting Your Right is Our Work! Legal consultation.

It happens that due to family circumstances I am late for work. Each time I write to the boss an explanatory note and hope for his understanding. And recently, I was late and I was fired. I have a sick leave for this day. What number should be in the work book as the day of dismissal? Will they pay sick leave?

■ Yes, you must pay sick leave. The bulletin is paid even in cases when an illness or injury occurred within 30 calendar days from the date of dismissal.

How many employees should be dismissed if he was on sick leave

Dismissal of an employee should always be in accordance with the law, regardless of the reasons and circumstances of his departure. Sometimes it turns out that the dismissal of an employee coincides with his being on sick leave. Consider the number of dismissal of an employee if he was on sick leave, or is on sick leave on the day of his dismissal. Situations are different, therefore, it is important to know what, in one case or another, the legislation on dismissal tells us.

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Question: Can an employee file a letter of resignation of his own free will, while on the sick leave, and can he be dismissed during this period?

The employee can notify the employer of dismissal not only during the period of work, but also during the period of vacation, and during temporary disability.

The Labor Code of the Russian Federation does not contain any obstacles to submitting an application for termination of his own free will in any form, including by sending it by mail.

Can an employee be fired on sick leave

This is clearly spelled out in the Labor Code, article 81 of which prohibits the employer from dismissing workers during periods of temporary disability. Only cases of liquidation of the enterprise or when this happens at his own request make up the exception. Therefore, when deciding on the issue of an employee, even during an illness, they proceed, first of all, from the one on whose initiative it occurs.

Is it possible to fire an employee who fell ill on the day of his reduction?

The employee is warned of a reduction in two months. But on the eve of the reduction, he fell ill. Is it possible to fire him during his illness? After all, the term for warning about the reduction has come to an end? We will deal with this situation.

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