On the day of dismissal, the employee is on sick leave. "Sick leave" on the day of dismissal: the actions of the employer. On their own initiative - dismissal without obstacles
Conflicts with workers must not only be resolved, but also prevented. Unfortunately, there are situations when it is quite difficult to do this. For example, an employee opens a certificate of incapacity for work on the day of dismissal upon termination employment contract at the initiative of the employer. What to do? Is the benefit paid or is the employee considered to have quit? What can be done to prevent such cases?
So, an extraordinary situation has arisen in your company. The employee is dismissed at the initiative of the employer under one of the paragraphs 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 an employment contract with the head of an organization). The procedure for terminating the contract has been complied with, the employee is familiarized with the order of dismissal, he was issued a work book with a note of dismissal and the calculation was made. And the next day, or a week later, or, perhaps, already in court, the employee presents the employer with a sick leave, opened on the day of dismissal, with a demand to cancel the order to dismiss him.
The question arises, what to do in this situation? Satisfy the employee's request and cancel the dismissal order, continuing with him labor Relations, or leave everything as it is, waiting for the conflict to develop? Formally, the date of dismissal on the initiative of the employer and the date of opening 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 the period of his temporary incapacity for work, and to cancel the controversial order.
But in judicial practice, over the past few years, the concept of inadmissibility of abuse of the right by the employee... The Labor Code of the Russian Federation does not contain the concept of “abuse of rights by an employee”. However, it is disclosed in paragraph 27 of the ruling of the Plenum of the Supreme Court Russian Federation dated March 17, 2004 No. 2 "On the Application by the Courts of the Russian Federation of the Labor Code of the Russian Federation" (hereinafter - Resolution of the Plenum of the RF Armed Forces No. 2): unfair actions of an employee to conceal temporary disability on the day of dismissal are unacceptable.
Despite the fact that labor legislation does not establish an employee's obligation to notify the employer about the opening of a sick leave, the intentional concealment of this fact on the date of dismissal (if it is possible 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: was it an abuse of the right, when the employee deliberately took "sick leave", or he became disabled for reasons beyond his control. Let's consider them in more detail.
Situation one: the employee "got sick" 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 very completion of the dismissal procedure. For example, immediately 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 dismissal order and receiving a work book, I already had a certificate of incapacity for work that was opened that day. In this case, the employee is dishonest, i.e. the very same "abuse of the right", which the Plenum of the RF Armed Forces speaks of in Resolution No. 2.
The given example differs slightly from the essence of those cases that are regularly heard 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 case No. 4g / 1-10400, St. Petersburg City Court dated September 23, 2010 No. 13190. The only difference is that in the above judicial acts the employee by the time of dismissal for some time (sometimes quite long) has a certificate of incapacity for work. And in our case, the employee decided to provide himself with "sick leave" only on the day of dismissal. But both in the above judicial practice, and in the situation we are considering, there will be an employee's dishonesty, abuse of his right not to be dismissed during the period of incapacity for work.
So, the cases considered by the courts, and our example, are characterized by the following signs of the employee's dishonesty:
- V the day of dismissal, the employee does not present a sick leave or a copy of it... Perhaps, for some reason, the employee does not have a sick leave or a copy of it with him at the time of dismissal.
- Employee does not communicate verbally, in writing or in any other way to any of the persons conducting the dismissal procedure, or to their management about the presence of an open sick leave by the time of dismissal.
Note that the regulatory enactments do not indicate which of the employer's representatives should be informed about the presence of a certificate of incapacity for work. The court draws its conclusions on the basis of specific circumstances.Collapse Show
The cassation ruling of the Investigative Committee on civil cases of the Moscow City Court dated July 22, 2010 No. 33-22024 / 10 states that the plaintiff reported that she had a sick leave to the staff of the personnel service and the secretary general director... The defendant tried to refute this argument by the fact that the employee did not personally report her “sick leave” to the general director. However, the court did not take this argument into account, considering the message about the certificate of incapacity for work in personnel service and to the director's secretary by proper notice to the employer of his sick leave. Moreover, from the circumstances of the case, the court found that the general director avoided communicating with the plaintiff. This conclusion of the court about the absence of abuse of the right on the part of 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 the employee not only by virtue of the actions of the employee himself. In this case, regardless of whether the employee reported his temporary disability or it became known in a different way, it is no longer possible to talk about the employer's ignorance about the sick leave.Arbitrage practice
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This situation is illustrated by the decision of the Leningrad Regional Court dated March 30, 2011 No. 33-1566 / 2011. In the case, we are talking about the fact that the immediate supervisor of the plaintiff announced her incapacity for work in memo addressed to the general director of the enterprise. Thus, the proof of the employer's awareness of the presence of an open sick leave from the plaintiff is the mention of it in this document. The first-instance court denied the plaintiff her 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 find an abuse of the right on the part of the employee.
Another decision considered an interesting situation when, on the day of dismissal, the plaintiff was disabled, but neither the employee nor the employer knew about the issuance of a sick leave.Arbitrage practice
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The plaintiff was dismissed on 12/22/2008, however, a certificate of incapacity for work was issued to her the next day after the dismissal, 12/23/2008, but from 12/20/2008, due to the fact that 12/19/2008 at 20 o'clock. 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 employee's temporary incapacity for work, and therefore did not accept the plaintiff's argument about the dismissal during the period of 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 23.03.2009).
- The employee presents a "sick leave" after the employment relationship with him is terminated, or "promulgates" it 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 the right.
In such situations (if the employee directly to the employer or in court makes a demand to reinstate him at work, as well as accompanying requirements (about payment for forced absence, compensation for moral damage, etc.) and there are no violations in the dismissal procedure), the employer can rightfully deny the employee the right to satisfying his requirements.
When considering the case in court, taking into account the current practice, the truth will be on the side of the employer, who should not suffer from the negative consequences of the employee's dishonesty. However, it should be taken into account that it is the employer who will have to prove the bad faith of the employee's actions and the fact of abuse of his right not to be dismissed during sick leave (clause 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 dated September 25, 2008 No. 33-3558, the dismissal of an employee during the period of his incapacity for work is an independent basis for his reinstatement at 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 circumstances listed above, which will confirm the bad faith of the employee's actions. Refusing to satisfy the employee's demands to cancel the order of dismissal, you must be sure that you will be able to prove the employee's bad faith in the event of his appeal to the court and / or the labor inspectorate.
Situation two: "sick leave" was received after all documents were completed
Consider a more complex and interesting situation: an employee, having gone through the dismissal procedure, having received a work book in his hands, leaves the place of work. And either immediately or at the end of the working day, he applies to medical institution and opens the sick leave on the same day. Accordingly, he subsequently informs the employer that he has a certificate of incapacity for work 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 the employee's dishonesty. Someone may indeed need medical attention due to the stress of being fired by an employer.
Arbitrage practice
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In the ruling of the St. Petersburg City Court dated 11.08.2011 No. 33-12339, a situation was considered when an employee tried to challenge the dismissal due to the fact that in the evening of the same day she was hospitalized due to deterioration of 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 clause 3 of the certificate of the Kemerovo Regional Court dated March 15, 2007 No. 01-19 / 150 on the practice of considering civil cases by the courts of the region in 2006, based on cassation and supervisory data, a case is analyzed when an employee was handed a dismissal order at 16.30, the working day ended at 17.00, and at 17.55 the employee applied for a sick leave. The District Court satisfied the plaintiff's claims, arguing only by the fact 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 had 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 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 the case 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 worth canceling the order and reinstating the employee at work, since the dismissal procedure had already been completed by the time the sick leave was issued.
Also in this situation, it is appropriate to say that the moment of termination of labor relations in this case is the moment when the employee is handed a dismissal order and a work book, and not the moment of the end of the working day. From that time on, the employer has no obligation to keep a job 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 disability.
What can the employer do in order to maximally protect himself in the event of such "surprises" from 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 familiarization with the dismissal order, the time of receiving it, the time of receiving the work book, calculation (if it 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 of their receipt. The witnesses will subsequently be able to confirm both the time when the employee was handed the documents of dismissal, 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 poor health;
- after the employee presents the sick leave, it is necessary to make a request to the medical institution that issued it. In the request, you need to request information about the time of the employee's appointment with the doctor, the time of issuing the "sick leave". If the case has gone to court, you can apply to summon as a witness the doctor who opened the certificate of incapacity for work;
- labor legislation does not establish a direct obligation of the employee to notify the employer about the opening of the "sick leave". However, from the analysis of the norms of the Labor Code of the Russian Federation, it follows that the observance of the employee's guarantees during the period of temporary disability (payment for sick leave, preservation of the workplace) depends on whether the employer knows about the "sick leave". Accordingly, a more “general” preventive measure will be the introduction into local regulations (for example, the Rules of Internal work schedule), in the job descriptions of employees, the obligation to notify the employer about open sick leave certificates directly on the opening day. This obligation will not contradict the norms of labor legislation, since it is aimed at observing labor discipline, after all, the employer needs, among other things, to draw up timesheets and put down the days of the employee's illness in them. And for the employee himself, this duty is useful in that its fulfillment ensures the timely and full provision of guarantees provided for by the Labor Code of the Russian Federation.
Footnotes
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There are often cases when it is necessary, for one reason or another, 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 you properly dismiss a worker and charge him the required compensation payments?
We quit during sick leave of our own free will
The employee can terminate the employment relationship with the employer on his own initiative, notifying him of this in writing at least 2 weeks before the day of dismissal. This period begins to count from the next day after the employer is notified of the dismissal (Article 80 of the Labor Code of the Russian Federation). If an employee goes on sick leave during this two-week period, then his illness does not act as an obstacle to dismissal. The same applies to termination of labor relations by agreement of the parties.
Important! During illness, the employee will be dismissed on the day indicated in his application without additional work off (letter from Rostrud No. 1551-6 dated 09/05/2006) and the employer cannot independently make changes to the date of dismissal. The employee has the right to do this himself - 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 cannot come to work due to illness. When an employee recovers before the date of dismissal, then it happens in accordance with the statement.
If on the day of dismissal the employee is on sick leave:
- the employer points out that he cannot bring the content of the document to the knowledge of the employee and fix his signature, because he is on sick leave;
- the employer must send the employee a notice of the need to obtain Money(salary, due compensation, allowances, additional payments), as well as a work book or obtain permission to send it by mail (Article 84.1 of the Labor Code of the Russian Federation). Starting from the date of sending such a notice, the employer is not responsible for the untimely receipt of the work book by the employee.
Important! The work book must be received by the employee on the day of dismissal indicated earlier in the application. If he is temporarily disabled, then the above paragraph 2 applies.
On his own initiative, an employee can quit while on sick leave. He has the right to send the application to work by mail or take it on his own, if his health condition allows.
Thus, the 14 days that the employee must work in connection with the dismissal will pass during his sick leave, if the illness exceeds these two weeks, otherwise the employee will spend the rest of the term at work. A certificate of incapacity for work (sick leave) issued by a medical institution must and can be brought to work immediately 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 the IP is closed.
When the termination of the employment contract is carried out at the request of the employer and the employee is on sick leave on that day, then it will be necessary to wait for him to leave the sick leave to formalize the dismissal. Dismissal can happen on the first day of release. This also applies to layoffs as a result of staff reductions.
Important! If an employee is on sick leave for a long period and there is no one to work, then the employer can register another person according to (Article 59 of the Labor Code of the Russian Federation), keeping the wording “until the main employee leaves”.
Payments for a certificate of temporary incapacity for work (sick leave)
A guide to hospital workers accrued both during labor relations and when these relations are terminated (Art. 5 Law No. 255-FZ of December 29, 2006).
1) If the sick leave (certificate of incapacity for work) was opened after dismissal. It means that a person got sick after being fired. For example, the date of dismissal is April 15, and the certificate of incapacity for work says "was in the hospital from April 18 to May 3 inclusive", that is, April 18 is the day the sick leave was opened, and May 3 was the day of its closing:
An employer for such sick leave is obliged to pay a retired employee if he fell ill within 30 from the day of dismissal. calendar days- in this case, he fell ill on the 3rd day after his 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 illness from the first to last day(exceptions - part 3 of part 4 of article 6 of Law No. 255-FZ) and is 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 - by the FSS.
The allowance is assigned if the employee applied for it no later than 6 months from the date of restoration of working capacity (part 1 of article 12 of Law No. 255-FZ). In the case described above, the day of restoration of the ability to work is considered May 4, we count 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 the employee for valid reasons with evidence, then the decision on the calculation of benefits is entrusted 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 body pays an allowance in the event of the closure of the enterprise or if it does not have money in its current accounts. Working part-time, the employee will receive an allowance for each place of work or for the last of them (Article 13 of Law No. 255-FZ).
Important! When will the employee receive the allowance? The employee will receive the sick leave benefit accrued by the accounting department on the day the salary is issued - this is either the day of full payment for the salary, or the day of advance payment in the organization (IP), and so on the next of these days, the employee will receive money minus income tax.
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 of its closure, inclusive, in the same amount as if there was no termination of the employment contract, i.e. full. The basis for the accrual and payment is a correctly executed sick leave.
Important! Payment for sick leave, opened during the period of the employment contract, on a general basis, is made even when the worker is dismissed by the date of its closure.
When calculating the allowance, the employee's insurance experience is taken into account (clause 1 of article 7 of Law No. 255-FZ)
The right of an employee to terminate an employment contract with an employer under on their own enshrined in the provisions of Article 80 of the Labor Code.
To exercise this right, an employee must warn about his desire to leave the employer in writing no later than two weeks *.
* The course of the specified period begins on the next day after the employer receives the employee's letter of resignation.
By agreement between the employee and the employer, the employment contract may be terminated even before the expiry of the notice of dismissal.
In cases where the employee's application for dismissal on his initiative is due to the impossibility of continuing his work (enrollment in educational organization, 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 is obliged to terminate the employment contract within the period specified in the employee's application.
At the same time, before the expiration of the term of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not made unless another employee is invited in his place in writing, to whom, in accordance with current legislation may not be refused to conclude an employment contract.
Upon expiration of the term of the notice of dismissal, the employee has the right to stop working. On the last day of work, the employer is obliged to issue the employee with a work book, other documents related to the work, upon a written application from the employee, and make the final settlement with him.
If, after the expiry of the notice of dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues.
Guarantees for an employee in case of temporary work ability 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 a temporary disability benefit in accordance with federal laws.
The amount of benefits for temporary disability and the conditions for their payment are established by federal laws.
Federal Law of December 29, 2006 No. 255-FZ "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 coverage provided to them,
- establishes the rights and obligations of subjects of compulsory social insurance,
* Law No. 255-FZ does not apply to relations related to providing citizens with benefits for temporary incapacity for work in connection with an industrial accident or occupational disease.
In the article, we will consider the features of calculating benefits when an employee is dismissed during sick leave, as well as cases when an employee brings a sick leave, opened after the dismissal.
The sick leave is open until the termination of employment
An employee who leaves of his own free will 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 from the workplace does not affect the employee's right to dismiss at his own request.At the same time, even if the employee is at the workplace, it is quite possible that in two weeks of "working off" he may get sick and not recover by his last working day.
If at the same time such an employee did not withdraw his letter of resignation, 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 must dismiss him on the day indicated in the application. about dismissal.
Based on the provisions of Article 81 of the Labor Code of the Russian Federation, the dismissal of an employee during the period of his temporary incapacity for work at the initiative of the employer is not allowed. However, if an employee leaves at his own request, this provision of the Labor Code of the Russian Federation does not apply, since the employer has a letter of dismissal from the employee.
Clarifications 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 about it in writing two weeks in advance.
An employee can warn the employer about dismissal not only during the period of work, but also during the period of being on vacation and during the period of temporary disability. In this case, the date of the alleged dismissal may also fall on the indicated periods.
The Labor Code does not contain obstacles for filing a resignation letter of one's own free will in any form, including by sending it by mail. Thus, the employee can send the employer a corresponding statement, for example, by registered mail.
The rule set out in Art. 81 of the Code, according to which the dismissal of an employee during the period of his temporary incapacity for work and during the period of being on vacation is not allowed, applies only to cases of dismissal at the initiative of the employer. "
Accordingly, the accountant often has the question of how to calculate the sick leave, which begins during the period of the employee's work in the organization, and ends after his dismissal.
According to Part 1 of Art. 13 of Law No. 255-FZ, the assignment and payment of benefits for temporary disability are carried out by the insured at the place of work (service, other activity) of the insured person.
If the insured event occurred during the validity of the employment contract, the allowance must be calculated and paid for the period from the beginning of the sick leave to the day of closing the certificate of incapacity for work in the same amounts as if the employee continued working.
Accordingly, the allowance is paid for the period from the beginning of the sick leave to the day of its closing, inclusive.
The basis for the appointment and payment of such benefits is a correctly drawn up certificate of incapacity for work (part 5 of article 13 of Law No. 255-FZ).
Temporary incapacity for work is paid in full not only for the employee himself, but also for sick leave to care for a child.
According to clause 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 certificates of incapacity for work." A certificate of incapacity for work is not issued for care:
- for a sick family member over 15 years old with inpatient treatment;
- for chronic patients in remission;
- during the period of annual paid leave and unpaid leave;
- during maternity leave;
- during the period of parental leave until the child reaches the age of 3 years, with the exception of cases of work performed during the specified period on a part-time basis or at home.
Recall that in accordance with clause 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, during quarantine, prosthetics for medical indications and follow-up care in sanatorium-resort organizations immediately after the provision of medical inpatient care is paid in the following amount:
- an insured person with an insurance experience of 8 years or more - 100 percent of the average earnings;
- an insured person with an insurance experience of 5 to 8 years - 80 percent of the average earnings;
- an insured person with up to 5 years of insurance - 60 percent of the average earnings.
The sick leave is open after the employee's dismissal date
In accordance with the provisions of clause 1 of article 5 of Law No. 255-FZ, the provision of insured persons with temporary disability benefits is carried out in the following cases:- disability due to illness or injury, including in connection with an operation to artificially terminate pregnancy or the implementation of in vitro fertilization (hereinafter - 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;
- implementation of prosthetics for medical reasons in a stationary specialized institution;
- follow-up treatment in the prescribed manner in sanatorium-resort organizations located on the territory of the Russian Federation, immediately after the provision of medical care in stationary conditions.
- during the period of work under an employment contract,
- carrying out official or other activities,
Accordingly, an employee who no longer works in the organization and falls ill within 30 calendar days from the date of termination of the employment contract has the full right to present former employer sick leave, and the employer is obliged to pay for this sick leave.
The reasons for dismissal and the duration of temporary disability can be any, this does not matter in this case.
But the reason for temporary incapacity for work is important - the considered norm of clause 2 of article 5 of Law No. 255-FZ applies only to cases related to illness or injury of the insured person himself. Accordingly, if, within 30 days after the dismissal, the employee brings, for example, a sick leave for caring for a child, the temporary disability benefit on this basis is not assigned to him and is not paid.
According to clause 1 of article 6 of Law No. 255-FZ, temporary disability benefit in case of loss of ability to work due to illness or injury is paid to the insured person for the entire period of temporary disability until the day of restoration of the ability to work (establishment of disability) *.
* Except for the cases specified in parts 3 and 4 of article 6 of Law No. 255-FZ.
According to subparagraph 1 of paragraph 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 a legal relationship on compulsory social insurance in case of temporary disability and in connection with motherhood, in accordance with Art . 4.5 No. 255-FZ):
- for the first three days of temporary incapacity for work - 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.
If the application for the benefit occurred after the expiration of the specified period, the decision on the grant of the benefit is made by the territorial body of the insurer if there are good reasons for missing the period for applying for the benefit. For such reasons, according to the Order of the Ministry of Health and Social Development of Russia dated 01/31/2007. No. 74 include:
- force majeure, that is, extraordinary, unavoidable circumstances (earthquake, hurricane, flood, fire, etc.);
- long-term temporary incapacity for work 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 due to illegal dismissal or suspension from work;
- damage to health or death of a close relative;
- other reasons recognized as valid in court (when the insured persons apply to the court).
In cases of termination of activities by the insured on the day the insured person applies for benefits, or if it is impossible to pay it by the insured due to insufficient funds in his current account, the insured person applies for the payment of benefits to territorial body of the insurer.
As a reminder, insured persons working for several employers receive temporary disability benefits on the basis of sick leave. for each place of work or for one of the last places of work(services, other activities) at the choice of the insured person (Article 13 of Law No. 255-FZ).
In case of illness, such an employee is issued an appropriate number of certificates of incapacity for work to be presented at each place of work.
Clause 2 of Article 5 of Law No. 255-FZ does not provide for any restrictions on the appointment of temporary disability benefits for part-time workers.
So if external part-time will bring 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 benefit and pay the corresponding amount.
On the basis of clause 2 of article 7 of Law No. 255-FZ, benefits for temporary incapacity for work in case of loss of ability to work due to illness or injury are paid to the insured:
- in the amount of 60% of average earnings in case of illness or injury that occurred within 30 calendar days after the termination of work under an employment contract, service or other activities, during which they are subject to compulsory social insurance in case of temporary disability and in connection with motherhood.
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 need to be paid the benefits within the above terms.
The legal literacy of fellow citizens is steadily growing, 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 employees are using our liberal labor legislation not for their intended purpose, but in order to “cut more” from the company in the absence of its fault.
Here is another scheme from my "collection": on the day of dismissal, at the initiative of the employer, an employee opens a sick leave without informing about it. Further, after some time, the employee applies to the court with a demand not only for reinstatement at work, but also for payment of average earnings for “forced absenteeism”, and compensation for moral damage, since the dismissal took place during a period of temporary disability.
This is directly prohibited by the Labor Code of the Russian Federation: “It is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of the organization or termination of activities individual entrepreneur) during the period of his temporary incapacity for work and during his stay on vacation ”(part 6 of article 81 of the Labor Code of the Russian Federation).
But the employee does not seem to be obliged to notify about 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 at the initiative of the employer, it is extremely important not only to have strong evidence of the validity of the dismissal, but also to clearly comply with the established procedure for it. And a competent worker, playing ahead of the curve, has much more opportunities to form an evidence base in advance for a future trial.
In particular, it is enough for him simply not to inform about the opening of a sick leave, while the employer is obliged to inform in advance about the upcoming dismissal, familiarize him with the dismissal order, issue a work book, etc.
And that the dismissal was made during the period of temporary disability, the employer learns after some time and, as a rule, already in court.
What to do? Satisfy the request voluntarily, since the violation is formally taking place? Or try to defend your point of view on the grounds that the employee has abused his right?
The courts, as a rule, recognize the abuse of the employee's actions if on the day of dismissal he did not present a sick leave (copy) or did not inform orally about the fact of temporary incapacity for work, but presented it after the final registration of the dismissal or already in court proceedings.
Of course, if the date of dismissal on the initiative of the employer and the date of opening the sick leave coincide, it is very likely 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 comes after the closure of the sick leave, and the payment of temporary disability benefits. As a maximum - the restoration of the employee and the payment of compensation.
In my opinion, the decision must be made depending on the specific situation.
If the sick leave is open BEFORE dismissal
If an employee opened a sick leave before dismissal, then most likely this will be done:
after notification of the upcoming dismissal, some time before the day of dismissal, or
on the day of dismissal (for example, before work).
That is, an employee who is already aware of the upcoming dismissal already has a valid certificate of incapacity for work, but does not inform the employer about it.
Thus, in court it is necessary to prove the fact that the employee concealed his incapacity for work. Please note: it is the employee's intentional concealment of his disability that must be proved, 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 rights is prohibited (clause 1 of article 10 of the Civil Code of the Russian Federation), but the norms of labor relations are civil law not applicable.
At the same time, the principle of the inadmissibility of abuse of law is universal, that is, it should be applied in all branches of law. This was also indicated by the Supreme Court of the Russian Federation.
When considering cases of reinstatement at work, the Armed Forces of the Russian Federation 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 an employment contract with them, the general legal principle of inadmissibility of abuse of rights, including on the part of employees, must be observed.
In particular, it is unacceptable for an employee to conceal temporary disability at the time of his dismissal from work (paragraph 27 of the Resolution of the Plenum The Supreme Court RF dated 17.03.04 No. 2 "On the application by the courts of the Russian Federation of the Labor Code of the RF").
By the way, 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, an elected collegial body of a trade union organization structural unit organizations (not lower than the shop floor and equivalent to it), not exempt from the main job, when the decision of the issue of dismissal must be made in compliance with the procedure for taking into account the motivated opinion of the elected body of the primary trade union organization or, respectively, with the prior consent of the higher elected trade union body.
In any case, when the court establishes the fact of abuse by the employee of the right, the court may refuse to satisfy his claim for reinstatement at work, since in this case the employer should not be responsible for the adverse consequences resulting from the employee's unfair actions.
At the same time, the court can indicate to the employer the need to change the date of dismissal by the next date after the closure of the sick leave and pay benefits for temporary incapacity for work.
Sick leave is open AFTER dismissal and outside working hours
Another option is also possible: the employee opens a sick leave after dismissal, that is, after he is familiar with the dismissal order and signs it, he will receive a work book, a calculation and leave work.
If the sick leave was opened at the end of the working day, then the dismissal will most likely be recognized as legal. Thus, the court refused to satisfy the request to reinstate an 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 the period of her temporary incapacity for work, in support of which she submitted a certificate of incapacity for work.
The court established that on the day of dismissal the plaintiff was at work, at about 4 pm to 5 pm the employer's representatives handed her a dismissal order, which was placed on her desk. An act was drawn up stating that the dismissed categorically refused to get acquainted with the order on her dismissal.
On the same day, at 19:31, the plaintiff was taken to the emergency room of the hospital, at 20:49 she was transferred from the emergency room to the department, then she was in the hospital for some time, which was confirmed by the certificate of temporary incapacity for work.
The City Court of St. Petersburg issued a cassation ruling on this issue (dated 11.08.11 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 at the time of the dismissal, the employee was able to work.
Thus, there were no violations on the part of the employer in the dismissal procedure. The employee's application for dismissal during the period of incapacity for work was regarded by the court as an abuse of the right.
The sick leave is opened AFTER dismissal, but within a working day
It's a different matter if an employee opens a sick leave within the working day and informed the employer about it, but he did not react in any way.
Here there is a high probability that the court will take the side of the employee, since there can be no talk of abuse of the right in this case.
So, the employee was dismissed due to 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 went to the clinic and he was given a sick leave. Having closed the sheet of temporary incapacity for work, the employee filed a claim for reinstatement at work.
There is one nuance here: there was also a violation of the dismissal procedure due to staff reductions, since the employer did not offer the redundant all the vacancies he had. It was announced not only about illegal dismissal during the period of temporary incapacity for work, but also about the violation of the reduction procedure.
The court satisfied the claim, indicating that the employee must complete his last working day, since the day of termination of the employment 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 court also pointed out three very important points:
dismissal is illegal, because the dates of dismissal and the date of the beginning of temporary disability coincide;
receipt of a certificate of incapacity for work took place BEFORE the end of the working day;
the employee timely, that is, on the same day, informed the employer about the onset of temporary disability, that is, gave the employer the opportunity to take steps to cancel the unlawful dismissal order.
These grounds became the reason that the employee did not abuse his right, did not hide his temporary disability, and therefore the dismissal is illegal (the decision of the Achinsk City Court Krasnoyarsk Territory dated 24.01.12 No. 2-2712 / 2012).
One more point: the employee must 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, then it is obvious that he does not have the opportunity to inform the employer about this. There is also no question of abuse of the right in this case, and the courts recognize the dismissal as illegal.
How to find out the opening time of the sick leave?
Since patients are not always admitted by appointment, the information you need may simply not be.
You can try to send a request to the medical institution that issued the sick leave, but, most likely, this will not help, since information about the fact of a citizen's appeal for medical care, his state of health and diagnosis, other information obtained during his medical examination and treatment constitutes a medical secret and cannot be divulged without the patient's written consent (parts 1-3, article 13 Federal law from 21.11.11 No. 323-FZ "On the basics of health protection of citizens in the Russian Federation").
Therefore, it seems more justified to petition the court to demand 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 tell lies in cold blood can play in the employer's favor, as well as the fact that employees are absolutely sure that dismissal during illness is in any case illegal.
Therefore, sometimes it is enough in court to directly ask when exactly the employee turned to the doctor for a sick leave - before or after reading the order of dismissal and receiving a work book. In most cases, the employee answers honestly and tells the time - as a rule, until the end of the termination procedure, because either 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 leave, as well as provide evidence that the employee really did not do this.
We take preventive measures
In order to minimize the risk of the above situations occurring, the following preventive measures can be taken.
First, 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. and the fact that at the final registration 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, the entire day of dismissal should be scheduled in documents by the minute. Or at least you should ask the employee to put down not only the date, but also the actual time of familiarization with the dismissal order, receipt of the order and work book.
Of course, the employee can refuse, since 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, to include in the standard dismissal order the phrase: "I hereby confirm that I have no obstacles to termination of employment, including an open sheet of temporary incapacity for work." This will be enough to confirm that the employer took all possible measures in order to terminate the employment relationship without violations, and the employee either did not have an open sick leave, or deliberately concealed its presence.
Fourthly, to consolidate in labor contracts, job descriptions, the rules of the internal labor regulations, the duty of the employee to notify the employer about the onset of temporary disability. 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 employee's illness because he is obliged to provide him with all the guarantees provided by law, including paying for sick leave and keeping him workplace.
It would not be a violation to include, for example, in the internal labor regulations 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 working capacity, employees are required to submit the original certificate of temporary incapacity for work for the period starting from the first day of absence from the workplace and until the date of the end of the period of incapacity for work. "
Most likely, not a single examiner will stick to this wording. However, if claims do arise, then it should be indicated that the establishment of the obligation in question is aimed at:
ensuring the rights of the employee (to pay for the days of temporary disability, to preserve his workplace for the period of illness);
observance of labor discipline (the employer is obliged to keep track of the working time, noting the days of illness of the employee in the time sheet).
Last considerations
Of course, there are different situations in life, and it is possible that an 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 himself complained about poor health and asked the management to release him 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 incapacity for work. Strictly speaking, it is cheaper than taking the case to court.
The only question is to exclude unscrupulous behavior of the employee.
A study of the announcements on the lampposts clearly shows that it is not a problem to issue a sick leave without unnecessary questions and formalities.
In order to minimize the risk of such a situation, it is possible to establish the need for a full working off of the last day by the quitting employee and formalize the dismissal at the end of the working day (it is obvious that in this case the employee simply will not be able to go to the clinic on the day of dismissal).
If the sick leave has already been presented, then it will not be superfluous first of all to 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 implementation of the Social Insurance Fund of the Russian Federation to verify compliance with the procedure for issuing, extending and issuing certificates of incapacity for work (approved by order of the Ministry of Health of Russia dated December 21, 2012 No. 1345n).
IMPORTANT:
"The dismissal of an employee at the initiative of the employer (except for the case of liquidation of the organization or the termination of activities by an individual entrepreneur) is not allowed during the period of his temporary disability 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 concealed his incapacity for work. Please note: it is the employee's intentional concealment of his disability that must be proved, and not that the employer did not know about it.
If this can be proved, then it can be almost confidently asserted that the court will side with the employer, since the employee has abused his right.
The employee must fully complete his last working day, since the day of termination of the employment 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 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, then 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 first of all to check whether this sheet is genuine. To do this, you can contact the territorial department of the FSS of Russia with a request to conduct an audit in accordance with the Procedure for the implementation of the Social Insurance Fund of the Russian Federation to verify compliance with the procedure for issuing, extending and issuing certificates of incapacity for work (approved by order of the Ministry of Health of Russia dated December 21, 2012 No. 1345n).
Marina DASHEVSKAYA, lawyer
Question... It is not uncommon for a dismissed employee after some time, for example, a month after the dismissal, or six months later, to present the former employer with a certificate of incapacity for work, which was opened either during the period of his work, or within a month after the dismissal, and demands to be paid for it. How should the employer act in this situation? 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 at the initiative of the employer during the period of his temporary disability is not allowed, except in cases of liquidation of the organization or the termination of activities by an individual entrepreneur.
According to Part 2 of Art. 5 of the Federal Law of December 29, 2006 N 255-FZ "On compulsory social insurance in case of temporary disability and in connection with motherhood", temporary disability benefits are paid to insured persons during the period of work under an employment contract, performance of official or other activities, as well as in cases when the illness or injury occurred within 30 calendar days from the date of termination of the specified work or activity, or in the period from the date of the conclusion of the employment contract until the day of its cancellation.
In other words, the employer has the obligation to pay the employee a sick leave if the employee's temporary disability as a result of illness or injury occurred both during the period of work under an employment contract and within 30 days from the date of termination of the employment contract (i.e. dismissal of the employee ).
In accordance with Part 2 of Article 7 of the Federal Law of December 29, 2006 N 255-FZ "On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Maternity", if a certificate of incapacity for work is issued during the period of work, then it is paid according to the general rules, and if within 30 calendar days from the date 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, to the question "should the sick leave be paid after dismissal?" should answer:
Yes, the employer is obliged to pay the sick leave to the employee even after his dismissal, in the event of the employee's incapacity for work 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 about the fact of the employee's disability), as well as within 30 days from the date of dismissal of the employee.
Sick leave day
The situation when an employee provides sick leave on the day of dismissal happens quite often. In this situation, it is necessary to carefully understand, since it so happens that an employee intentionally received sick leave on the day of dismissal. This happens in cases where an employee is fired for 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 illness, employers pay employees temporary disability benefits. As practice shows, conflicts often arise on this matter. We hope this article helps you avoid these mistakes.
- the employee was on follow-up treatment in a sanatorium-resort institution immediately after inpatient treatment in the direction of a medical institution;
The first two days of sick leave are paid by the employer.
I will write my question more precisely in relation to the question asked on 06/16/2014, namely: The employee wrote a statement “Please provide me another vacation from May 12 to June 08, 2014 for 28 calendar days. From June 09, 2014 I ask you to dismiss me of your own free will. " The employee provided sick leave from May 12 to May 23, 2014 for 12 days. The question of what date to fire an employee: 06/09/2014.
Sick leave 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 labor relationship of the specialist with the company ends
The most common option is that 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 leave falls on two weeks of "work" and during the same period he falls ill, the employer can extend the rest time, but only until the day indicated in the letter of resignation, since the boss has no right to change the date of dismissal unilaterally.
Sick leave "on the day of dismissal: actions of the employer
What if the date of dismissal initiated by the employer and the date of opening the certificate of incapacity for work coincide? On the one hand, there are reasons 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 the period of his temporary incapacity for work, and to cancel the controversial order. On the other hand, at the time of dismissal, the employee did not say a word about the disease. Is it possible not to satisfy the employee's demand and leave everything as it is, or is it better to cancel the dismissal order, continuing the labor relationship with him? The author considers two situations: when an employee “got sick” on purpose and when he received a “sick leave” after all the documents were completed.
Conflicts with employees must not only be resolved, but also prevented.
Is it possible to fire an employee during illness?
Dismissal of an employee at the initiative of the employer during the period of his sick leave is not allowed. It's another matter if a person leaves of their own accord.
The company cannot dismiss an employee who is on sick leave on its own initiative. This is clearly stated in the last paragraph of Article 81 of the Labor Code: “it is not allowed to dismiss an employee at the initiative of the employer
Sick leave payment to a dismissed employee
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 a sick leave if an illness or injury occurs within 30 calendar days from the date of completion of work.
Thus, if a former employee provides a sick leave specifically for caring for a child, then the organization does not have grounds for calculating benefits in accordance with Article 13 of Federal Law No. 255-FZ.
Employees who quit the organization and did not get a job new job, in case of illness or injury, they can provide a sick leave for payment at the last place of work, in accordance with Part 2 of Article 5 of Federal Law No. 255-FZ.
Read also: Shorter working hours
The employer must pay sick leave in accordance with the requirements of Article 6 of Federal Law No. 255-FZ, i.e.
10 days have passed since the dismissal, I am on sick leave
The sick leave does not interrupt the notice period for the employer. You should have been fired on 12/11/13 in accordance with your application. During sick leave, you cannot be dismissed only at the initiative of the employer, but if you terminate the contract at your own request, you can.
If the salary payment is made to a bank card on the day the salary is issued in accordance with the employment contract or the Regulation on the payment of salary (other local act organization, where the dates of issuance of the salary are indicated and to which there is a reference in the employment contract).
If the salary is issued in cash, then you need to write an application for the payment of the salary after.
Employee got sick on the day of dismissal
We have a difficult situation in the company. An employee quits. The order was signed on the eve of the last day of its work. And on the day of dismissal, the employee brought a sick leave. The question arose, can he be fired? And if so, what about the sick leave payment? How many days do we have to 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 fire an employee during the period of his temporary incapacity for work, because the Labor Code of the Russian Federation (hereinafter - the Labor Code of the Russian Federation) does not give the only solution this situation.
Dismissal on sick leave
If the employee is on temporary leave due to incapacity for work, the employer is not entitled to start the dismissal process on the day of the sick leave (Labor Code of the Russian Federation 81, article 6, part). As for an employee who arrives on sick leave, he may well terminate the employment relationship. From time to time, workers abuse this situation.
Sometimes dismissing an employee on their own initiative is a great way to avoid conflict when terminating an employment contract.
Sick leave of an employee on the day of dismissal
If an employee falls ill on the day of dismissal, then the allowance is paid to him according to the general procedure. It is impossible to fire an employee during a period of illness (Article 81 of the Labor Code). But there are situations when an employee long time did not appear at work and did not make itself felt. He is fired for absenteeism, and he returns and presents a sick leave, confirming the entire time of absence. When an employee goes to court with a complaint about illegal dismissal he will be reinstated at work.
On August 12, 2010, I went to the hospital with a diagnosis of osteochondrosis of the cervical spine, on August 16, I quit.
Sick leave fell on the date of dismissal
How to pay sick leave if it is open until the day of dismissal? Does the date of dismissal shift in such a situation? The answers to these questions are in the article.
To answer these questions, let us turn to the norms of the law.
What is the date to fire a sick employee
By general rule the employee has the right to terminate the employment contract by notifying the employer about this in writing no later than two weeks before the dismissal. The duration of the notice of dismissal begins the next day after the employer receives the employee's application for dismissal (part 1 of article 80 of the Labor Code of the Russian Federation).
Note. With the consent of both parties, the employment contract can be terminated even 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 mandatory two weeks working off... Consequently, in the period after the submission of the application, the employee can work, get sick, be on vacation, on a business trip.
Finding an employee on sick leave in this case is not an obstacle to terminate an employment contract. Let's explain why.
The prohibition on the dismissal of an employee during the period of his temporary disability is established by part 6 of article 81 of the Labor Code of the Russian Federation only for cases of dismissal of an employee at the initiative of the employer, that is, on the grounds specified in part 1 of article 81 of the Labor Code of the Russian Federation.
Note... List of grounds on which an employment contract can be terminated at the initiative of the employer
The list of grounds for dismissing 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, in particular:
- liquidation of the organization;
- reduction in the number or staff of employees;
- inconsistency of the employee with the position held or the work performed;
- change of the owner of the organization's property;
- a single gross violation of labor duties by an employee.
Note. The employee has the right to stop working after the expiry of the notice of dismissal (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. Consequently, the employer, despite the employee's incapacity for work, is obliged to dismiss him after the two-week notice period.
The suspension of the two-week warning period for the period of illness is not provided for by the current legislation.
Note. Explanation of specialists from Rostrud
If during the period of the two-week notice of dismissal the employee was disabled, the term of the notice of dismissal for the number of days of illness is not extended (Rostrud letter of 05.09.2006 N 1551-6).
In the situation under consideration, the day of dismissal falls on April 15. It is on this date that the order of the employer to terminate the employment contract with the employee should be issued, the work book was issued and all payments due to the dismissed, 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 a payment requirement (part 1 of article 140 of the Labor Code of the Russian Federation).
Note. The letter of resignation can be revoked
Before the expiry of the term of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not made, unless another employee is invited in his place in writing, who, in accordance with the Labor Code of the Russian Federation and other federal laws, cannot be denied the conclusion of an employment contract (part 4 of Art. 80 of the Labor Code of the Russian Federation, sub. c "Clause 22 of the Resolution of the Plenum of the RF Armed Forces of 17.03.2004 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 the employment contract is the last day of the employee's work, and not the day off (Article 84.1 of the Labor Code of the Russian Federation).
What day of work is considered the day of dismissal is specified in part 4 of article 14 of the Labor Code of the Russian Federation.
So, if the last day of the term of dismissal falls on a weekend, the day of the end of this term will be the next working day following the weekend.
For example, the 14th day of the notice of dismissal (with a standard five-day period) fell on Saturday, therefore, the day of dismissal will be Monday.
Read also: Application for sending a work book by mail - sample
If on the day of dismissal the employee is on sick leave
Since on the day of dismissal the employee is on sick leave, the employer does not have the opportunity to acquaint him with the order against signature and give him a work book.
In this situation, the employer must:
- on the order (order) to terminate the employment contract, make a note about the impossibility of bringing it to the attention of the employee due to the absence of the latter;
- send the employee a notice of the need to appear for a work record book or agree to send it by mail. From the day the specified notification is sent, the employer is released from liability for the delay in issuing a work book.
How to pay sick leave for a dismissed employee
Now let's talk about how to pay a sick leave to a resigning employee.
In the situation under consideration, the incapacity for work occurred during the period of the employment contract, which means that the benefit must be paid for the entire period of illness until the day of restoration of the ability to work, including days after the date of dismissal (part 1 of article 6 of the Federal Law of December 29, 2006 N 255- Federal Law "On compulsory social insurance in case of temporary disability and in connection with motherhood", hereinafter - Law N 255-FZ).
Payment for temporary disability benefits must be made taking into account the employee's insurance experience as of the date of the insured event, that is, in the amount (part 1 of article 7 of Law N 255-FZ):
- 100% of average earnings - if the insurance experience is 8 years or more;
- 80% of average earnings - from 5 to 8 years old;
- 60% of average earnings - less than 5 years.
The term for the appointment and payment of benefits. The employer must (part 1 of article 15 of Law N 255-FZ):
- assign a temporary disability benefit within 10 calendar days from the date of the employee's request to receive it with the necessary documents;
- to pay the allowance on the next day after its appointment, set for the payment of wages.
If by the time of dismissal the employee does not submit a certificate of incapacity for work, then the employer will make a payment upon dismissal with this employee, excluding the amount of the benefit.
As soon as the sick leave is received by the organization, the benefit will be paid on the day following the assignment of the benefit, set by the employer for the payment of wages.
got sick on the day of dismissal
Sick leave after dismissal
Visitors legal advice asked 52 questions on the topic "Sick leave after dismissal." On average, the answer to a question appears in 15 minutes, and to a question we give a guarantee of at least two answers, which will begin to arrive within 5 minutes!
There is a lot of information on payment of patients during service, before dismissal. And what is the right way to pay sick leave within a month from the date of dismissal? After being fired from the police station on November 30, 2010, I was from 2 to 21.
If an employee falls ill after being laid off, the employer is obliged to pay sick leave.
The former employee, by registered mail, sent the former management a sick leave, opened the day after the dismissal, demanding payment. At the same time, five months have passed since the day of dismissal.
Yes, in this case, you are obliged to pay the sick leave, if the former employee was no longer employed and this can be confirmed by the presentation of his work book.
If I quit my job and get sick the next day, who will pay for the sick leave?
Citizens who become ill or injured within 30 calendar days after can apply for benefits from the employer at their last place of work or directly to the territorial office of the Social Insurance Fund. The basis is clause 2 of Article 13 of the Federal Law of 29.12.2006 255-FZ (hereinafter - Law 255-FZ).
certificate of incapacity for work. Sick leave payment will be made if the illness or injury occurred within 30 calendar days after the 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 (had been 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 for cases when the employee did not actually work, but the place of work remained for him.
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It happens that due to family circumstances I am late for work. Every time I write an explanatory letter to the chief 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 work book how was your dismissal day? Will sick leave be paid?
■ Yes, you have to pay for sick leave. The ballot is paid even in cases where the illness or injury occurred within 30 calendar days from the date of dismissal.
What is the number of dismissals of an employee if he was on sick leave
Dismissal of an employee must always take place 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 how many to fire 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 the legislation on dismissal tells us in this or that case.
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Question: Can an employee apply for dismissal of his own free will, while on sick leave, and can he be dismissed during this period?
The employee can warn the employer about dismissal not only during the period of work, but also during the period of being on vacation, and during the period of temporary disability.
The Labor Code of the Russian Federation does not contain obstacles for filing an application for dismissal of one's own free will in any form, including by sending it by mail.
Can an employee be fired on sick leave
This is clearly stated in Labor Code Article 81 of which stipulates that the employer must not dismiss employees during periods of temporary incapacity for work. The only exceptions are cases of liquidation of an enterprise or when it happens at its own request. Therefore, when deciding the question of an employee, even during illness, one proceeds, first of all, from the person on whose initiative it occurs.
Is it possible to fire an employee who fell ill on the day of his layoff?
The employee was warned about the layoff two months in advance. But on the eve of the cut, he fell ill. Can you fire him when he is sick? After all, the term of the warning about the reduction has come to an end? Let's look at this situation.
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