Sick leave on the day of dismissal. Sick leave and dismissal

Question. It is not uncommon for a dismissed employee, after some time, for example, a month after dismissal, or six months later, to present his former employer with a certificate of incapacity for work, opened either during the period of his work, or within a month after dismissal, and demands to pay for it. How should an employer act in this situation? Does the employee have the right to sick pay in this case?

According to Part 6 of Art. 81 of the Labor Code of the Russian Federation, it is not allowed to dismiss an employee at the initiative of the employer during the period of his temporary disability, except in cases of liquidation of the organization or 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 maternity”, 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 during the period 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 sick leave if the employee’s temporary disability as a result of illness or injury occurs both during the period of work under the 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 average earnings, and if on the last day of work, i.e. on the day of dismissal - then in the general order.

Thus, to the question “should sick leave be paid after dismissal?” should answer:

Yes, the employer is obliged to pay 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 about the employee’s disability at the time of dismissal), as well as within 30 days from the date of dismissal of the employee.

Sick leave on the day of dismissal

The situation when an employee provides sick leave on the day of dismissal often happens. In this situation, it is necessary to carefully understand, since it happens that an employee deliberately received sick leave on the day of dismissal. This happens in cases where an employee is fired for any reason or for non-compliance. In this case, the employer has the right to question the sick leave and demand that the situation be looked into.

Sick leave

During illness, employers pay employees temporary disability benefits. As practice shows, conflicts often arise over this issue. We hope this article will help you avoid these mistakes.

- the employee was undergoing follow-up treatment in a sanatorium-resort institution immediately after inpatient treatment on 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 June 16, 2014, namely: The employee wrote a statement “I ask you to grant me another vacation from May 12 to June 8, 2014 for 28 calendar days. From June 9, 2014, I ask you to dismiss 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 to dismiss the employee: 06/09/2014.

Sick leave versus dismissal

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

The most common option is for the employee to write 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 part of his annual paid leave falls within two weeks of “working off” and during the same period he falls ill, the employer can extend the rest period, but only until the day specified in the resignation letter, since the boss does not have the right to change the date of dismissal unilaterally.

Sick leave on the day of dismissal: employer actions

What to do if the date of dismissal at the initiative of the employer and the date of opening the certificate of incapacity for work coincide? On the one hand, there are grounds to apply Part 6 of Art. 81 of the Labor Code of the Russian Federation, which contains a ban on the dismissal of an employee during the period of his temporary disability, and 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 request and leave everything as it is, or is it better to cancel the dismissal order and continue the employment relationship with him? The author considers two situations: when an employee “got sick” intentionally and when he received “sick leave” after completing all the documents.

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 while he is on sick leave is not permitted. It’s another matter if a person quits of his own free will.

The company cannot fire 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: “the dismissal of an employee at the initiative of the employer is not allowed

Payment of sick leave to a dismissed employee

Federal Law No. 255-FZ establishes cases when an employer must pay sick leave when dismissing an employee. Thus, according to Part 2 of Article 5 of Federal Law No. 255-FZ, the employer must pay sick leave if the illness or injury occurs within 30 calendar days from the end of work.

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

Employees who left the organization and did not find a new job, in the event 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.

Read also: Reduced working hours

The employer must pay for sick leave in accordance with the requirements of Article 6 of Federal Law No. 255-FZ, i.e.

It’s been 10 days since I was fired, I’m on sick leave

Sick leave does not interrupt the employer's notice period. You should have been fired on 11/12/13 in accordance with your statement. During sick leave, you cannot be fired 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 Regulations on the payment of salary (another local act of the organization, which indicates the dates of issue of the salary and which is referenced in the employment contract).

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

An employee fell ill on the day of dismissal

We have a difficult situation in our company. The employee quits. The order was signed on the eve of his last day of work. And on the day of dismissal, the employee brought sick leave. The question arose: could he be fired? And if possible, then what about paying for sick leave? How many days do we have to pay: one - the day of dismissal, or three days - in accordance with the latest changes to the Benefits Law?

It is not surprising that you have doubts about the right to dismiss an employee during the period of his temporary disability, because the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) does not provide the only solution to this situation.

Dismissal on sick leave

If an employee is on temporary leave due to disability, the employer does not have the right to begin the dismissal process on the day of 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, employees abuse this situation.

Sometimes dismissing an employee on his own initiative is an excellent way to avoid conflict when terminating an employment contract.

An employee going on sick leave on the day of dismissal

If an employee falls ill on the day of dismissal, then benefits are paid to him in the general manner. It is impossible to dismiss an employee during illness (Article 81 of the Labor Code). But there are situations when an employee does not show up at work for a long time and does not make himself known. He is fired for absenteeism, but he returns and presents a sick leave certificate confirming the entire time of absence. If an employee goes to 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 resigned.

Sick leave fell on the date of dismissal

How to pay for sick leave if it is open before the day of dismissal? In such a situation, does the dismissal date shift? The answers to these questions are in the article.
To answer these questions, let's turn to the rules of law.

What 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 no later than two weeks before dismissal. The period of 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, 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 mandatory two-week work. Consequently, during the period after submitting the application, the employee may work, be sick, be on vacation, or on a business trip.
In this case, the employee being on sick leave is not an obstacle to terminating the employment contract. Let's explain why.
The ban on dismissing 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 dismissal of employees at 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;
— the employee’s inadequacy for the position held or the work performed;
— change of owner of the organization’s property;
- one-time gross violation of labor duties by an employee.

Note. An employee has the right to stop working upon expiration of the notice period for dismissal (Part 5 of Article 80 of the Labor Code of the Russian Federation).

Dismissal of an employee at his own request does not apply to such grounds. Consequently, the employer, despite the employee’s incapacity for work, is obliged to dismiss him upon expiration of the two-week warning period.
The current legislation does not provide for the suspension of the two-week warning period for the period of illness.

Note. Explanation of Rostrud specialists
If during the two-week notice of dismissal the employee was unable to work, the period of notice of dismissal is not extended by the number of days of illness (letter of Rostrud dated 09/05/2006 N 1551-6).

In this situation, the day of dismissal falls on April 15. It is on this date that the employer’s order to terminate the employment contract with the employee must be issued, a work book must be issued and all payments due to the dismissed person must be made, including compensation for unused vacation (Part 4 of Article 84.1, Article 140 and Part 1 of Art. 127 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 request for payment (Part 1 of Article 140 of the Labor Code of the Russian Federation).

Note. The resignation letter can be withdrawn
Before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out 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 an employment contract (Part 4, Article 80 of the Labor Code of the Russian Federation, sub. “ c" clause 22 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

If the day of dismissal falls on a weekend

As a general rule, regardless of the grounds for dismissal, the day of termination of the employment contract is the employee’s last day of work, and not a day off (Article 84.1 of the Labor Code of the Russian Federation).
Which 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 dismissal period falls on a weekend, the end date of this period will be the next working day following the weekend.
For example, the 14th day of 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 the employee is on sick leave on the day of dismissal, the employer does not have the opportunity to familiarize him with the order against signature and give him a work book.
In this situation, the employer must:
- on the order (instruction) to terminate the employment contract, make a note about the impossibility of bringing it to the attention of the employee due to the latter’s absence;
— send the employee a notice of the need to appear for a work book or agree to have it sent by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book.

How to pay sick leave for a dismissed employee

Now let's talk about how to pay sick leave to a resigning employee.
In the situation under consideration, the disability occurred during the period of validity of the employment contract, which means that the benefit must be paid for the entire period of illness until the day of restoration of working capacity, including for the days after the date of dismissal (Part 1, 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 maternity”, hereinafter referred to as Law No. 255-FZ).
Payment of temporary disability benefits must be made taking into account the employee’s insurance record available on the date of the insured event, that is, in the amount (Part 1, Article 7 of Law No. 255-FZ):
- 100% of average earnings - if the insurance period is 8 years or more;
— 80% of average earnings — from 5 to 8 years;
— 60% of average earnings — less than 5 years.
Deadline for assignment and payment of benefits. The employer must (Part 1, Article 15 of Law No. 255-FZ):
— assign temporary disability benefits within 10 calendar days from the date the employee applies for it with the necessary documents;
- pay the benefit on the next day after its appointment, established for the payment of wages.
If by the time of dismissal the employee does not submit a certificate of incapacity for work, the employer will make a settlement upon dismissal with this employee without taking into account 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 that is established by the employer for the payment of wages.

got sick on the day of dismissal

Sick leave after dismissal

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

Lots of information on paying for sick people during service, before leaving. What is the correct way to pay sick leave within a month from the date of dismissal? After leaving the police department on November 30, 2010, I was from 2 to 21.

If an employee falls ill after dismissal, the employer is obliged to pay sick leave.

The former employee, by registered mail, sent the former management a sick leave note, opened the day after his dismissal, demanding payment. Moreover, five months have passed since the date of dismissal.

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

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

Citizens who become ill or injured within 30 calendar days can apply for benefits from their employer at their last place of work or directly from the territorial office of the Social Insurance Fund. The basis is paragraph 2 of Article 13 of the Federal Law of December 29, 2006 255-FZ (hereinafter referred to as Law 255-FZ).

certificate of incapacity for work. Payment for sick leave will be made if the illness or injury occurs within 30 calendar days after dismissal;

Got sick on the day of dismissal

“Question: The 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 (he 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 work of the employee, with the exception of cases when the employee did not actually work, but retained his place of work.

Protecting your Rights is our job! Legal consultation.

It happens that due to family circumstances I am late for work. Every time I write an explanation to my boss and hope for his understanding. And recently I was late and got fired. I have sick leave for this day. What number should appear in the work book as the day of dismissal? Will sick leave be paid?

■ Yes, you are required to pay sick leave. They pay according to the bulletin even in cases where the illness or injury occurred within 30 calendar days from the date of dismissal.

What date should an employee be dismissed if he was on sick leave?

The dismissal of an employee must always be carried out according to 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. Let's consider what date 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 a given case.

ConsultantPlus: Forums

Question: Can an employee apply for resignation of his own free will while on sick leave, and can he be fired during this period?

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

The Labor Code of the Russian Federation does not contain any obstacles to filing a resignation letter 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 the Labor Code, Article 81 of which states that employers must not dismiss employees during periods of temporary incapacity. The only exceptions are cases of liquidation of an enterprise or when this occurs at its own request. Therefore, when deciding the issue of an employee, even during illness, they proceed, first of all, from the one on whose initiative it occurs.

Is it possible to fire an employee who was sick on the day of his layoff?

The employee is given two months' notice of layoffs. But on the eve of the layoff, he fell ill. Is it possible to fire him during illness? After all, the notice period for layoffs has come to an end? Let's look into this situation.

Conflicts with employees must not only be 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 an employment contract at the initiative of the employer. What to do? Should I pay benefits or is the employee considered to have resigned? What can be done to prevent such cases?

So, an unusual situation has arisen in your company. The employee is fired 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, due to a reduction in staff or numbers, or for other reasons, say, under Art. 278 of the Labor Code of the Russian Federation (additional grounds for termination of an employment contract with the head of an organization). The procedure for terminating the contract was followed, the employee was familiarized with the dismissal order, he was given a work book with a record of dismissal, and payment was made. And the next day, or a week later, or, perhaps, already in court, the employee presents the employer with a sick leave certificate, opened precisely on the day of dismissal, with a demand to cancel the order of his dismissal.

The question arises, what to do in this situation? Should we satisfy the employee’s request and cancel the dismissal order, continuing the employment relationship with him, or leave everything as is, waiting for the conflict to develop? Formally, the date of dismissal at the initiative of the employer and the date of opening the certificate of incapacity for work coincide. It would seem that there are grounds to apply Part 6 of Art. 81 of the Labor Code of the Russian Federation, which contains a ban on the dismissal of an employee during the period of his temporary disability, and cancel the controversial order.

But in judicial practice over the past few years a concept has emerged inadmissibility of abuse of rights by an 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 resolution of the Plenum of the Supreme Court of the 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 referred to as the resolution of the Plenum of the Supreme Court of the Russian Federation No. 2): dishonest actions of an employee to conceal temporary disability in day of dismissal.

Despite the fact that labor legislation does not establish an employee’s obligation to notify the employer about the opening of sick leave, deliberate 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 such a situation, the employer needs to find out whether it was an abuse of right when the employee deliberately took sick leave, or whether he became incapacitated for reasons beyond his control. Let's take a closer look at them.

Situation one: the employee “got sick” intentionally

The employee, knowing about his upcoming dismissal “under the article,” prudently provided himself with sick leave on the day of the upcoming dismissal before completing the dismissal procedure. Let's say, just before the start of the working day, I visited a doctor and drew up a certificate of incapacity for work, and at the time of signing the dismissal order and receiving the work book, I already had a certificate of incapacity for work opened that day. In this case, there is dishonesty of the employee, i.e. the same “abuse of law” that the Plenum of the RF Armed Forces speaks about in Resolution No. 2.

The above example differs slightly from the substance of those cases that have been regularly considered by the courts since 2004. See, for example, the following judicial acts: rulings of the Moscow Regional Court dated January 12, 2012 in case No. 33-601/2012, 33-29485/2011, Moscow City Court dated June 3, 2011 in case No. 4g/6-4333, dated November 24 .2010 in case No. 4g/1-10400, St. Petersburg City Court dated September 23, 2010 No. 13190. The only difference is that in the listed judicial acts the employee has already had a certificate of incapacity for work for some time (sometimes quite a long time) at the time of dismissal. 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 dishonesty of the employee, abuse of his right not to be fired during the period of incapacity.

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

1. IN on the day of dismissal, the employee does not present a sick leave certificate or a copy thereof. Perhaps, for some reason, the employee does not have a sick leave certificate or a copy of it with him at the time of dismissal.
2. Worker does not communicate orally, 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.
   Let us note that the regulations do not indicate which representative of the employer should be informed about the presence of a certificate of incapacity for work. The court makes its conclusions based on specific circumstances.

   Arbitrage practice

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   The cassation ruling of the Investigative Committee for civil cases of the Moscow City Court dated July 22, 2010 No. 33-22024/10 states that the plaintiff informed the personnel service employees and the secretary of the general director about her sick leave. The defendant tried to refute this argument by arguing that the employee did not report her “sick leave” to the general director personally. However, the court did not take this argument into account, considering the message about the certificate of incapacity for work to the personnel service and the director’s secretary as proper notification to the employer about his sick leave. Moreover, from the circumstances of the case, the court saw that the general director avoided communicating with the plaintiff. This conclusion of the court about the absence of abuse of rights on the part of the plaintiff seems logical and sufficiently justified.

   
   It should also be noted that the employer may become aware of the employee’s opening of sick leave not only due to the actions of the employee himself. In this case, regardless of whether the employee reported his temporary disability or this became known in some other way, it can no longer be said that the employer was unaware of the sick leave.

   Arbitrage practice

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   This situation is illustrated by the ruling of the Leningrad Regional Court dated March 30, 2011 No. 33-1566/2011. In the case, we are talking about the fact that the plaintiff’s immediate supervisor reported her disability in a memo addressed to the general director of the enterprise. Thus, evidence of the employer’s awareness of the plaintiff’s open sick leave is the mention of it in this document. The trial court denied the plaintiff's claims because there was no evidence that she had self-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 any abuse of rights on the part of the employee.

   
   Another decision considered an interesting situation when on the day of dismissal the plaintiff was incapacitated, but neither the employee nor the employer knew about the issue of sick leave.

   Arbitrage practice

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   The plaintiff was fired on December 22, 2008, but a certificate of incapacity for work was issued to her the next day after her dismissal, December 23, 2008, but from December 20, 2008, due to the fact that on 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 employee’s temporary disability, and therefore did not accept the plaintiff’s argument about dismissal during illness. However, it should be noted that the court does not mention the abuse of rights on the part of the plaintiff (decision of the Zheleznodorozhny District Court of Ulyanovsk dated March 23, 2009).

3. The employee submits a “sick leave” after the employment relationship with him is terminated, or he “publishes” it only in court, while insisting on the illegality of his dismissal during the period of incapacity. If these circumstances exist, the employee’s actions can be considered an abuse of right.
   In such situations (if the employee makes a demand directly to the employer or in court to reinstate him at work, as well as related demands (for payment of forced absence, compensation for moral damage, etc.) and there are no violations in the dismissal procedure), the employer has every right to refuse the employee satisfying his requirements.
   When considering a case in court, taking into account the current practice, the truth will be on the side of the employer, who should not suffer due to 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 dishonesty of the employee’s actions and the fact that he abused his right not to be fired during sick leave (clause 23 of 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 a period of incapacity for work is an independent basis for his reinstatement, 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 rights by an employee.

Thus, it is necessary to collect and evaluate in advance the evidence base on the circumstances listed above, which will confirm the dishonesty of the employee’s actions. When refusing to satisfy the employee’s demands to cancel the dismissal order, you must be sure that you will be able to prove the employee’s dishonesty if he goes to court and/or the labor inspectorate.

Situation two: sick leave is received after all documents have been completed

Let's consider a more complex and interesting situation: an employee, having gone through the dismissal procedure, received a work book, leaves his place of work. And either immediately or at the end of the working day, he goes to a medical institution and opens a sick leave sheet on the same day. Accordingly, he subsequently informs the employer about his certificate of incapacity for work with a request to cancel the order of dismissal during the period of incapacity for work. In this situation, it is more difficult to talk about the employee’s dishonesty. Some may actually need medical attention due to the stress of being laid off by their employer.

Arbitrage practice

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The ruling of the St. Petersburg City Court dated August 11, 2011 No. 33-12339 considered a situation where an employee tried to challenge the dismissal due to the fact that in the evening of the same day she was hospitalized due to deteriorating health. The court refused to satisfy the plaintiff’s demands, citing the fact that the “sick leave” was opened after the end of the working day, during the dismissal procedure she was able to work, and there were no violations in the dismissal procedure itself. The court regarded the plaintiff’s application to dismiss her during the period of incapacity as an abuse of right on the part of 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 by the regional courts of civil cases in 2006, based on cassation and supervisory data, a case is analyzed when an employee was given a dismissal order at 16.30, the working day ended at 17.00, and at 17.55 the employee applied for sick leave. The district court satisfied the plaintiff’s demands, citing only the fact that the employee was fired during a period of incapacity. But the Kemerovo Regional Court overturned the district court’s decision, noting that the court should have examined the circumstances of issuing the certificate of incapacity for work and established 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? This is often what happens in companies. Therefore, the employee manages to receive 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 the employment relationship in this case is the moment the employee is given the dismissal order and work book, and not the moment the working day ends.

From now on, the employer has no obligation to maintain the employee’s position during the period of incapacity. And the employee, accordingly, has no guarantee of maintaining his job during the period of incapacity.

1. What can an employer do to protect itself as much as possible in the event of such “surprises” on the part of a dismissed employee? We propose the following measures:
2. The dismissal procedure must be carried out in the presence of witnesses, even if the employee does not refuse to receive documents and indicate the time of their receipt. Witnesses will subsequently be able to confirm the time of delivery of the dismissal documents to the employee, and the fact that during the dismissal procedure he did not present a certificate of incapacity for work, did not report his “sick leave”, and did not show critical signs of poor health;
3. after the employee presents a sick leave certificate, it is necessary to make a request to the medical institution that issued it. The request must require information about the time the employee was seen by the doctor and the time the sick leave was issued. If the case goes to court, you can petition to call as a witness the doctor who opened the certificate of incapacity for work;
4. Labor legislation does not establish a direct obligation for an employee to notify the employer about the opening of sick leave. However, from an analysis of the norms of the Labor Code of the Russian Federation, it follows that compliance with employee guarantees during a period of temporary incapacity (payment of sick leave, preservation of a job) depends on whether the employer is aware of the “sick leave”. Accordingly, a more “general” preventive measure would be to include in local regulations (for example, Internal Labor Regulations) and in job descriptions of employees the obligation to notify the employer about open sick leave directly on the opening day. This obligation will not contradict the norms of labor legislation, since it is aimed at maintaining labor discipline, because the employer must, among other things, draw up time sheets and record the employee’s sick days on them. And for the employee himself, this obligation is useful in that its fulfillment ensures the timely and complete provision of guarantees provided for by the Labor Code of the Russian Federation.

Footnotes

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The dismissal of an employee must always be carried out according to 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. Let's consider what date 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 a given case. At the same time, there are cases established by law when the dismissal of an employee who is on sick leave is not allowed at all. Accordingly, the last day of sick leave cannot be considered a working day, so if you want to fire an employee, sometimes you need to wait for him to return from sick leave.

Is it possible to fire an employee on the day the sick leave ends?

In order to understand when it is permissible to dismiss an employee if he is on sick leave, let us turn to the norms of the Labor Code. Its norms allow an employee to write a letter of resignation at his own request and during the period of his temporary incapacity for work (sick leave), and at the same time, an employee may, after writing a letter, suddenly become ill. Since Article 80 obliges the employee to notify the company of his dismissal two weeks before the expected date, then, accordingly, by indicating in the application the specific date from which the employee asks to dismiss him, he has the right to be either on vacation or on sick leave during this period.

Therefore, regardless of the reasons for the employee’s excused absence from the workplace on the day of his dismissal, the management is simply obliged to issue an order to such an employee and dismiss him on the date indicated in the application, signed by the manager, and agreed upon. It is illegal to delay the dismissal of an employee in this case, unless, of course, he withdrew his application before going on sick leave, or while on sick leave. The same position is taken by the Federal Service for Labor and Employment in its clarification dated September 5, 2006 No. 1551-6. The employer has no right to demand that an employee “work out” up to the two weeks he was ill before dismissal.

Dismissal on the last day of sick leave is also permitted if there is an agreement between the parties, according to which the dismissal of the employee is planned for a certain date, and is established in a document signed by the parties. Such an agreement can be drawn up separately from the employment contract, or it can be a written addition to it. In any case, it is important that there is a written expression of the parties’ desire to terminate the employment contract. After all, there is no other way to prove that the employee was fired precisely by agreement with the employer. If there is such an agreement between the parties, then an employee can be fired both while he is on sick leave and on the last day of sick leave.

Fired, can't be left

Employers often make the same mistake. They do not issue an order to dismiss an employee if he has not yet completed his sick leave. Perhaps this is the employer’s desire to be safe in case the employee suddenly changes his mind about quitting. But, on the other hand, a delay in the timing of dismissal may also violate the rights of the employee himself. After all, perhaps, after his recovery, he should already start a new place of work. In this case, neither the calculation, nor the payments, nor the issuance of the work book can be delayed.

That is, if the reason for dismissal is the desire of the employee himself, or the liquidation of the enterprise, or an agreement of the parties, the law allows the dismissal of an employee on the last day of his sick leave, as in other matters, and on another day established by the employee, employer or law.

Another case when the law allows an employer to dismiss an employee on the last day of his sick leave is if the enterprise is liquidated (without legal succession) or an individual entrepreneur ceases his activities. But in this case, the entire procedure must be followed to the letter of the law. The employee must be informed (on receipt) that he is leaving due to the termination of his employer’s activities, and at least two months in advance. It is not worth reminding that the employer must pay such an employee not only vacation pay, sick leave, but also severance pay. In addition, the employee retains labor guarantees for some time.

It turns out that if an employee is notified in advance, in writing, he can be fired both on sick leave and on the day of leaving sick leave. Dismissal occurs on a date that corresponds to a two-month period (this minimum is established) from the date of written notification to the employee.

Can the last day of sick leave be the day of dismissal?

To summarize, we can identify several reasons why an employee’s dismissal can occur both on sick leave and on the day the sick leave ends:

1. if the employee resigns of his own free will;
2. if the employee resigns by agreement with the employer;
3. if an employee is dismissed by the employer due to the upcoming liquidation of the enterprise (Article 180 of the Labor Code);
4. if a fixed-term employment contract has ended without a condition for its extension.

Thus, the ban on dismissal of an employee is established by law only at the initiative of the enterprise, if this is not related to the liquidation of the company. Thus, an employee cannot be fired under an article, or for any other reason that the law and judicial practice interpret as an initiative of the employer, until the employee is completely off sick leave. But already on the first working day after his return from sick leave, you can issue a dismissal order, carry out all the calculations with him, and also issue a work certificate. Accordingly, if this procedure is not followed, the employee has the right to demand his reinstatement and recognition of such dismissal as illegal through the court. And illegal dismissal entails not only payment of material and moral damage to the employee himself, but also administrative sanctions.

The Labor Code (LC) of the Russian Federation is a set of laws designed to protect the rights of working citizens. Dismissal is one of the inevitable aspects of working life. The Labor Code of the Russian Federation clearly regulates situations in which an employer is allowed to fire its employees. Let's consider an important point: is it possible to quit while on sick leave on your own initiative, and can the employer do this?

In addition to the interests of the employee himself, who wants to maintain his working position and not be subject to disciplinary action, registration of sick leave also affects the financial performance of the organization. Let's find out.

Legal options for dismissal on sick leave

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

In this case, the employer will be obliged to reinstate the employee at his previous place of work and pay him wages for the period of forced absences.

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

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

Dismissal at one's own request is initiated by the employee himself, therefore, even while he is on sick leave, dismissal occurs on a general basis.

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

Nuances of the dismissal procedure during sick leave

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

Additional Information

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

• If the termination of the employment contract is initiated by the employer during the employee’s ability to work, then if the employee falls ill before the appointed date of dismissal, including on the last day of work, the dismissal procedure is suspended and resumed only when the citizen recovers and returns to the workplace.
• If an employee quits of his own free will and falls ill during the 2-week period of work, then the work in this case is not extended or postponed. This rule is also valid if an employee, while on sick leave, submits a resignation letter. Thus, in fact, working off does not occur or occurs only partially if the employee manages to recover before the end of its term.
  In addition, you can quit without working in the following cases:
  • when moving for permanent residence to another locality,
  • when a spouse is transferred to work in another area,
  • during pregnancy,
  • if it is impossible to live in this region for medical reasons,
  • if you need to care for a child or other family member,
  • upon retirement, etc.
• If an employee, having written a letter of resignation of his own free will, does not go to work on the day of dismissal due to illness, then the dismissal is still made.
• If an employee returns to work after illness before the dismissal date, he must work out the remaining working days.
• The calculation of payment for sick leave when it is opened before the date of dismissal and after it differs significantly. If the employee falls ill before the termination of the employment contract, then the amount of payment under the certificate of incapacity for work depends on the insurance period and the average salary of the employee for the previous 2 years. When sick leave begins after the date of dismissal, but no more than 30 days later, the calculation of the payment amount does not depend on the length of insurance. You can read more about this on our Internet portal.

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

Submitting a resignation letter

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

The application must contain the following points:

• last name, first name, patronymic and position of the resigning employee;
• name of the organization in which the employee works;
• the wording “At your own request”;
• the date from which the citizen plans not to go to work;
• date of document preparation;
• personal signature of the employee.

It is important to know that if an employee is on sick leave, he also has the right to withdraw his resignation even on the last day of the employment contract with the company. And if at that time a new employee had not been hired by the company, then after the permanent employee leaves the sick leave, the employer must continue to work with him.

Dismissal at will during sick leave

The voluntary dismissal process begins with the employee submitting a resignation letter to the employer. This must happen at least 14 calendar days before the expected date of termination of the employment contract. After submitting the application to the employee responsible for personnel matters, a 2-week period begins, otherwise called working off. The term “working out” does not appear in the Labor Code of the Russian Federation. 2 weeks is only the period during which the employer must find a replacement for the resigning employee.

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

Then the personnel employee (accountant, employer) makes an entry in the employee’s work book about dismissal at his own request, indicating Article 80 of the Labor Code of the Russian Federation and hands over the work record. After which the citizen is given a payslip indicating the payments due to him. The final stage is receiving the calculation from the accounting department.

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