Sick leave for a resigned employee. The sick leave fell on the date of dismissal. Sick leave is open after the date of dismissal of the employee

The employee’s right to terminate the employment contract with the employer at his own request is secured by the provisions of Article 80 of the Labor Code.

To exercise this right, the employee must notify the employer in writing of his desire to resign no later than two weeks*.

*The specified period begins the next day after the employer receives the employee’s resignation letter.

By agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal.

In cases where an employee’s application for dismissal on his initiative is due to the impossibility of continuing his work (enrollment in an 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 on time specified in the employee’s application.

At the same time, 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 current legislation, cannot be denied an employment contract.

Upon expiration of the notice period for dismissal, the employee has the right to stop working. On the last day of work, the employer is obliged to issue the employee a work book and other documents related to the work, upon the employee’s written application, and make a final payment to him.

If, upon expiration of the notice period for 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 with temporary working capacity 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 the event of temporary disability, the employer pays the employee temporary disability benefits in accordance with federal laws.

The amount of temporary disability benefits 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 maternity”*:

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

and also determines the conditions, amounts and procedure for providing benefits for temporary disability, pregnancy and childbirth, and monthly child care benefits for citizens subject to compulsory social insurance.

*Law No. 255-FZ does not apply to relations related to the provision of temporary disability benefits to citizens due to an industrial accident or occupational disease.

In the article we will look at the features of calculating benefits when an employee is dismissed while on sick leave, as well as cases when an employee brings sick leave that was opened after dismissal.

Sick leave is open until termination of employment

An employee who resigns voluntarily notifies the employer 2 weeks before the date of intended dismissal. At this time, he can work, be on vacation, or on sick leave - absence from the workplace does not in any way affect the employee’s right to dismissal at his own request.

At the same time, even if the employee is at work, it is quite possible that during two weeks of “working” he may get sick and not recover by his last working day.

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

Based on the provisions of Article 81 of the Labor Code of the Russian Federation, it is not allowed to dismiss an employee during the period of his temporary disability at the initiative of the employer. However, if an employee resigns of his own free will, this provision of the Labor Code of the Russian Federation does not apply, since the employer has a letter of resignation from the employee.

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

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

An employee can notify the employer of dismissal not only during the period of work, but also while on vacation and during a period of temporary disability. In this case, the date of the proposed dismissal may also fall within the specified periods.

The Labor Code 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. Thus, the employee can send a corresponding application to the employer, 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 temporary disability and while on vacation is not allowed, applies only to cases of dismissal at the initiative of the employer.”

Accordingly, an accountant often has a question about how to calculate sick leave, which begins during 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 appointment and payment of benefits for temporary disability are carried out by the policyholder at the place of work (service, other activity) of the insured person.

If the insured event occurred during the term of the employment contract, the benefit must be calculated and paid for the period from the start of sick leave to the day the certificate of incapacity for work is closed in the same amounts as if the employee continued to work.

Accordingly, the benefit is paid for the period from the beginning of the sick leave to the day it ends, inclusive.

The basis for the appointment and payment of such benefits is a correctly executed certificate of incapacity for work (Part 5, Article 13 of Law No. 255-FZ).

Not only the temporary disability of the employee himself, but also sick leave for child care is paid in full.

According to paragraph 40 of the Order of the Ministry of Health and Social Development of Russia dated June 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 of age during inpatient treatment;
for chronic patients during 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.

Based on clause 41 of the Procedure, if a child falls ill during a period when the mother (another family member actually caring for the child) does not need to be released from work (annual paid leave, maternity leave, parental leave until reaching they are 3 years old, leave without pay), a certificate of incapacity for work to care for the child (in the case when he continues to need care) is issued from the day when the mother (another family member actually caring for the child) should begin to work.

Let us recall that according to 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 reasons and after-care in sanatorium-resort organizations immediately after medical treatment assistance in inpatient conditions is paid in the following amount:

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

Sick leave is open after the date of dismissal of the employee

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

loss of ability to work due to illness or injury, including in connection with an operation for artificial termination of pregnancy or in vitro fertilization (hereinafter referred to as illness or injury);
the need to care for a sick family member;
quarantine of the insured person, as well as quarantine of a child under 7 years of age attending a preschool educational organization, or another family member recognized as legally incompetent in accordance with the established procedure;
implementation of prosthetics for medical reasons in a hospital 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 an inpatient setting.

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

during the period of work under an employment contract,
carrying out official or other activities,

during which they are subject to compulsory social insurance in case of temporary disability and in connection with maternity, as well as in cases where 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.

Accordingly, an employee who is no longer working in the organization and falls ill within 30 calendar days from the date of termination of the employment contract has every right to present sick leave to his former employer, 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 disability is important - the considered norm, clause 2, 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 dismissal an employee brings, for example, sick leave to care for a child, temporary disability benefits on this basis are not assigned or paid to him.

According to clause 1 of Article 6 of Law No. 255-FZ, temporary disability benefits in case of loss of ability to work due to illness or injury are paid to the insured person for the entire period of temporary disability until the day of restoration of working capacity (establishment of disability)*.

*Except for the cases specified in parts 3 and 4 of Article 6 of Law No. 255-FZ.

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

for the first three days of temporary disability - at the expense of the policyholder,
and for the remaining period (starting from the 4th day of temporary disability) - at the expense of the Social Insurance Fund budget.

In accordance with clause 1 of Article 12 of Law No. 255-FZ, temporary disability benefits are assigned if the application is followed by no later than six months from the date of restoration of working capacity (establishment of disability), as well as the end of the period of release from work in cases of caring for a sick family member, quarantine, prosthetics and after-care.

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

force majeure, that is, extraordinary, unpreventable circumstances (earthquake, hurricane, flood, fire, etc.);
long-term temporary disability of the insured person due to illness or injury lasting more than six months;
moving to a place of residence in another locality, change of place of residence;
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 court).

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

In cases where the insured ceases to operate on the day the insured person applies for benefits, or if it is impossible for the insured to pay it due to insufficient funds in his current account, the insured person applies for payment of benefits to territorial body of the insurer.

Let us remind you that for insured persons working for several employers, temporary disability benefits are assigned 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 the event 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 assignment of temporary disability benefits for part-time workers.

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

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

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

In accordance with clause 1 of Article 15 of Law No. 255-FZ, the insurer assigns temporary disability benefits within 10 calendar days from the date the insured person applies for it with the necessary documents.

Payment of benefits is carried out by the policyholder on the day closest to the date of payment of wages after the appointment of benefits.

This means that the dismissed employee will also need to be paid benefits within the above deadlines.

Dismissal of an employee during a period of temporary incapacity at the initiative of the employer is illegal. An exception is the case of voluntary dismissal or liquidation of the enterprise.

If an employee is sick, he cannot be dismissed during sick leave at the initiative of the company. This provision is enshrined in the norm of Article 81 of the Labor Code, the last paragraph of which says: “The dismissal of an employee at the initiative of the employer (except in the case of liquidation of the organization or termination of activities by an individual entrepreneur) is not allowed during the period of his temporary disability and while on vacation.” Thus, only the termination of the employer’s activities can become a legal basis for the dismissal of an employee during his illness at the initiative of the employer.

Therefore, in order to answer the question: “can they be fired on sick leave,” it is necessary to determine from whom the initiative for dismissal comes. In the practical activities of many companies, a situation often arises when an employee submits a resignation letter on his own initiative, but during the two-week notice of dismissal period provided by law, he unexpectedly falls ill and goes on sick leave. In such cases, the question becomes more relevant: will it be legal to dismiss an employee during the period of his temporary disability or not?

On your own initiative - dismissal without obstacles

If an employee submits an application in which he expresses a desire to terminate the employment relationship, then his dismissal during sick leave is possible, since the employment contract is terminated at the initiative of the employee, not the employer. A similar solution to the problem also applies to the termination of an employment contract by agreement of the parties. However, if the dismissal initiative comes from the employer and the employee falls ill on the day when the dismissal was planned, it can only be carried out after his recovery, since in such a situation the dismissal of an employee on sick leave is illegal. After the employee leaves sick leave, the employer is initially obliged to fill out a temporary disability certificate and only after that begin the dismissal procedure in accordance with the procedure established by law, that is:

document the reason for dismissal;
issue a dismissal order;
make a settlement with the employee;
issue a work book on the last day of work.

However, there are situations when the employer demands the employee to work before dismissal for a period equal to the time during which he was on sick leave. There is an explanation from the Federal Service for Labor and Employment on this matter. The letter explains that the employee has the right to warn the employer about the upcoming dismissal, both during the period of work and while he is on vacation or during illness. The day of dismissal may also fall on any of the specified periods, including possible dismissal on the last day of sick leave. Therefore, if the notice period for dismissal is 14 days, the employer must dismiss on the day indicated in the resignation letter.

What to do in case of prolonged illness of an employee

In practice, a situation may arise when an employee submitted a letter of resignation on his own initiative, but fell ill during the two-week notice period for dismissal. If he returns from sick leave before the expected day of dismissal, no problems will arise and the dismissal will be carried out on the day specified in the application. But the situation can develop in a different way, when a person does not have time to recover before the end of the specified two weeks. In such circumstances, the dismissal of an employee on sick leave is carried out on the date indicated in the application, since the employer does not have the right to change it without the consent of the employee. In this case, sick leave is paid after restoration of working capacity.

According to the law, when dismissing an employee, the employer must make a settlement with him and issue a work book on the last day of work requested. Thus, in a situation where an employee fell ill after submitting a resignation letter, but did not withdraw it, the organization must pay him on the day specified in the application. If, on the due date, the employee does not come to receive the work book and wages, he must be notified in writing of the need to appear for the work book or give permission to send it by mail. After sending the notice, you must wait for the employee to recover and dismiss him officially, making a payment and issuing documents. At the same time, the accountant needs to know whether it is necessary to pay for sick leave closed after the employee’s dismissal.

Payment of sick leave

If at the time of opening the sick leave, the person was officially an employee of the organization, then his payment should be made in the general manner, even if the closure of the sick leave occurs during the period when the employment relationship with the employee has already been terminated. Another important point is that by law the employer is obliged to pay sick leave to a dismissed employee for a certain period of time. A former employee has the right to pay for sick leave if it was issued within 30 calendar days after termination of the employment contract. However, in this case, he can only count on receiving 60 percent of average earnings.

Therefore, if a resigned employee after some time provides sick leave, opened within a 30-day period from the date of dismissal, the organization cannot refuse to pay for it. An employee has the right to present sick leave within six months from the date of recovery. Accordingly, even if the employee fell ill a week after dismissal, and months later came to receive benefits, the company will be required to make payment if the six-month period provided by law has not expired. To avoid violations of the law, every company should know how to behave in such situations, despite the fact that this happens quite rarely.

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 it 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): unfair 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 “disclose” it 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 issued a certificate of incapacity for work, and while 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:

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.
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 specify 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 examined an interesting situation when on the day of dismissal the plaintiff was incapacitated for work, 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 attention. 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).
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 the evidence base in advance 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 of 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.

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:

on the day of termination of the employment contract, the dismissal procedure must be recorded time by time. That is, the employee must indicate the exact time of familiarization with the dismissal order, the time of receiving it in hand, the time of receiving the work book, and the payment (if it is issued at the cash desk). If an 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 in 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 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;
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 when 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;
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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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 during the period of temporary disability and while on vacation is not allowed.” An exception is made only for the situation when the employing organization is liquidated (an individual entrepreneur ceases his activities).

Therefore, when dismissing an employee during illness, the main thing is to determine who exactly initiated the dismissal.

In practice, the following situation often occurs: an employee submits a resignation letter of his own free will and undertakes to work for, say, two weeks, but during this period he suddenly falls ill and takes sick leave. The main question that arises is: is it possible to fire him while he is on sick leave or is it necessary to wait for his recovery? It is reviewed on the pages of the journal “Actual Accounting” No. 8, 2012.

At your own request any day

In a situation where a letter of resignation is written at one's own request, the initiative to terminate the employment contract comes not from the employer, but from the employee himself. Therefore, his dismissal while on sick leave is possible. This also includes such a development of events when the termination of an employment contract occurs by agreement of the parties.

If the dismissal occurs at the initiative of the employer, and the employee falls ill on the day of the planned dismissal, then you will have to wait for him to return from sick leave.

When an employee leaves after illness, the employer fills out a sick leave certificate and only then carries out the dismissal procedure according to the established procedure (depending on the reason for dismissal), that is, draws up a justification for dismissal, issues a dismissal order based on the documents, makes a settlement with the employee and on the last day works gives him a work book.

But sometimes you may encounter a situation where the employer requires the employee to increase the period of work before dismissal by a period equal to the duration of the illness.

Explanations regarding this situation are given in the letter of the Federal Service for Labor and Employment (letter of Rostrud dated 09/05/2006 No. 1551-6). It states that a person can notify the employer about dismissal not only during the period of work, but also while on vacation or during a period of temporary disability. In this case, the date of dismissal may also fall within the specified periods.

Thus, if an employee notified the employer of his dismissal 14 days before, then the latter is obliged to dismiss him on the day specified in the resignation letter.

If the employee continues to be sick

So, let’s say an employee wrote a letter of resignation of his own free will, as required by law, two weeks before the desired date of dismissal. But the trouble is, a week passed and he got sick. What possible options for the development of the situation?

Option one, the simplest: the employee has time to recover before the date of dismissal. Everything is simple here: the person is fired according to his application.

Option two: the sick leave extended beyond the seven days remaining before dismissal. In this case, the employee is fired on the day specified in the resignation letter. After all, it is impossible to change the date of dismissal recorded in the application without the consent of the employee. In such cases, the employment contract is terminated on a previously determined date, and sick leave opened during the period of validity of the employment contract is paid upon the end of temporary disability.

The law obliges the employer to dismiss an employee, pay him money and issue a work book on the last working day specified in the resignation letter. Accordingly, if a person fell ill after submitting a resignation letter and did not officially withdraw his application, then he must be given all the money and documents on the date that the employee indicated in the application. If on the day of dismissal a person does not come for a work book and pay, it is necessary to send him a written notification that he must appear for a work book or agree to send it by mail (Article 84.1 of the Labor Code of the Russian Federation).

After sending such a notice, all that remains is to wait for the employee to return from sick leave and formalize his dismissal by issuing all the documents and money. At the same time, the accountant may have a question: should the company pay the employee for sick leave, which is closed after the date of his dismissal?

How is sick leave paid?

If sick leave was opened for a still working employee, then it is paid on a general basis, even despite the fact that by the time it was closed the employee no longer had an employment relationship with the employer (Part 1, Article 6 of the Federal Law of December 29, 2006 No. 255- Federal Law (hereinafter referred to as Law No. 255-FZ)).

In addition, do not forget that by dismissing an employee, the company does not get rid of the need to pay him sick leave benefits for a certain period of time. The organization is obliged to pay for the sick leave issued to the former employee within 30 calendar days after his dismissal. True, in this case it is paid in the amount of 60 percent of average earnings (Part 2 of Article 5, Part 2 of Article 7 of Law No. 255-FZ).

In other words, if an employee quits and after some time brings sick leave, the start date of which does not exceed 30 calendar days after the date of dismissal, the employer is obliged to pay for this sick leave.

The deadline for submitting claims for sick leave is six months from the date of restoration of working capacity (Part 1, Article 12 of Law No. 255-FZ). For example, if a dismissed employee fell ill a week later and came back six months later to receive disability benefits, the company will have to pay if the deadlines are not missed. And although in practice such situations are extremely rare, it is necessary to know about them in order not to break the law.

Tatyana Kudashova - HR administration expert at the BDO outsourcing division

The article talks about if an employee wrote a letter of resignation and fell ill, when to fire, and explains other subtleties of the law.

The entire range of labor relations is regulated by the Labor Code. If a person starts to get sick and takes sick leave, then you cannot fire him. Even if a person worked poorly and committed violations of labor discipline, termination of the contract is prohibited.

Sick leave and simultaneous dismissal are incompatible. The rule is established by Art. 81 of the Labor Code.

Important! It is permissible to terminate a contract during a period of incapacity if the enterprise is liquidated or a private entrepreneur ceases its activities.

The situation regarding voluntary dismissal is resolved completely differently.

Termination of employment at the request of the employee

It happens that a person writes a letter of resignation, and then begins to get sick. Then the contract is terminated according to the usual procedure. The contract was terminated on the date indicated in the application. There will be no delays.

The issue is resolved in a similar way if an employee writes a letter of resignation and falls ill. When to fire if the contract is terminated by agreement of the parties?

The boss will have to wait until he is discharged from the hospital if he wants to fire his subordinate. Termination of the contract is possible, but only after the ballot ends.

When the specialist closes the bulletin, the HR employee will write all the necessary information in it. Then an order is issued and an entry is made in the work book.

On the day of dismissal and not a day later, a full settlement must be made with the person; no debts should remain. If the funds are not transferred on the day of dismissal, the employee will have the right to receive wages and penalties for each day of delay.

Difficult situations

It happens that a person falls ill and submits a letter of resignation. In such a situation, managers are often interested in extending the working period. But management has no right to force a person to work extra days. Two weeks may pass while a person is sick, and there will be no need to work extra time.

You can also safely terminate your contract while on vacation. The time spent in the office will not be extended.

2 possible situations upon dismissal:

A person writes a statement, and after one week issues a sick leave. Dismissal dates do not shift if the person manages to go to work and close the ballot before the end of the work period.
The person is ill, the document on incapacity for work is not closed. The contract is terminated on the date written in the application. The deadlines remain the same. The time during which the person could not work is paid.

You need to give your work book and make payments on the last working day. The law makes no exceptions. It does not matter under what circumstances the decision was made to write a letter of resignation. When a person is absent from the office, this does not mean that there is no need to submit documents. The employee is notified in writing that he should come to the office to receive documents or give the go-ahead for the document to be sent by mail. A work book is a valuable document. It can only be sent by registered mail if the person cannot receive the form himself.

Even if there are no questions about paperwork, then a financial question often arises: how is dismissal on sick leave paid?

Procedure for payment of time of incapacity for work

Sometimes the following situation arises: an employee decided to quit and then went on sick leave. What will be the payment procedure in this case?

The employer will have to pay for the ballot if the employee was working for the company when it was opened. Moreover, payment is made for the entire time of illness. Former employees also have to pay. Payment is made if the illness begins within thirty days after dismissal.

Sick leave is paid in the amount of sixty percent of wages.

3 design examples:

Example 1. Kuznetsov N.A. worked as a manager of the Cheap Windows company. Quit. Fifteen days later I fell ill with a sore throat. I contacted my local doctor and drew up a document about incapacity for work. The employer will have to pay. Money is transferred over a period not exceeding thirty days. If the illness continues beyond this period, there will be no payment.

Demands for payment are legal if the employee makes them no later than six months from the date of termination of the contract.

Example 2. Ledentsova I.S. worked as a secretary of the Moscow District Court. The girl resigned from her position. Two weeks after the contract was terminated, I fell ill. I created a newsletter. She brought the document to the personnel service only four months after her dismissal.

Question: Do I need to pay for sick leave for a former employee?

Answer. Yes, it is necessary, despite the fact that before her dismissal, her sick leave was not received by the personnel department. A resigning specialist has the right to present a document for payment no later than six months after his departure. In our example, the deadlines were met.
So, questions about whether it is possible to receive payment for sick time after dismissal are resolved in favor of the employee, the main thing is to comply with the deadlines for the application.

Example 3. Sergeev N.S. works as a mechanic for the Tekhmontazh company. The boss doesn’t like how the specialist performs his duties, and he decided to say goodbye to the unwanted employee. Sergeev fell ill, the doctor opened a document on his incapacity for work. Termination of the contract will be possible when the sick leave is closed. In this case, the procedure established by labor legislation must be followed.

Sanctions for violations

Liability for violations is established by the Code of Administrative Offenses. An employee can seek protection of his rights from labor inspectors, the prosecutor's office and the court.

If the court confirms that there were violations, the employee will be reinstated, and the company will compensate for lost earnings.

Social guarantees are provided by the Labor Code of the Russian Federation. A person can exercise their right to rest and submit a resignation letter at the same time. The rule also applies to cases when a woman takes sick leave to care for a child. In any case, the contract is terminated on the date specified in the application.

Social guarantees do not depend on the reason for registering a ballot. A person can be fired both during his illness and while caring for a sick family member.

Summary

The Constitution and the Labor Code guarantee the prohibition of forced labor. Therefore, a person can resign from office whenever he pleases. There are no obstacles.
You can resign while on vacation or during illness.
If sick leave is issued, then we resign on a general basis. Dates are not transferred.
If you leave your position, you can still get money. Payment is made if you have time to apply no later than six months after dismissal.
When a person leaves work, the ballot is paid for a period no later than thirty days from the date of termination of the contract.
The documents are drawn up so that the employee leaves her position on the date indicated in the application. The working time is not extended when a document on incapacity for work is issued.