Is it possible to quit while on sick leave? This topic is on this moment interests both employers and, accordingly, employees. Gap labor relations during the period of sick leave is possible only on the initiative of the employee. This situation may have different variants. For example, an employee initially wrote a statement about ending his employment contract with the employer, and then fell ill, or got sick and, while on sick leave, decided to quit. Or, going on sick leave occurred on the very day when the application for termination of the employment relationship was submitted. Taking into account all these options, the employer is obliged to properly dismiss the employee according to at will during sick leave. In addition, the initiative of the institution employee in this case also includes the agreement of the parties.

Dismissal of an employee during illness at his own request

An employee can resign at his own request while on sick leave by notifying the employer 2 weeks in advance. It may happen that he falls ill during these two weeks, then the sick leave does not interrupt the specified period and there is no need to re-apply for dismissal.

Also, the employer has the right to terminate the contract with the employee based on his application if the deadline that was specified has arrived and the employee of the company is still ill. Then the dismissed person must provide a closed medical certificate of incapacity for work for calculation.

In practice, quite often a situation arises where an employee of an organization does not want to work the two weeks allotted to him before dismissal, so he submits a letter of resignation and goes on sick leave due to illness. In such cases, the manager sometimes demands that you work for the required period after recovery.

Regarding this issue, a detailed explanation was given by Rostrud, which believes that the employer’s demands are unreasonable - if the employee warned about this 14 days before dismissal, then the date of dismissal professional activity In no case can it be postponed to another day at the initiative of the employer. The department also indicates that the date of dismissal may well coincide with a period of vacation or release from work due to illness.

Dismissal on sick leave at one's own request occurs after the employee has recovered and returned to the enterprise. The manager must immediately fill out a sick leave form and only then formalize the dismissal.

Dismissal of one's own free will during sick leave must be accompanied by the issuance of a work book. It does not need to be sent by mail immediately, but it must be sent mandatory send a notification that the dismissed employee needs to pick it up or give his consent to send it by mail. The employer is released from liability regarding the untimely issuance of the work book from the very day he sent the specified notice.

Dismissal of an employee of an institution on sick leave based on the initiative of the employer

Is it possible to fire an employee who is on sick leave? The answer to this question is Art. 81 of the Labor Code of the Russian Federation - dismissal of an employee of an institution based on the initiative of the employer during the period of his incapacity for work or vacation is not allowed. Even if the employee fell ill on the day on which he was supposed to be fired, then this procedure will have to be postponed until he recovers.

If it happens that an employee does not show up for a long time at his legal workplace, but reports by phone that he is ill and is taking sick leave, then until the final reasons for his absence are clarified, the manager cannot remove him. In case of such dismissal from the place of professional activity, any court will take the side of the employee and reinstate him, and the employer will pay for the forced absence. What should an employer do in a situation where there is no one to work? You can hire another person to replace a sick mercenary before the main employee joins the company, concluding a fixed-term employment contract or agreement.

Art. 81 of the Labor Code of the Russian Federation states that it is possible to dismiss an employee who is on sick leave at the initiative of the employer only upon liquidation of the enterprise or upon termination of activities by the entrepreneur.

Calculation upon termination of employment during sick leave

According to Art. 140 of the Labor Code of the Russian Federation, on the day of termination of the employment contract (agreement), the manager is obliged to make a payment upon dismissal at his own request, if there is sick leave, and is also required to pay compensation (reimbursement) for unused vacation (part one of Article 127 of the Labor Code of the Russian Federation). If an employee of an institution is ill on the day of his dismissal and cannot come for payment, then the amount due to him must be paid no later than the next day after he submits a request for payment.

Since the insured event (illness) occurred during the period of work under an employment agreement, the employee of the enterprise has a legal right to temporary disability benefits. Exist general rules, according to which, in case of injuries and illnesses, temporary disability benefits are paid for the entire period of short-term disability until the end of the sick leave. In Part 1 of Art. 9 of Law N 255-FZ specifies the periods for which short-term disability benefits cannot be awarded. The benefit is paid for the entire period until the closure of the ballot, including the days after the date of dismissal.

Part 2 Art. 7 of Law N 255-FZ describes that benefits for short-term inability to work due to injury or illness are paid in the amount of 60% of average earnings if a person has been ill for 30 calendar days after completion of work under the employment agreement. Due to the fact that in this situation the insured event occurred before the termination of the employment relationship, the benefit is paid in the usual amount, since it depends on the insurance period.

To assign and then pay benefits for short-term inability to work, the insured person must provide a sick leave certificate, which must be issued by a medical institution. Part 1 art. 15 of Law N 255-FZ clearly establishes that the insurer must assign temporary disability benefits within 10 calendar days from the date the insured person applies for it from the necessary documents. The policyholder makes the payment of benefits on the nearest day after the assignment of benefits, which is set for the payment of wages.

p>Summarizing everything written above, we can come to the following conclusion: if an employee provides sick leave at the time of termination of the employment contract, then the employer undertakes to pay the benefit on the day of his departure. But if an employee of an enterprise does not provide a sick leave certificate at the time of dismissal, then the employer undertakes to pay the benefit on the next day that is set for the employer to pay wages.

So, the answer to such a pressing question for today: “What to do with the calculation when leaving at your own request if you have sick leave?” may be as follows: in accordance with the Federal Law “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Maternity,” sick leave, which is open to an employee of the company, is paid to him on a general basis. And this does not depend on whether the employment relationship was preserved at the time of its closure or not.

“The slightest thing - straight into the bushes!” Are you familiar with the position of employees who are responsible for something and fail to do it? Most often, such an employee suddenly becomes seriously and long-term ill. Does the employer have the opportunity to stop the tricks of unscrupulous employees who are trying in such a simple way to avoid responsibility for unfulfilled management tasks?

Almost every employer has encountered the situation of “ostrich” behavior of their employees: when there is a danger of disgrace from management and the risk of being punished for failure to fulfill their duties, the employee suddenly turns out to be sick. At the same time, his incapacity for work is confirmed both visually (the employee is absent from the workplace) and documented (the employee submits a certificate of incapacity for work). However, management has every reason to believe that there is actually no disease.

What reasons might prompt an employee to take such actions? The list is short:

1. Conflict. By going on sick leave, an employee thereby tries to avoid an imminent conflict with management and colleagues. The main message is “time heals,” which in this situation means the employee’s hope for exhaustion, repayment of the conflict by long and complete absence one of its sides.
2. Failure to comply with a standard, plan, task. The employee was afraid of the responsibility assigned to him by the manager for completing some task or project. The situation gets worse if the task is not completed and punitive measures may follow from the employer. For example, bringing to disciplinary action or reducing the size of the bonus.
3. Threat of dismissal. An employee becomes unable to work overnight due to news of an upcoming reduction in staff or numbers. Fearing being given notice of impending dismissal, the employee prefers to “be a little sick” in order to give himself a head start in searching new job or a way out of the current situation. For example, getting pregnant.
4. Continuation of vacation. A trivial situation when an employee did not have time to return from vacation. Lack of advance planning of the route sometimes leads to sad results - there are no tickets for the last day, or the transport is broken down or stuck in the steppe, etc. The solution is to urgently issue (often “retrospectively”) a certificate of incapacity for work from a doctor you know.
5. Fatigue. The situation is typical for work areas where employees are very tired due to workload, intensity of work, and there is no alternative to replacement. For example, for a chief accountant if he does not have a deputy, or for employees occupying positions directly related to working with the public (payment acceptance, cashiers in supermarkets where there is a large flow of visitors), if there is no replacement employee. In such cases, in the absence of a full weekly rest, as well as the impossibility for production reasons of using annual paid leave in full at a time, the employee decides to take a little rest on sick leave.
6. Studies. The reason is relevant only for training employees. Reluctance or inability to take study leave, including in cases of employer opposition to the employee’s legal requirement to provide study leave, give rise to a disease that requires long-term outpatient treatment. Just for the entire duration of the next session at the educational institution.
7. Alcohol intoxication. Drawing up a certificate of incapacity for work serves as an emergency way out of the situation of an employee remaining intoxicated at the beginning of the working day or becoming intoxicated from drinking alcoholic beverages at the workplace. The problems are aggravated by the employer’s identification of this fact. In this case, the reason for going on sick leave becomes twofold: on the one hand, the employee, due to general well-being cannot perform his job duties, and on the other hand, in this way the employee is trying to minimize the risk of being punished (including fired) for showing up at work while drunk. All this becomes the reason for the employee to contact a medical organization in order to obtain a certificate of incapacity for work.
8. A game of hide and seek with management. In most cases, the basis for this reason lies in the political and career games of the “top” of the organization or its structural unit. A change in leadership, potentially dangerous by a subsequent chain of personnel changes, always causes trembling horror and nervous anticipation on the part of deputies, assistants and middle managers. "Position" on sick leave in certain cases makes the employee invisible to management. In the heat of personnel changes, an employee who is neither seen nor heard is somehow forgotten for a while. And... they don’t touch it. And upon returning to work, he continues to work as if nothing had happened at his previous workplace and in his previous position.
9. Laziness. Perhaps the strangest reason of all. Its emergence is due to the presence of “warm” jobs, where there is little work, it is not hard and even well paid. But boring, uninteresting. And in general, despite all its positive properties, I’m somehow… too lazy to do it (the work). And while on sick leave you can have a good rest!

We use fighting methods

Of course, few employers are satisfied with the behavior of employees hiding from problems at work in clinics at their place of residence. Is it possible to combat this phenomenon and how? Let's try different paths and see what comes of it.

Solution 1: check the sick leave certificate for counterfeit and illegal issuance

Unfortunately, on our own the employer will not be able to do this due to. However, an employer, having reasonable doubts regarding the certificate of incapacity for work itself or the validity of his employee’s incapacity for work, may apply:

• to the authorities of the Social Insurance Fund of Russia with a request for verification. If the FSS of the Russian Federation recognizes the employer’s arguments as worthy of attention, an inspection will be carried out in relation to the healthcare institution in accordance with the Instructions on the procedure for monitoring the organization of examination of temporary disability, approved by Order of the Ministry of Health of the Russian Federation No. 291, FSS of the Russian Federation No. 167 of October 6, 1998;
• to the police and prosecutor's offices, which, within the framework of their powers, will also check the circumstances of the issuance of a dubious certificate of incapacity for work in order to detect signs of a crime.

Risk Such a solution to the problem for the employer lies in the possibility of violations that could lead to administrative and criminal liability provided for:

• Art. 24 of the Law on Personal Data (legal norms on personal data);
• Art. 13.11 of the Code of Administrative Offenses of the Russian Federation for violation of the procedure established by law for the collection, storage, use or dissemination of information about citizens (personal data) or Art. 13.14 Code of Administrative Offenses of the Russian Federation for disclosure of information with limited access;
• Art. 137 of the Criminal Code of the Russian Federation for violation of inviolability privacy(disclosure of information about an employee’s personal life, which may be classified as a crime).

Plus of the method- the desire to achieve truth and justice.

Disadvantages of the method- violation of employee rights, many wasted actions with almost zero results, the pointlessness of attempts to convict doctors of illegally issuing certificates of incapacity for work.

Thus, the decision entails a large risk of liability for officials both the employer himself and the medical organization in which the employee is being treated. It can only be true when contacting the Federal Social Insurance Fund of the Russian Federation and the prosecutor's office in order to initiate an audit of the circumstances of the issuance of a certificate of incapacity for work by a medical institution for an employee.

However, you can act in another way - through the investigative authorities. After all, the production and use of false documents is a criminal offense. And if we take into account that an agreement between an employee and a doctor, as a rule, does not exist without a bribe, which is also recognized as a crime, there is even more reason to initiate an appropriate inspection and initiate a criminal case based on its results.

Arbitrage practice

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The court convicted two people - an employee who gave a bribe for issuing a false “sick leave” and then received temporary disability benefits for it, and a doctor who received this bribe. The case turned out to be ordinary: knowing that he was not given leave at work (not according to the schedule, but at will), the employee turned to a general practitioner at a clinic other than his own with an offer to draw up and issue him certificates of incapacity for a total period of 15 days for a monetary reward. . Having agreed with the doctor, the employee went on vacation at sea, upon his return paying the doctor and receiving a document confirming his absence from work was justified, although he was not sick and was not disabled during the specified period. The employer paid for the certificates, including at the expense of the Federal Social Insurance Fund of the Russian Federation, but reasonably doubted the reality of the employee’s illness. At the initiative of the employer, after an appropriate check, a criminal case was initiated, and it even went to court. Both citizens were found guilty of committing crimes under the Criminal Code of the Russian Federation: the doctor - for forgery and taking a bribe, and the employee - for fraud and giving a bribe. Both received two years suspended sentence with probationary period of the same duration (sentence of the Lysvensky City Court Perm region from 03/04/2008) .

Solution 2: dismiss for absenteeism, allegedly not knowing about the employee’s illness

The possibility of dismissal for absenteeism is provided for in subsection “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. Paragraph 39 of the Plenum resolution Supreme Court RF dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation" (hereinafter referred to as Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2) contains clarifications regarding cases of application of this basis. Thus, it is allowed to dismiss an employee on the above grounds for:

• absence from work without good reason, i.e. absence from work throughout the entire working day (shift), regardless of the length of the working day (shift);
• the employee being outside the workplace without good reason for more than four hours in a row during the working day;
• abandonment of work without a valid reason by a person who has entered into an employment contract for an indefinite period, without warning the employer of termination of the contract, as well as before the expiration of the two-week warning period;
• abandonment of work without a good reason by a person who has entered into an employment contract for a certain period before the expiration of the contract or before the expiration of the warning period for early termination of the employment contract;
• unauthorized use of days off, as well as unauthorized departure on vacation (main, additional). The exception is when the donor uses rest days when the employer illegally refuses to provide them.

Let us remind you that the burden of proving the fact of absenteeism lies with the employer (clause 38 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2).

Risk Such a decision consists in declaring the dismissal illegal, restoring the employee to his previous position, as well as recovering from the employer wages for forced absence and compensation for moral damage.

Advantages of the method- an immediate impact on the employee, forcing him to be active, show up at work, show a certificate of incapacity for work, and explain the reasons for his absence. Besides, this method shows the employee that the employer is serious and wants to part with him.

Disadvantage of the method is that it is illegal. Even if the employer did not know about the employee’s illness, the latter is subject to reinstatement at work in court, where he will file a corresponding claim. Part 6 art. 81 of the Labor Code of the Russian Federation prohibits dismissal at the initiative of the employer during the employee’s illness or while he is on vacation. The only possible case of leaving the dismissal as is is if the employee himself misses the deadline for going to court (one month from the date of dismissal - Article 392 of the Labor Code of the Russian Federation). In this case, it is mandatory for the employee to familiarize himself with the order, including in absentia (sending the order to the address of residence with notification of the need to receive work book, i.e. actions provided for in Art. 84.1 of the Labor Code of the Russian Federation upon dismissal of an absent employee). This is necessary to prove the date the employee became aware of his dismissal and the start of the period provided for in Art. 392 Labor Code of the Russian Federation month period to go to court.

As you can see, the method is not based on law. The likelihood that the employee will not challenge it is very low.

Arbitrage practice

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The employee filed a lawsuit against the employer to declare the dismissal order illegal and cancel it, change the date and wording of the grounds for dismissal, and collect monetary compensation, compensation for moral damage, legal expenses. In support of the claim, she indicated that she submitted an application to the employer for leave with subsequent dismissal. While on vacation, she fell ill, about which she notified her employer by fax and asked to extend her vacation by the number of days of incapacity. Upon returning from vacation (after two months), she found out that she had been fired for absenteeism.

The court found that the plaintiff was granted leave, during which she actually became ill. During the period of incapacity for work, she was issued two certificates of incapacity for work, the second of which was improperly brought to the attention of the employer. At the end of the first period of incapacity, the employee did not return to work. The employer conducted its own investigation, and the plaintiff was fired for absenteeism. However, due to the controversial fact of improper communication of information about the employee’s continuing disability, the court found proven the fact of her appeal to the employer to extend her leave for both periods of disability.

The court concluded that the dismissal procedure was violated; the employee was fired while she was on annual paid leave. This conclusion is based on the provisions of Art. 124 of the Labor Code of the Russian Federation, obliging the employer to extend or postpone another vacation employee for the period of temporary incapacity for work. Failure by the defendant to issue an order to postpone or extend the plaintiff’s vacation does not automatically deprive the employee of the right to its extension. If an employee wishes to resign at the end of annual leave, the day of dismissal must be considered the last day of leave. The employer determined the specified dates incorrectly, and therefore the plaintiff’s absence from the workplace was unreasonably regarded as absenteeism, which, in turn, resulted in illegal dismissal. Therefore, the court declared the dismissal illegal, changed the wording of the dismissal to “dismissal of one’s own free will,” and simultaneously collected appropriate compensation from the employer in favor of the employee (decision of the Sovetsky District Court of Astrakhan dated April 30, 2010).

Solution 3: do not pay benefits due to suspected fake sick leave

The situation is critical: the employer, having more than once caught the employee using such a method of avoiding troubles as sudden incapacity for work, confirmed by a properly issued and executed certificate of incapacity for work, decides to go for broke, i.e. do not pay for time of incapacity.

Risks arise immediately in aggregate:

• unscheduled inspection by the state labor inspectorate and the prosecutor's office at the request of the employee. And as a result of detecting a violation of an employee’s rights to receive social insurance benefits, the issuance of an appropriate order to eliminate the violation;
• bringing the employer or its officials to administrative liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation for violation of labor legislation;
• bringing the employer to financial liability under Art. 236 of the Labor Code of the Russian Federation (collection of compensation for delay in payment of temporary disability benefits);
• recovery by the court from the employer in favor of the employee of amounts of compensation for moral damage caused by violation of his rights.

Plus of the method- temporary material impact on the employee: “If you don’t go to work, you won’t get anything. And while you are suing and complaining, there is no more money for food.”

Disadvantage of the method- a high risk of holding the employer liable in the absence of a visible effect on the employee. The employee will still receive temporary disability benefits - whether voluntarily, or through the influence of regulatory authorities, or through the court.

The method is not based on the law and immediately entails the risk of administrative and financial liability. However, it is possible to invalidate the certificate of incapacity for work and recover from the employee the amount of temporary disability benefits paid.

Arbitrage practice

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The employer filed a lawsuit against the employee to invalidate the certificate of incapacity for work and return the temporary disability benefit. In support of the claim, he indicated that the plaintiff went on vacation without registering it in the prescribed manner. However, upon completion, she presented a certificate of incapacity for work. At the same time, the certificate of incapacity for work was issued one day before the start of the defendant’s vacation, but there were no marks on it about the employee’s violation of the regime, although the vacation lasted longer than the periods established for carrying out examinations of the disabled. The employer paid social insurance benefits for the specified certificate of incapacity for work. An inspection of this sheet carried out by the Federal Social Insurance Fund of Russia led to the employer’s refusal to reimburse the benefits paid.

The court, based on information about departures from the airport, established the dates and times of departure and arrival of the defendant. Having examined the certificate of incapacity for work, the court did not find any violations in the procedure for issuing it, but found violations in the procedure for its extension and completion (in terms of the absence of appropriate notes on the patient’s failure to appear for examinations). Based on the evidence presented, the court concluded that, without notifying the employer and without documenting her request, the defendant spent her vacation having planned it in advance. Not knowing that the employee was on vacation, the employer paid her benefits. Taking into account the provisions of the law that amounts of temporary disability benefits overpaid to the insured person cannot be recovered from him, except in cases of accounting error and dishonesty on the part of the recipient, the court found the employee’s actions to be dishonest. However, due to the fact that no violations were identified when issuing a certificate of incapacity for work, the court declared the certificate of incapacity invalid starting from the day following the day of application, and recovered the paid amount of benefits from the defendant for 9 days, thus partially satisfying the employer’s claims ( decision of the Aircraft District Court of Kazan dated February 11, 2011 in case No. 2-215/11).

Decision 4: punish the employee in absentia - during his illness

The employee let the employer down by making mistakes at work and suddenly going on sick leave, and did this at the very beginning of the investigation into errors and violations, so the employer decides to punish him without waiting for his return. In this case, the procedure for bringing to disciplinary liability will be violated: an explanation is not requested from the employee, the investigation will be carried out without his participation, he will not be familiarized with either the investigation report or the order of punishment. Therefore the main risk consists in challenging the order of punishment due to non-compliance with the procedure for bringing to disciplinary liability established by Art. 193 Labor Code of the Russian Federation.

Plus of the method- the employee will be punished.

Disadvantage of the method- if the employee is highly legal, the punishment will be in vain; he will challenge it in court and remain unpunished. However, if the employee misses the three-month (one month if the punishment was dismissal) period for going to court (the period begins from the day he becomes familiar with the order of punishment) and the employer declares this when considering a legal dispute, the order of punishment may not be will be cancelled.

The method is not based on law. There is a high risk of challenging the employer's actions. It’s another matter if the employee cheated here too - he didn’t say about his disability, he hid this fact from the employer for the purpose of subsequent reinstatement at work. In this case, the court recognizes the employee’s actions as an abuse of right.

Arbitrage practice

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The employee filed a lawsuit for reinstatement at work. He considered his dismissal illegal, since in violation of Art. 81 of the Labor Code of the Russian Federation was dismissed during a period of temporary incapacity for work. The court found that the employer conducted an internal audit of the plaintiff, which confirmed that he had committed a disciplinary offense, and the plaintiff was presented for dismissal “under the article.” On the last day of work, a settlement was made with the plaintiff, but then he presented certificates of incapacity for work, according to which the onset of his illness and treatment coincided with the date of dismissal. Having analyzed the case materials, the court came to the correct conclusion that the fact that the plaintiff committed an offense, which influenced the employer’s decision to terminate the employment contract with the employee, was confirmed. Verifying the plaintiff’s argument about dismissal during the period of his incapacity, the court concluded that the plaintiff’s actions involved an abuse of right, since he did not promptly notify the employer’s management of his temporary incapacity. At the same time, after the receipt of the certificate of temporary incapacity for work, the employer issued an order that amended the order to dismiss the plaintiff, replacing the date with the first working day after the plaintiff returned from sick leave. In this regard, the court did not find any violation of the employee’s rights in the employer’s actions and rejected the employee’s claim for reinstatement at work (decision of the Pravoberezhny District Court of Lipetsk dated November 6, 2012; appeal ruling of the Lipetsk Regional Court dated January 16, 2013 in case No. 33-3228 /2012) .

Solution 5: punish for failure to fulfill duties after the employee returns to work

The situation when, despite the “ostrich” behavior of the employee, the employer decides to punish him anyway, develops as follows. In this case, the manager gives the task to conduct an investigation, prepare all the documentation in anticipation of the employee returning from sick leave to complete the procedure for bringing disciplinary action and issuing an order to punish the suddenly ill employee who committed a violation of discipline, his job responsibilities.

If the disciplinary procedure is carried out correctly there are no risks.

Plus of the method- a conscious, gradual, targeted influence on the employee, designed to prove to the latter that no matter how much he hides on sick leave, he cannot avoid responsibility. After all, according to Part 3 of Art. 193 of the Labor Code of the Russian Federation, disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees. Thus, the employer will still have time to punish the employee, despite the duration of the latter’s illness.

Disadvantage of the method- it is necessary to wait for the offending employee to come out and then prevent mistakes in the procedure for bringing to disciplinary liability that could lead to the recognition of the order of punishment as invalid.

As we can see, the method is effective in terms of “accumulation” of disciplinary sanctions for the same employee, giving the employer the right to dismiss him in the future under clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation (for repeated failure to fulfill official duties).

The courts fully agree with the correctness of the employer in not rushing to issue an illegal punishment order in advance (due to non-compliance with the procedure), without denying his right to punish the employee after the end of the latter’s temporary disability.

Arbitrage practice

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The employee appealed to the employer with a claim to recognize the order to impose a disciplinary sanction as illegal, to force him to pay a bonus, and to compensate for moral damages. The court found that one of the plaintiff’s job responsibilities was to provide instructions on labor protection at the enterprise. On the eve of the onset of incapacity, the plaintiff filled out a log, entered the dates of the instruction and sent the log to the posts for the signatures of those instructed, but did not conduct any actual instruction. According to witnesses, this happened many times. The plaintiff’s argument that during the period of his illness the employer should have appointed another responsible person who would have carried out the planned instruction does not matter for the decision in the case, since the plaintiff committed a violation of discipline by making entries about instructions that had not yet been carried out. From the moment the violation was discovered until October 2, 2010 (approximately three months), the plaintiff was absent from work and disciplinary measures could not be applied to him during this period. However, after the plaintiff returned from sick leave, the employer, having completed all the actions required by law, brought the employee to disciplinary liability. Before applying a disciplinary sanction, a written explanation was requested from the plaintiff, which the plaintiff did not provide within the prescribed period, and therefore an act of refusal to provide a written explanation was drawn up. When applying disciplinary measures, the court did not find any violations on the part of the employer. Based on the above, the court found the plaintiff’s demands unfounded and refused to recognize the order of punishment as illegal (decision of the Severobaikalsky City Court of the Republic of Buryatia dated December 28, 2010).

Solution 6: reduce the employee’s bonus

Since it is not possible to punish the employee and there is no right not to pay social insurance benefits, the employer decides in some way to reduce or completely deprive the employee of the bonus. The desire is laudable and has a chance to be realized. For this to happen, the following conditions must simultaneously exist:

• the enterprise must operate a time-bonus or piece-rate wage system;
• the size of the bonus is not clearly fixed anywhere;
• the amount of the premium is subject to calculation based on certain changing indicators each reporting period;
• the procedure for calculating and paying bonuses is regulated by the employer’s local regulations (for example, the Regulations on Bonuses);
• local regulations (Regulations on bonuses) provide for a reduction (the employee has the right to a bonus in a smaller amount compared to the base amount) or non-payment of a bonus (i.e. when there is no right to a bonus at all) to employees who have disciplinary action in the reporting period (indicating the reduction coefficient or cases of complete non-accrual of the premium).

Thus, in order to exercise its right to reduce the size of the bonus or not pay it at all, it is enough for the employer to punish the employee (see decision 5) in compliance with the procedure provided for in Art. 193 Labor Code of the Russian Federation. And then act in accordance with the Regulations on Bonuses (or other local regulations governing relations regarding the payment of bonuses): collect office notes, reports, order of punishment (issued when the employee returns to work after an “illness”), calculations and attach to the order of bonus (de-bonus) as a basis for not awarding a bonus to a cunning, sick violator of discipline.

Risk There is always a challenge to non-accrual of premiums, but it will arise only if all or part of the conditions listed above are absent.

Plus of the method that it is effective and legal. Its goal - to reduce the likelihood of relapses of such behavior by employees - is quickly achievable. Next time, many of these imaginary “patients,” having assessed their own losses, will prefer not only to endure the unpleasant procedure of investigating the violation they committed, but will also minimize the percentage of errors in the future.

Disadvantages of the method Hardly ever.

Thus, punishing workers with rubles can even be useful: they are less likely to make mistakes at work, and less likely to try to escape trouble by going on sick leave.

Arbitrage practice

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The employee filed a claim against the employer for the appointment and payment of temporary disability benefits, payment of underpaid wages, and compensation for moral damage. In support of the claim, she indicated that the employer, incorrectly taking into account her work time on the accounting sheet, did not pay her additional wages, and also did not pay sick leave in full. The court found that, according to the work time sheets, the plaintiff worked only 34 days during the annual pay period: in September 2008 - 15 days; in October, November, December 2008 - 0 days; in January 2009 - 4 days; in February 2009 - 7 days; in March, April 2009 - 0 days; in May 2009 - 5 days; in June, July 2009 - 0 days; in August 2009 - 3 days. The endless “sick leave” and the plaintiff’s removal from work did not affect the continuation of the labor relationship between the disputing parties. The court checked all the accruals and payments made to the plaintiff and partially satisfied her demands, collecting compensation for moral damage caused by the unlawful removal. All other demands for the collection of monetary amounts were denied to the plaintiff. At the same time, the court agreed with the employer in not accruing bonuses to the plaintiff, and in not including a one-time bonus in the calculation of average earnings (decision of the Budennovsky City Court Stavropol Territory from 02.24.2011) .

Solution 7: voluntary and persuasive method of parting with an unscrupulous employee

The employer is no longer satisfied with the employee’s game of being “always sick”, and he decides to part with the sly man. At the same time, he chooses a direct method - the method of persuasion. Giving various arguments, the employer insists on terminating the employment contract. Various reasons are used - from the employee’s own desire to the agreement of the parties. In any case, the separation does not occur on the basis of the “employer’s initiative,” although at his suggestion.

If a positive result is not achieved, the employment relationship between the parties continues. However, in this case, the employer’s goal (to terminate the employment contract) can be achieved using other methods, including on his initiative using one of the grounds provided for in Art. 81 Labor Code of the Russian Federation.

Risk here only in failure to reach agreement with the employee.

Plus of the method- its “softness”, which allows you to simultaneously realize the employer’s desire to get rid of the employee, give him a short-term opportunity to find a job and leave with dignity.

Disadvantage of the method- the manager needs to be able to convince, which can be quite difficult with problem employees.

This method is legal and effective, allowing you to solve the problem at the root - to exclude such an employee from the team, and not to fight his methods of avoiding problems by taking “sick leave”.

In conclusion, we summarize that the “ostrich” behavior of staff is typical for many work situations. Not all employers can calmly tolerate an employee going on sick leave during problems that arise in the production process. Even fewer employers are inclined to take for granted the suddenness of illness on such critical days for the enterprise. Problematic situations from which an employee tries to hide at home due to illness, as a rule, are created by himself, due to his mistakes and omissions in his work. Moreover, against this background, the behavior of the employer who is the culprit of the problems looks ugly.

Despite the wide choice of control methods, not all of them allow one to cope with the phenomenon under consideration legally and in an effective way. The use of illegal methods entails a high risk of challenging the actions and acts of the employer in court. Some of the methods used by the employer, due to their illegality, entail the risk of administrative, financial and criminal liability. Thus, out of the seven considered methods of struggle, only three have signs of legality, validity, purposefulness, indisputability and effectiveness.

Practice shows that, despite the unsightliness of such behavior, workers for the most part consider themselves entitled to avoid solving problems by feigning illness, while receiving social security benefits, good wages and even a bonus. The dissimilarity between the position of the employer and the culprit of the enterprise’s problems hiding on sick leave lies in different understanding own degree of responsibility of the parties to labor relations, the scope of rights and obligations in relation to each other, guaranteed by law. However, the employer is able to significantly influence the “ostrich” behavior of an employee only in rare cases, in rare circumstances, or with a strong desire to prove fraud on the part of the employee.

Footnotes

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Dismissal during sick leave at your own request is a fairly common situation. But many do not know how such a certificate of incapacity for work will be paid, what is the correct date to terminate the agreement, and how to document it. The answers to all questions are in our article.

Illness is not an obstacle to terminating a contract

The employee must notify his superiors of his intention to terminate the employment agreement at least 2 weeks in advance. During this period, often called work-off, many things can happen, including the employee getting sick or injured. How, in this case, to formalize dismissal on sick leave at your own request?

There is no need to invent anything special. There is a written statement from the employee. It indicates a specific date for termination of the contract; it cannot be changed. Therefore, if the application is not withdrawn, dismissal must be made on the day that the employee previously asked for and which was agreed upon with management. If the date is changed, it will turn out that the employee is separated at the initiative of the employer, and this is prohibited during the period of incapacity for work.

Sick leave and detention

For those who are concerned about the question of whether sick leave is considered work upon dismissal, we explain: if within 14 days before the termination of the contract the employee falls ill, after the end of the period of temporary disability he will not need to work additionally. The employee will be fired on the day he asked for in the application, regardless of whether he worked before last day or was sick. To confirm the reason for absence from work, the employee must bring a certificate of incapacity for work after it is closed.

How to issue documents to an absent employee

One more point regarding the procedure for terminating the contract. According to the law (and voluntary dismissal during sick leave does not create any special requirements for the procedure), on the last working day a person is given documents related to his work activity, including a work book. If an employee is sick and cannot come to pick up the papers, he should be sent a notice with an offer to send them by mail. If the employee agrees, the package of documents is sent by registered mail, preferably with an inventory. Be sure to keep the receipt and file it in the ex-employee’s personal file. In case of refusal of postal forwarding, the employer is obliged to keep all documents of the former subordinate. In the future, he will need to apply in writing for the issuance of the required documents. The employer must issue them within 3 days from the date of application.

Can I count on disability benefits after dismissal?

Some are not sure whether sick leave is paid after dismissal. But all doubts in this regard are dispelled by the regulatory framework, namely Art. 5 of the Federal Law of December 29, 2006 No. 255-FZ. It says that in cases where a dismissed employee brought sick leave, benefits are paid provided that the illness or injury occurred within 30 days from the date of cancellation of the contract.

Please note that the rule applies regardless of the duration of the period of incapacity and the reasons for termination of the employment agreement. Therefore, payment for sick leave after dismissal by agreement of the parties will also be received after the employee brings a certificate of incapacity for work and the employer calculates the amount of the benefit.

How is sick leave calculated and paid after voluntary dismissal?

In order for the former employer to calculate and pay for sick days, a certificate of temporary incapacity for work must be provided to him no later than six months from the date of closure of this document. In addition to the sheet, the resigned employee needs to bring a work book and a passport to confirm his identity and the absence of a new place of work (a necessary condition for receiving payment for sick days in this situation).

The calculation must be made by the former employer within 10 days from the moment the documents are provided to him, and payment must be made on the next payday established by the enterprise.

The amount of payment for sick leave for a resigned employee does not depend on length of service and is 60% of his average earnings.

Special cases

In the case of opening sick leave with subsequent dismissal, regardless of the period for which the certificate of incapacity for work is issued, the amount of payment is calculated based on the employee’s length of service. For example, employee A., with 9 years of work experience, wrote an application to terminate the employment contract at his own request 14 days before the date of dismissal, and at that time took out a certificate of incapacity for work, which he closed after the date of dismissal. The employer is obliged to pay him for sick days in the amount of 100% of average earnings.

What to do if an employee gets sick while on vacation followed by dismissal

There are two possible situations here:

1. The employee opens a certificate of temporary incapacity for work until the last day of vacation - before the date of termination of the contract. In this case, the employer must pay sick leave in the same manner as for all employees - for all sick days in an amount depending on the employee’s length of service.
2. The employee opens sick leave within 30 days after the end of the vacation. In this case, the employer must also pay it, but in the amount of 60% of average earnings.

Do I need to pay sick leave for care?

Unfortunately, this situation has not yet found a consensus among experts. Judicial practice on this issue also varies. Clause 2 Art. 5 of Law No. 255-FZ allows different interpretation. But most experts still believe that the employer is not obliged to pay sick leave to a retired employee to care for family members.

How is sick leave paid for pregnancy and childbirth in case of dismissal?

In contrast to the situation discussed above, a resigned employee who is on maternity leave can count on payment for one of the following reasons for dismissal:

1. The employee’s husband has been transferred from his place of work (service) to another region, and the employee moves with him.
2. The employee’s health condition does not allow her to live in this region, and she is forced to change her region of residence.
3. An employee had a need to constantly look after sick relatives or group I disabled people.

Each of these reasons requires documentary evidence from the resigning employee.

The question of whether it is possible to fire a person who is on sick leave is of interest not only to employers, but also to the workers themselves. Each person may face a serious illness that will cause loss of ability to work for a long period of time. People who find themselves in such a situation are afraid of losing their workplace. For what to avoid possible conflicts with management, it is necessary to carefully study the current legal framework. In this article, we propose to consider the question of whether it is possible to fire a person if he is on sick leave.

Dismissal of an employee at the initiative of the employer while he is on sick leave is not permitted.

Dismissal of an employee on sick leave: legal framework

Solution controversial issues related to dismissal are regulated by the eighty-first article of the Labor Legislation . This document states that dismissal of an employee who is on sick leave is strictly prohibited.. In the situation under consideration, the right to terminate the employment agreement is granted only to the worker himself. It is important to note that these rules also apply to people on annual leave.

As shown arbitrage practice, situations related to dismissal during sick leave are observed quite often.

The primary task of the control authorities is to identify the initiator of this process. It is important to note that the manager who fired an employee who is on sick leave will face penalties. However, there are a number of exceptions to this rule, which we will talk about a little later.

When dismissal is prohibited by law

As we noted above, the employer cannot dismiss those employees who are absent from their workplace due to illness or departure for work. annual leave. In the eighty-first article Labor legislation it states that all workers belonging to the group described above cannot be dismissed at the request of the manager.

However, current legal provisions allow the dismissal of such employees in certain situations. This could be either the bankruptcy of a company or the liquidation of a private company. In these cases, the head of the company is obliged to terminate the employment agreements with all employees.

Acceptable situations

Dismissal of an employee on sick leave - special process, which has a number of features. The personal desire of management to terminate a contract with an employee is regarded as a gross offense. It is important to note that an employer who realizes his mistake can reinstate the employee until the ballot is closed. In this case, the employee will continue to fulfill his obligations, and the company’s management will avoid possible negative consequences.

When dismissing an employee during a period of illness, the main thing is to determine who exactly initiated the dismissal.

A worker who has not been reinstated at the time of closing the temporary disability certificate has the legal right to appeal to the labor inspectorate or court. As practice shows, the court recognizes the actions of the employer as unlawful. In this case, the employer must reinstate the dismissed worker and pay financial compensation. This rule is enshrined in the three hundred and ninety-fourth article of the Labor Code. It should also be said that administrative liability in the form of penalties is imposed on officials who committed this violation:

1. The amount of fines against private entrepreneurs varies from one to five thousand rubles.
2. The amount of the fine in relation to legal entities varies from thirty to fifty thousand rubles.
3. The amount of fines against officials varies from one to five thousand rubles.

Employee initiative

An employee on sick leave has legal grounds for dismissal at his own request.. In this situation, the employer does not face penalties from control authorities. In the case when an employee takes sick leave on his last working day, the company administration is not obliged to postpone the dismissal. The only exception to this rule is the situation in which the employee withdraws his application.

The situation in which an employee applies for termination of a contract after the opening of sick leave deserves special attention. In this case, the employee may be dismissed on the day specified on the application page or on the last day of work. It is important to note here that the worker’s illness itself cannot be a reason for extending this period.

Long-term disability

People with poor health often take out sick leave. In the event of a long absence from work, the employer may think that the employee is deliberately “inventing” illnesses for himself and providing false documents. As practice shows, situations involving deliberate deception of management are far from uncommon. But in most cases, the reason for absence from work is precisely loss of ability to work.

In order to verify the legality of the form provided by the employee, the company management needs to contact the representatives of the medical center who issued the form. Sending a formal request allows you to find out whether a given employee actually underwent treatment during a certain time period. This information is not subject to medical confidentiality, which allows the employer to easily recognize an attempt to deceive. It should also be noted that not all medical centers have the right to draw up a temporary disability certificate.

If the medical center confirms the truthfulness of the information provided by the employee, the company management does not have the right to dismiss the employee. The current laws do not have regulations limiting workers in the number of sick leaves issued during the year. This means that this employee must continue to perform his functions as before. The employer is also given the right to insist on the gathering of a medical commission for the purpose of conducting an examination. The main task of the commission is to identify the level of compliance of the employee with the position he occupies, taking into account his state of health. This approach is often practiced in those areas of professional activity where both the effectiveness of the production process and the health of other workers depend on the quality of human health.

Dismissal of a citizen while he is on sick leave, confirmed by a certificate of temporary incapacity for work, is impossible in accordance with the provisions of Art. 81 TK

In case of a negative response from a medical institution refuting the fact of issuing sick leave, the employer can count all the days when the employee was not at his place of work as absenteeism. Such workers are subject to disciplinary liability in the form of a severe reprimand or termination of the employment agreement.

A sick leave certificate is an official document indicating temporary loss of ability to work. The absence of this document may prevent you from receiving compensation. In addition, in the absence of a document, all days when the worker was absent from his workplace are counted as absenteeism, which is a gross disciplinary violation.

Liquidation of the enterprise

Having dealt with the question of whether it is possible to fire someone for frequent sick leave, you should move on to the situation related to the liquidation of the company. This procedure is carried out according to the standard procedure, which involves notifying all personnel of the upcoming closure of the company sixty days before the cancellation of the business.

In this situation, the company management needs to issue an appropriate administrative act, which will be handed over to employees for review. Workers who have not yet received compensation payments can apply to the Social Insurance Fund. This body will accept sick leave and pay compensation within ten days.

Staff reduction

Unlike the situation described above, it is impossible to fire an employee who is on sick leave due to staff reduction. These actions of management can be regarded as a gross violation of the law.

Some people confuse downsizing with the process of reorganizing a company. In the event that management decides to close a branch where a person who is temporarily absent from work due to illness works, the employer’s actions do not violate the law.

By agreement of the parties

Agreement between the parties is one of the main reasons that can be used to dismiss an employee on sick leave. However, in this case, the employer must wait until the employee has fully recovered. The accounting department of the enterprise is obliged to pay compensation, and then prepare all the documents necessary for dismissal. However, in the event that the duration of the illness exceeds the total period of work, the worker may be dismissed on the day specified in the application for termination of the employment contract.

On the last day labor activity, the employee must collect the money due and the work book. If the employee filed a ballot within one month from the date of dismissal, the employer is obliged to pay compensation in the amount of sixty percent of the employee’s average income. The worker is given the right to receive this money within six months from the date of dismissal. As practice shows, the development of such situations is quite rare.

The norm determines that an employee cannot be fired, regardless of the reason for which he is incapacitated.

For absenteeism

If the employee does not notify the company management of his illness, then the days of absence from work may be recorded as absenteeism. The development of this situation may lead to dismissal due to violation of labor discipline. It is important to note that in the current regulations there is no regulation obliging a worker to inform the employer about his illness.

In order to reduce the risk of making mistakes, the company's management must establish the true reasons for the worker's absence. This can be done either by telephone call or by sending a formal request to the employee’s home address. Quite often there are situations when a sick employee does not have the physical ability to notify his superiors about his illness.

How long can sick leave last?

The duration of the temporary disability certificate depends on the reason for taking sick leave. In addition to illnesses and injuries of the employee himself, it is allowed to take sick leave to care for sick family members, a child or a relative with a disability.

As a rule, the standard duration of sick leave due to illness is about two weeks. In order to renew the ballot, the patient must undergo a medical examination. It should also be noted that there are certain diseases for which the recovery period can be several months.

Payment of sick leave

Having considered the question of whether it is possible to fire an employee who is on sick leave, we should step back a little from the topic and talk about the methodology for calculating the amount of compensation payments. When compiling calculations, an enterprise accountant needs to adhere to the following algorithm:

1. The total salary for the last twenty-four months is determined. In case if seniority employee in a particular company is less than two years, then the worker must provide a certificate of income from his previous place of employment.
2. All employee income received over twenty-four months is added together. The result must be divided into seven hundred thirty or seven hundred thirty-one days. These calculations allow you to find out the average daily earnings of a worker.
3. At the next stage of calculations, it is necessary to identify the total amount of insurance experience. Determining this indicator allows you to identify the rate at which the amount of compensation will be calculated (60, 80 or 100 percent). Let’s assume that the employee’s total salary for twenty-four months was five hundred thousand rubles. In this case, the average daily earnings will be six hundred eighty-five rubles.
4. The amount of average daily earnings must be multiplied by the interest rate corresponding to the insurance period. If the employee’s insurance experience exceeds eight years, then the total amount of average earnings is taken into account when making calculations. The result obtained must be multiplied by the total duration of sick leave. All of the above actions allow you to find out the amount of compensation payment. It is important to note here that the first three days of temporary disability are paid for by the company’s management, and the remaining days are compensated by social insurance.

Dismissal of an employee during a period of incapacity for work is possible only if there are exceptional circumstances for such a decision.

At the end of the dismissal procedure, employees of the accounting department are required to issue the worker with a certificate of income. This document is provided to the new employer at the time of employment. Along with this act, the employee is given a completed work book. In the event that the employee cannot personally pick up the documents, he can give the company management a written notice with a request to send all documents via mail. The funds due to the worker are transferred to a bank card within three working days from the date of termination of the employment contract.

Conclusions (+ video)

Based on the above, we can conclude that in the event of an employee’s illness, the company’s management has no grounds for terminating the employment agreement. The dismissal procedure can be initiated only after the employee has fully recovered from the illness and returned to performing his main functions.

The answer to the question about dismissal during the period of sick leave depends on whether the employee himself wanted to quit or whether the employer made such a decision unilaterally.

Dismissal of an employee on sick leave at the initiative of the employer

IN Labor Code it is expressly stated that the dismissal of an employee on sick leave at the initiative of the employer is prohibited (Article 81 of the Labor Code of the Russian Federation). The only exception is the situation when the employer himself ceases its activities (the company is liquidated or the individual entrepreneur “winds up” the business).

What awaits an employer who has fired an employee on sick leave on his own initiative?

If the employer realizes that he acted unlawfully and reinstates the dismissed employee, he will not later in the day, when he is recognized by a doctor as able to work, the employee is paid sick leave benefits and continues to work as usual. Those. There are no negative consequences for the employer.

The worst option would be if the employee goes to court with a claim for illegal dismissal. Judges are usually similar situations take the side of the workers. As a result, the employer will have to reinstate the employee by paying him for the time of forced absence at the average salary and compensating for moral damages (Article 237, Article 394 of the Labor Code of the Russian Federation).

Dismissal of an employee who is on sick leave threatens the employer and its officials with administrative liability (Parts 1 and 2 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

For employer officials - a warning or a fine in the amount of 1,000 rubles to 5,000 rubles;

For an individual entrepreneur - a fine from 1,000 rubles to 5,000 rubles;

For an employer-organization - a fine from 30,000 rubles to 50,000 rubles.

Dismissal for absenteeism

Sometimes workers are fired because they do not report their illness, and the employer regards their absence from work as absenteeism. In this regard, many employers have a question: is the employee obliged to inform the employer about sick leave? So, the employee has no such obligation. Therefore, in order to protect itself, it makes sense for the employer to make efforts to find out the reason for the employee’s absence (for example, try to reach the employee or his relatives). After all, it happens that he would be happy to report that he is sick, but he simply physically cannot do this (for example, after an accident he is unconscious).

Downsizing and liquidation are not the same thing for hospital purposes

If the employer does not plan to completely close down the activity, but is only reducing staff for some reason, then laying off an employee who is on sick leave is again illegal. True, if we're talking about, for example, about the closure of only a separate unit located in a different area than the parent organization, then the reduction (dismissal) of an ill employee is possible. After all, the closure of such an OP is equivalent to liquidation (Article 81 of the Labor Code of the Russian Federation).

Dismissal during sick leave, if the employee decided to part with the employer himself

In this case, the dismissal of the employee does not threaten the employer with any negative consequences. After all, the employee decided to quit of his own free will. And if, for example, on the day of dismissal the employee went on sick leave, then he still needs to be fired on that very day. Of course, if the employee has not withdrawn his resignation letter (