Contraction during sick leave. Topical question: is it possible to serve a notice of layoff during sick leave? How to fire a layoff worker with sick leave

An ill employee who is eligible for redundancy is entitled to sick leave compensation and severance pay. Terms of payment for BL Employees who qualify for dismissal under the heading of "layoffs" are guaranteed sick leave with some exceptions: Grounds for obtaining sick leave Availability of payment Employee's illness Yes Employee injury Yes Nursing sick children No Maternity benefits Yes Upon dismissal after layoff an employee can count on sick leave payments in two cases:

• during the period of the reduction procedure;
• after registration of dismissal on staff reduction.

A certificate of incapacity for work in case of redundancy in 2017 Procedure for processing The employee must be notified of the upcoming dismissal due to the reduction of staff at least two months before the scheduled date.

Dismissal on redundancy while on sick leave

Having received a notice of the reduction, the employee signs on it and either agrees to take one of the proposed positions, or refuses them. In the first case, there will be a transfer, in the second - dismissal under p.
2 h. 1 tbsp. 81 of the Labor Code of the Russian Federation. The period during which the employee must agree to the proposed vacancy or refuse it is not legally established. When making reductions, one should not forget to notify the trade union organization (if any). For a long time, the question of the timing of such notification remained controversial, since the wording of the Labor Code is ambiguous.

The Constitutional Court, in its Decision of 15.01.2008 No. 201-O-P, put an end to the disputes: the trade union must be notified no later than two (and not four) months before the start of the direct dismissal of workers. With the threat of mass dismissal, this period is increased to three months.

How to fire a layoff worker with sick leave?

Attention

The employee, for his part, can agree to the transfer and keep the job or refuse and terminate the employment relationship with this employer. Since the period for notifying employees of the reduction is quite long, during this period the employee may get sick.

In this regard, questions often arise regarding the procedure for paying sick leaves, as well as the procedure for postponing dismissal due to the temporary disability of a person at the time of the expiration of the period specified in the order. The current legislation states that the loss of a job due to staff reductions should not adversely affect the financial situation of a citizen undergoing treatment.

In this regard, his dismissal should be postponed until the completion of his sick leave, and the due payments should be charged in the prescribed manner.

Downsizing: sick leave during and after

• Topics:
• Temporary disability
• Dismissal

Question The employee was warned about the reduction of her position - 09/05/2014. Everything would have been fine, but unfortunately, outside of working hours, on the street, she fell and suffered a severe broken arm.
Doctors say that the sick leave will be for two months, since the worker's age and health condition are not very good. That is, at the time of the reduction of the position, she will be on sick leave.
As far as I understand, an employee on sick leave cannot be dismissed on grounds of reduction, even if she was warned. The date of dismissal will be the date of going to work after sick leave - the first working day.
For example: the date of going to work is conditionally 09/23/2014. It is the date of dismissal, despite the fact that the position is no longer there.

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Details in the materials of the System:

1. Situation: When should a new staffing table come into effect, if on the scheduled day of reduction, individual employees who were on sick leave or on vacation were not dismissed.

The legislation does not contain an unequivocal answer to this question. The staffing table, as a rule, is introduced no earlier than the expiration of two months from the date of written notification of employees whose posts are subject to reduction. The presence of individual employees on sick leave or vacation should not prevent the employer from making changes to the staffing table or approving a new staffing table, because employees can be on sick leave or on vacation for a long time.

How to cut an employee on sick leave

The text of the notification notes that the fact of familiarization of the employee with the upcoming reduction is confirmed by the employee's signature in the notice of receipt of a certified letter. What about the BiR manual? Russian law prohibits termination of employment by the employer's decision with pregnant employees.

The sick leave received during the reduction period prevents the legal reduction of an employee who is in a position, except for the following cases: When a specific position is reduced, a pregnant woman should be offered another job that matches her physical capabilities. The amount of the allowance for paying for pregnancy in accordance with the issued sick leave received during the reduction period is paid by the enterprise in due time and in the amount approved by law.

Example: The planned staff reduction in Principle LLC is scheduled for 09/30/16.

What if at the time of the reduction of the position the employee is on sick leave?

The resulting value is multiplied by the number of days indicated on the sick note. When calculating temporary disability benefits, the former employer also acts as a tax agent.

Therefore, he must withhold the necessary tax collection of 13% from the payment amount and transfer it to the IFTS. Who pays compensation? If a citizen applies to his employer, including his former employer, to pay for the sick leave, then he will be charged.

The necessary funds must be transferred to the former employee no later than 10 days from the moment the management of the enterprise receives his sick leave. Subsequently, these funds will be compensated to the company at the expense of the FSS. However, this procedure for receiving benefits is only used if the former employee did not take any action to find a job.

You can fire an employee who is on sick leave to reduce staff

What to do if an employee is on sick leave at the time of delivery of notifications A notification can be sent by letter, but in this case, the employee may claim that he did not receive such a document. Even if we are talking about a registered letter, which can only be given to the addressee and must be signed.

In this case, it is impossible to prove the opposite. After all, the employer cannot draw up an act of refusal to sign a document that contained information about the dismissal. Reduction of an employee on sick leave If an employee went on sick leave immediately before dismissal, as it was said, he is dismissed, according to a preliminary agreement in the general procedure. Of course, a sick worker may not always come for documents and wages on time.

In this case, a request is sent to him by mail to appear for the calculation.

Does the boss have the right to fire me from my position, reduce my position or transfer to a less paid position while I am on sick leave? I ask you to argue the answer, referring to the articles of the laws. It is very important. dismissal, dismissal during sick leave, layoffs on staff layoffs, layoffs, notice of layoffs, sick days on dismissal, layoffs on layoffs, work during sick leave, sick on the day of dismissal Minimize Lawyers' answers (5)

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Redundancy layoff an employee is on sick leave

And even if the employer has evidence that the notice was served to the employee, he may simply not sign it, and it will not be possible to draw up an act about this. And, of course, in no case should you send a notice to an employee whose temporary disability is associated with pregnancy, childbirth and caring for a child until he reaches the age of three. To the content Reduction of a position in the staffing table with sick leave As mentioned above, those who are temporarily disabled cannot be fired, but the agreement to terminate the employment contract for the reduction is reached long before the day of dismissal, and the date of the last working day has long been determined.

we are a large factory, we have had staff reductions. On August 24, the Employee was notified of the upcoming dismissal due to the layoff. The notice indicates the date of dismissal: October 26, but the employee was not dismissed on that day, as he was on sick leave. The employee brought a sick leave on November 2 (Monday), marked "Start work October 31-Saturday." The employer fired the employee October 30, 2015, it was the last day of sick leave. Now I realized that this was a gross mistake. We noticed her and the risk that a person will go to court is very high. Question: sick leave until October 30, d.b. dismiss October 31, but it's Saturday and the employee brought sick leave on Monday November 2 What date should we have fired him? Question 2: What is put on the report card? Question 3: What can you do now, when you noticed a mistake and the employee has not yet gone to court? !

Answer

Answer to the question:

The best option would be to reinstate the employee at work and dismiss him by agreement of the parties, or re-issue the employee reduction procedure.

An employee who was on sick leave on the day of the planned reduction can be fired only on the first working day of his return to work. If the employee is dismissed during the sick leave period, he can be reinstated at work. This is also indicated by the courts, see, for example,.

In the report card, forced absenteeism should be noted and paid in the amount of the employee's average earnings (Article 234 of the Labor Code of the Russian Federation).

If the employee refuses, then you will have to reissue the layoff procedure for the employee, including notifying the employee no later than two months before his layoff ().

Details in the materials of the System Personnel:

Situation: Is it possible to lay off an employee later than the date specified on the layoff notice as the planned layoff date.

Labor legislation does not contain a direct answer to this question. In order to avoid disputes about illegal dismissal, it is safer for the employer to notify the downsized employee about the postponement of the dismissal date at least two months before the new date.

This is explained as follows.

As a general rule, an organization must an employee about the upcoming dismissal due to staff reductions at least two months (). The question of whether it is necessary to re-warn employees about the postponement of the expected date of dismissal to a later date is not regulated by labor law. In judicial practice, two opposite approaches have developed.

Thus, some courts proceed from the position expressed by the Constitutional Court of the Russian Federation on the inadmissibility of arbitrary extension by the employer of the reduction period. Therefore, if the employer has notified the employee about the specific date of dismissal for redundancy, then he must dismiss him:

• either on the date specified in the initial reduction notice;
• or at a later date - in accordance with a repeated notification, which must be sent according to general rules no later than two months before the actual dismissal.

Other courts proceed from the fact that labor law does not oblige the employer to fire laid off employees strictly after the two-month notice period, even if the planned termination date is clearly indicated in the notice. That is, the employer can carry out the dismissal, even if a longer time has passed after the end of the notification period. At the same time, legislation does not require re-notifying employees. This approach is reflected in the appellate rulings of the Moscow City Court,.

Based on the above, given the lack of legislative regulation of the issue in question and the presence of conflicting judicial practice, in order to avoid a controversial situation, it is safest for employers to adhere to the first position. That is, in the event of a change in the reduction date, all employees who are dismissed need to send a new notice to postpone the date of dismissal to a later date. Moreover, this must be done at least two months before the new reduction date.

Attention: currently in The State Duma RF is under consideration, if approved, employers will have to indicate in the notice of reduction the specific date of the employee's dismissal. And if the planned dismissal date is postponed, employers will have to re-notify the redundant employees about this at least two months before the new dismissal date.

Ivan Shklovets,deputy Head Federal Service for labor and employment

Best regards and wishes for a comfortable work, Tatiana Kozlova,

system Human Resources expert

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From time to time, due to the conditions in which the employer finds himself, it is necessary to lay off workers. It is important to know what it is, as well as who should not be fired. , this is a reduction in the number of employees, staff - a decrease in staffing, that is, the number of posts. In the first case, people are fired in one position.

How to lay off to reduce the number and staff

First of all, it should be noted that the employer cannot make reductions of his own free will. He must prove that he has no other choice and the refusal of such an action may lead to the fact that the enterprise will have to be closed. This justification must be stated in the order of dismissal.

The fact that the employee will be dismissed, he must be warned in advance, two months before the relevant order is issued. A two-month notice of the reduction is prepared. Those who lose their jobs should be introduced with it immediately, without fail under signature. If the employee refuses to sign the document, an appropriate act is drawn up and this fact is confirmed by their signatures by two witnesses from among the employees (if the enterprise is small, one witness is enough).

Otherwise, the procedure for dismissal is the same: employees write applications, an order is prepared for the enterprise, and payments are made with the dismissed employees.

Who cannot be fired due to staff and staff reduction

Pregnant women.
Minors.
Mothers of children under three years old.
Parents raising a child / children up to 14 years old alone.
Parents raising a disabled child who is under 18 years of age.

Preparing lists of employees who will be fired

First of all, it is worth reducing vacant positions. It happens that an enterprise has, say, five salespeople, but three do the job. Unoccupied positions are being cut. Those who cannot be fired are removed from the lists of employees. From the rest, workers are selected who will be laid off. These are employees who bring less value to the company in the workplace. Moreover, the employer must also be able to confirm this fact if the case comes to trial. One more nuance - the laid-off employees need to be offered another position at the enterprise, which is vacant, even if it is less paid and not so prestigious. The fact of refusal must be made in writing.

How to fire an employee who is on sick leave

According to the law, it is impossible to break off labor relations with someone who is on sick leave at the time of dismissal. But the employer warns the employee two months in advance. This means that it can hold reduction of an employee who is on sick leave according to established order. The main thing is to deliver the notification on time.

What to do if an employee is on sick leave at the time of delivery of notifications

The notification can be sent by letter, but in this case, the employee may claim that he did not receive such a document. Even if we are talking about a registered letter, which can only be given to the addressee and must be signed. In this case, it is impossible to prove the opposite. After all, the employer cannot draw up an act of refusal to sign a document that contained information about the dismissal.

Reduction of an employee on sick leave

If an employee went on sick leave immediately before dismissal, as was said, he is dismissed, according to a preliminary agreement in the general procedure. Of course, a sick worker may not always come for documents and wages on time. In this case, a request is sent to him by mail to appear for the calculation. After the illness, the employee will receive the due payments and documents. The sick leave (up to 30 days) is paid in full, regardless of whether the employee was already fired during illness, unless, of course, at that time he found a new job.

Dismiss an employee who is on sick leave, it is possible, if we are talking about the reduction of personnel at the enterprise.

Is it possible to fire an employee who is on sick leave? It is impossible to answer unequivocally the questions about the possibility of dismissing an employee who is being treated for illness.

A lot depends on some facts and circumstances. The possibility of dismissal is influenced by the reason for the termination of employment, the employee's desire to leave his post, as well as the presence or absence of an agreement with the employer.

Now that you know the answer to the question: "Is it possible to fire an employee if he is on sick leave?", Let's move on to the analysis of situations in which this procedure is possible.

By agreement of the parties

Often upon dismissal, there is an agreement between the parties. One of the parties initiated the breakdown of relations, and the other supported this decision. The situation, which would ideally have been resolved two weeks after the application was filed, was complicated by the sick leave to which the employee went.

In a situation where an agreement has actually taken place, the employee may be fired. To do this, on the appointed day, the employer notifies the employee that the relationship has been broken and transfers or sends the work book to the former employee. The employee can appeal this decision only if there was no written agreement at all.

At the request of the employee

Can I be fired of my own free will during sick leave? While on sick leave, an employee may rethink his life and want to change jobs, retire, or simply take a break. To do this, they write a statement and pass it on to the employer.

Attention! The employer is obliged to accept an application from a citizen who is currently being treated for health reasons.

After the allotted two weeks, documents are sent or handed over to the employee personally. The same process is carried out if the employee (employee) wrote a letter of resignation and went on sick leave.

Due to the liquidation of the company

In connection with the liquidation of the company? The liquidation of an organization, its recognition as bankrupt is one of the most important reasons why an employer can fire employees without their consent.

Regardless of whether employees are undergoing treatment or are working in a regular mode, if the fact of the organization's bankruptcy or the liquidation of the enterprise has become known, such a decision cannot be disputed.

Based on a medical opinion

Dismissal of an employee on sick leave in this case cannot be carried out without the direct participation of the employee. If an employee for health reasons can no longer perform his labor function, the employer does not have the right to fire him, especially if he is on sick leave.

So is it possible to fire a person who is on sick leave if the medical report says that it is impossible for the employee to fulfill his labor obligations? What to do in this situation?

After waiting for the release date of their leave, the employer is obliged to offer the employee a new position and responsibilities that he can perform. Only in case of refusal can the dismissal procedure follow.

Is it possible to fire an employee who is often sick?

It is unpleasant when there is a person in an organization who occupies a certain position, receives a salary, but is constantly absent from the workplace due to illness. Is it possible to cut an employee on sick leave in this situation? Let's figure it out.

If an employee is constantly out of the workplace due to illness, his duties should be distributed among other persons. Such a person cannot be dismissed; the Labor Code thoroughly protects the rights and interests of employees.

And here upon leaving the hospital, the employer may offer the option of mutual consent to dismissal... Thus, we is in a hurry to prevent you from being dismissed on sick leave at the initiative of the employer without the direct consent of the employee - it is almost impossible.

Dismissal of an employee of his own free will

Is it possible to dismiss an employee of his own free will on sick leave? If an employee decided to leave the organization of his own free will - care for treatment is not a hindrance to this action... However, you should still know the nuances of such a dismissal procedure.

And what if you wrote a letter of resignation and went on sick leave? Is it possible to change the date of dismissal? If you have a statement from an employee in your office about the desire to quit, then you must sign it.

As we know, after the date of signing, the employee must work for the manager for another two weeks. But what if the employee went on sick leave?

Treatment cannot in any way affect the employee's decision to stay in the organization, therefore, if within two weeks of the so-called working off the application from the employee has not been withdrawn, the manager simply sends the employee his documents, including labor, and also notifies by phone that the relationship discontinued. The employee can pick up the papers in person.

So, now let's analyze another case: what to do if an employee wrote a letter of resignation of his own free will while on sick leave? If an employee decides to quit while on sick leave, you have no right to interfere with him. The legislator has provided for the possibility of such a break in relations, which means that in order for the dismissal procedure to go through without complications, you need to use the rules that are provided for by law.

The employee retains the obligation to notify the employer of his decision. For this, the employee sends a letter of resignation to the employer. The employer, in turn, must notify the employee whether he signs the paper or not.

If an employee manages to appear at the workplace within two weeks, it means that he independently receives a work book, if he continues to be on treatment, he receives it by mail. However, there are cases in which an employee went on sick leave and wrote a letter of resignation, but the employer refuses to let the employee go without work, and we will consider this case below.

Testing

Working off - will an employee work out after sick leave? Can he be forced to work if 2 weeks have passed since the notice of dismissal and all this time he was on sick leave? Being on sick leave frees the employee from the obligation to undergo work.

But, unfortunately, not all workers are aware of their rights, and unscrupulous employers force those who leave the hospital to work for another two weeks. This is unacceptable and the employer can be held accountable for this.

If the employee left the sick leave earlier than the two-week period has expired, then he works only the days remaining before dismissal.

Downsizing

Now, let's try to find the answer to the following questions: "Is it possible to dismiss an employee who is on sick leave to lay off?" If an employee went on sick leave at the time when you decided to reduce the staff, you must wait for the citizen to leave after treatment.

The law does not allow employers to fire sick employees for this reason. Otherwise, if you send an employee a notice of imminent dismissal, they can appeal your decision in court, ensuring that you are constantly monitored by the labor inspectorate for compliance with labor laws.

Registration procedure

How to dismiss an employee on sick leave by agreement of the parties? If you and an employee have agreed to terminate the employment relationship, but your plans were interrupted by a sick leave, do not despair. Your actions as an employer should look like this:

1. You sign a statement from an employee.
2. A two-week period begins to flow.
3. The employee is on sick leave. You specify the date of his release from sick leave.
4. If the release date from sick leave fits into a two-week period, then the employee works out the remaining days and says goodbye to you, taking a work book.
5. If the sick leave period exceeds two weeks, you notify the employee of this fact on the day of the termination of labor relations and send him a work book by letter with notification.

Sick leave payment

Many employers are concerned about how sick leave will be paid. There is an answer to this question, which is presented in the Federal Law No. 225 FZ, dated December 29, 2006. The fifth article of this normative act states that, until the moment of dismissal, a hospital employee is paid according to the general procedure, depending on the length of service of the warrior.

If the sick leave period exceeds the date of dismissal, then this period should also be paid, but in the amount of 60 percent of wages. Such sick leave is paid for the next 30 days after dismissal. If the month has expired, and the sick leave has not yet ended, then the funds to pay for the sick leave cease to flow to the citizen.

Employer's responsibility

Wrongful dismissal during sick leave at the initiative of the employer is a frequent violation of the law, but it is not always prevented due to the fact that the employees themselves do not know about their rights. However, in accordance with the Code of Administrative Offenses, the employer incurs a fine in the amount determined by the court for the unlawful dismissal of an employee.

In addition, if the employee was dismissed in accordance with the liquidation of the organization, which did not receive its logical conclusion, then in accordance with the Resolution of the Plenum of the Supreme Court No. 2 of March 17, 2004, the employee can be reinstated in his position. In this way, in the interests of employers - to respect the rights and interests of their employees, because otherwise, they will attract the close attention of the labor inspection on themselves and their organization.

Conclusion

Now you know if it is possible to fire an employee who is on sick leave and how to do it. Obey the law, and you will never have problems that can lead to not very pleasant consequences.