Sometimes an employee becomes unable to work due to deteriorating health. In such a situation, the employer has various questions, including calculation Money. What payments should he provide in order not to break the law?
Dismissal for health reasons: regulatory framework
There is no article in Russian legislation that would fully disclose all the nuances. The information is scattered in parts according to the Labor Code and other regulatory documents. When making a decision, be guided by:
- Constitution of the Russian Federation (Article 33);
- Code of Administrative Offenses (Article 5);
- Resolution of the Plenum Supreme Court RF No. 2;
- Labor Code of the Russian Federation - Art. 73, 76, 80, 83, 127, 178, etc.
What actions does the employer take?
After receiving a medical report, do not rush to file a dismissal for health reasons. Find out what working conditions are harmful to the subordinate. Can they be eliminated or reduced? Should you reduce your working hours? In the future, three options are possible: changing working conditions, transferring to another position, or terminating the contract.
The Labor Code states that the dismissal of an employee for medical reasons is provided for:
- complete loss of ability to work, which is confirmed by the conclusion of a medical and social expert commission (clause 5 of Article 83 of the Labor Code of the Russian Federation);
- refusal to transfer to another position (clause 8 of Article 77 of the Labor Code of the Russian Federation).
An employee recognized as completely incapable of working will not be able to fulfill his obligations efficiently. Sometimes there is even a threat to others. Therefore, it is unacceptable to retain such a person. Otherwise, the employer may be subject to criminal liability.
However, you cannot, on your own initiative, formalize the dismissal of an employee for health reasons who is recognized as partially incapable of working. For example, I received disability group III. It is possible that he will cope with his responsibilities on other terms. Cooperation can be terminated only at his request. Violation of this requirement will result in liability.
How to fire someone for health reasons?
When terminating the contract, please note: if the employee refuses the offered vacancies, his decision must be recorded in writing. An appropriate entry is made on the proposal document or an application is submitted. And when the organization does not suitable vacancies, a notification is issued:
Procedure for dismissal due to health reasons:
- The employee writes a letter of resignation indicating the reason - the result of a medical report (must be attached).
- A dismissal order is issued. A reference is made to clause 8 of Article 77 of the Labor Code of the Russian Federation or clause 5 of Art. 83 Labor Code of the Russian Federation.
- An entry is made in the work book.
The employee must read the order against signature. In the future, he receives a work book and the required compensation.
Payments upon dismissal for health reasons
Funds are issued on the day of termination of the contract or within next day(from the date of application). The employee is paid:
- Salary for days worked. Salary calculation formula:
Salary = SALARY / N worker * N fact - personal income tax (13%), where:
N slave - number of working days in a month;
N fact - the actual number of days worked in a month.
- Compensation for unused vacation. It is obligatory to pay, including if a dismissal is made due to the employee’s health. In this case, all days of unused vacation are taken into account:
HOLIDAY PAY = Salary avg. * D, where
Salary avg. - average daily earnings;
D - number of unused vacation days.
- Severance pay in the amount of two weeks' earnings (Part 3 of Article 178 of the Labor Code of the Russian Federation). Insurance premiums and personal income tax are not assessed. It is calculated like this:
ALLOWANCE out = salary avg. * N, where
N is the number of working days (the first two weeks are considered).
Example
All numbers in the example are arbitrary. Alliance LLC ceases employment contract 12/7/2017 with A.I. Korshunov due to complete loss of ability to work. Salary 43,500 rub. 15 days worked in November. The average daily salary is 1,700 rubles. The main vacation was not used. What are the employee's rights?
- Salary for days worked:
43,500 / 21 * 15 - 31,071.4 * 13% = 27,032.1 rub.
- Compensation for unused vacation:
1,700 * 28 - 6188 = 41,412 rubles.
- Severance pay. Since the number of working days from December 7, 2017 to December 20, 2017 is 10, we get:
1,700 * 10 = 17,000 rub.
Alliance LLC must pay A.I. Korshunov received a salary of 27,032.1 rubles, compensation for unused vacation of 41,412 rubles. And severance pay 17,000 rub.
Is it possible to resign voluntarily for health reasons?
An employee who has partially or completely lost his ability to work has the right to resign on his own initiative. To do this, he must draw up a statement indicating the reason and attach the necessary documents. Remember that working for two weeks is not required in this case.
Dismissal for health reasons is a serious matter that requires compliance with all legal norms. To avoid conflicts, you need to understand all the nuances and, if necessary, consult with a lawyer. Then you will be able to avoid many mistakes, and the law will be on your side.
Strictly speaking, it is not necessary to draw up an application for dismissal for health reasons. In the Labor Code of the Russian Federation, such a basis - dismissal for health reasons - is absent. At the same time, in Art. 77 of the Code contains a different formulation - the employee’s refusal to transfer, which is necessary in accordance with an officially received medical report, or the employer does not have a job suitable for such a person.
If a person has not received an officially issued medical certificate (on the assignment of disability and the degree of loss of ability to work), such a basis will not be suitable. In such cases, you can only submit. How dismissal for health reasons works and why a corresponding application may be required - this article is about that.
Example of a resignation letter for health reasons
For an individual entrepreneur
P.D. Savelyeva
salesperson-cashier
store "Svetly"
Rasskazova Valentina Sergeevna
Application for dismissal due to health reasons
I ask you to dismiss me from my position for health reasons in accordance with clause 8, part 1, art. 77 Labor Code on the basis of a medical report dated 05/02/2017, issued by the City Clinical Ophthalmological Hospital of Tomsk, according to which the position of cashier salesperson is contraindicated for me for a permanent period. From the vacancies offered to me by IP P.D. I refuse Savelyeva.
Application:
- Certificate of the Tomsk City Clinical Hospital No. 2587614678 dated 05/02/20147.
05/11/2017 V.S. Rasskazova
How to confirm that your health condition is unsuitable for your job
The grounds for transfer or dismissal are official medical documents:
- conclusion of a medical and social examination, according to which the employee is assigned a disability and his ability to work is limited, a certificate of disability.
- certificate of the degree of loss of professional ability to work (also based on the results of the ITU).
- rehabilitation program as a result of an industrial accident and occupational disease.
- conclusion of a medical institution based on the results of a mandatory medical examination.
- conclusion of a doctor at the antenatal clinic.
These documents are presented to the employer. He is obliged to carry out the following actions: if it follows from the doctor’s conclusion that the employee cannot perform a labor function in his position temporarily for a period of up to 4 months, he is suspended from work without payment wages. And if more than 4 months, he is transferred to another position with the consent of such an employee or fired.
On the day of dismissal, the employee must be given a work book and severance pay in the amount of 2 weeks’ average earnings. You can apply in advance - they may come in handy.
When to submit a resignation letter for health reasons
It is important to understand that if the employee wishes to continue labor activity at of this employer, there is a high probability of detecting violations in the dismissal procedure on this basis. Namely, the proposed work. The employer is obliged to offer all available positions that are suitable for the employee. And not only in the same branch (for example). In such cases, the employee may file a claim for reinstatement and compensation for moral damages.
But if the employee is not at all interested in continuing to work, both with this employer and in principle, he can submit a letter of resignation under clause 8 of Part 1 of Art. 77 of the Labor Code of the Russian Federation. At the same time, he can be fired while on sick leave. He may also be granted, in accordance with the application, with subsequent dismissal (by agreement with the employer). Also, an employer may ask for a resignation for health reasons if there are no vacancies at all, in order to protect themselves from or in the future.
One of the reasons according to which an employer can dismiss an employee is illness that does not allow him to fully perform the duties assigned to him. First of all, it should be understood that the head of an enterprise does not have the right to independently decide whether the physical condition of his subordinate meets the necessary standards. Let's turn to the Labor Code of the Russian Federation. Paragraph No. 3 of Article 81 states that only a medical report can become the basis for considering a case of dismissal for health reasons under the Labor Code of the Russian Federation.
Grounds for obtaining a certificate of incapacity for work
In the first case, it is an illness incompatible with work activity, which is detected during a periodic medical examination. The conclusion about this is transmitted to the company’s HR department, and HR officers initiate consideration of this issue. In the second option, the employee receives an injury that makes him unable to work.
Initiation of a case for dismissal due to health reasons
The owner of the company can initiate a case for dismissal for medical reasons if his work in such a condition could be dangerous for others or in cases where the person is completely incapacitated. After the personnel service receives documentary evidence that there are medical indications for dismissal, it has the right, by order, to remove the person from work and his position. All other reasons involve resolving the problem without resorting to such an extreme measure as dismissal for health reasons.
How to transfer to a new position due to health reasons
First, the HR department prepares a special act or notice of the employee’s transfer to a new place of work. The person agrees or notes in the act that he does not agree with the management’s decision. According to the Labor Code of the Russian Federation, in case of refusal, as well as the absence of an alternative vacancy at the enterprise, the employee retains his position for four months, but without payment of wages.
If the employee is not recognized as completely incompetent, then according to Article 81 of the Labor Code of the Russian Federation (Part 2), the employer must offer him another job. As a rule, such work is much lower paid than in the previous position. Legal consultation, as practice has shown, if such a situation arises, it will be completely useful, because employers often take advantage of the current circumstances for their own purposes. The law states that if a person agrees to a transfer, then in the first month in a new place his previous salary is retained, and only subsequently the tariff rate is reduced.
Dismissal in case of refusal of a new position
The offered position does not always suit the employee in certain respects. Then he has the right to refuse the vacancy offered to him. If the period of his restoration exceeds four months, he risks being dismissed in connection with paragraph 8 of Article 77 of the Labor Code of the Russian Federation.
This fact is confirmed by the corresponding order, which the employee must familiarize himself with on the day of dismissal. Then he is given a work book and a full payment is made. According to Art. 81 of the Labor Code, paragraph No. 3, if an employee is dismissed for medical reasons, regardless of the reasons that caused the illness, the employee must be paid a benefit in the amount of his two-week salary.
Unsuitable for health reasons
When the loss of ability to work is caused by an occupational disease, the demotion does not in any way affect the employee’s salary. He receives the same salary throughout the recovery period. Until the commission recognizes his permanent loss of ability to work (Article 182 of the Labor Code of the Russian Federation).
When should you contact a lawyer?
When dismissed for health reasons under the Labor Code of the Russian Federation, the employee must know what compensation he is entitled to. That is why an employee should contact a professional lawyer who will analyze his situation in detail and provide a package of recommendations. Moreover, in the event of a conflict with the manager, legal support will be a serious help in going to court.
A professional lawyer will tell you what documents you need to collect and advise on correct behavior with management: sometimes injured workers become emotional; this will only play into the company's hands in the future.
In what situations will a lawyer help you protect your rights?
If your contract was terminated while you were on vacation at the time, contact a lawyer immediately. He will help you assert your legal rights. After all, relying on subparagraph “a” of paragraph 3 of Art. 81 of the Labor Code of the Russian Federation - this is an illegal act. In addition, you should know that based on the same legal act, the employee cannot but be paid money for unworked vacation days used in advance.
The legislation of our country has many nuances and features. To understand them, you need to be a professional lawyer. Therefore, if you have been wrongfully dismissed for health reasons, the only chance to assert your rights is to contact a professional.
Health problems to one degree or another plague most of the population, but not every disease prevents a person from working effectively. Less often, but it happens that during the next medical examination or an unscheduled visit to the doctor, medicine issues a verdict that the employee is unsuitable for work. further work. After such a conclusion, the specialist and his employer have only one option left - dismissal for health reasons.
Legal aspects
Several cases can become a medical obstacle to continuing work in your chosen specialty:
- illness resulting in disability with complete or partial loss of ability to work;
- an occupational disease that interferes with the performance of duties in a given position (the employee may well work in a less dangerous or harmful field);
- injury or accident (much depends on whether it occurred at work or outside of it).
The further course of action of the employee and the employer depends on the degree of ill health and the percentage of loss of ability to work. When doctors have made a disappointing diagnosis that allows you to work, but it is simply physically difficult for a specialist to continue to perform his duties, then we can say that the calculation is carried out according to the personal desire of the sick person, Art. 80 TK.
If the diagnosis hinders the work of a professional from the point of view of the law and labor protection requirements, but does not prohibit changing his specialty, then dismissal is possible only after a difficult procedure of finding a compromise with the employer. In the end, the reason for leaving will be the lack of suitable options translation, Art. 81 TK.
But the most unfavorable situation may arise in which the resulting disease leads to an absolute ban on work. Nothing here depends on the wishes of the parties. Dismissal will be dictated by the provisions of Article 83 of the Labor Code of the Russian Federation.
Grounds
In fact, dismissal for health reasons is possible only after receiving a certificate from a medical institution. After all, no matter how the employee himself feels, only the medical commission has the right to decide how much he is able to work in this position in particular and whether he is able to work at all.
So, if a doctor diagnoses a serious illness, but does not prohibit him from working in his specialty, then dismissal of an employee for health reasons is possible based on the decision of the employee himself. IN in this case the illness will only be an argument in a conversation with the boss to get a settlement. In the application, mention of illness will only become an additional circumstance ().
If a conclusion is made about complete loss of ability to work, an application for dismissal for health reasons is not written. According to Art. 214 Labor Code, the employee is obliged to immediately notify of receipt of the document from the hospital. For the safety of the employer, it will be better if the employee does this in writing. After receiving the message, a dismissal order is issued.
Things are more complicated in situations where work capacity is limited (temporarily or permanently) or a change in activity is recommended. Remove such employee from staffing table will not work. Only if he refuses to be transferred to other positions can an order be issued. But he will not be dismissed for health reasons, but due to refusal of transfer. This rule has been in effect for many years and has not changed as of 2019.
Is it possible to dismiss at the initiative of the employer?
If doctors have made a conclusion about an employee’s professional incompetence, the employer does not have the right to allow a person with such a certificate in hand to work. The paradox of the situation is that dismissing him for on this basis The employer also has no right. Based on the norms of Art. 81 of the Labor Code, dismissal for health reasons cannot become a natural step as a reaction to an employee’s disability.
To legally issue an order and peacefully part with an unwell employee, you must first make every effort to socialize him in the changed living conditions. To do this, the employer is obliged to find all suitable vacancies for the person. First of all, they must suit him due to his poor health. You can even offer lower paid positions and with lower qualifications. And only in the case of a written refusal to change a place in the personnel hierarchy, can we say that the management has fulfilled its obligation under the Labor Code of the Russian Federation. But even then the order will be drawn up on the basis of clause 8) of Art. 81 Labor Code of the Russian Federation.
It will not be possible to immediately fire a specialist with physical disabilities on the initiative of his superiors. First you will need to make an effort to translate it, Art. 81 TK.
Procedure for dismissal due to health reasons
Parting with an unhealthy specialist often happens quite quickly. But you can do this correctly and without consequences if you follow the procedure for dismissal for health reasons:
When calculating on the recommendation of doctors, an application for dismissal for health reasons is most often not written. But, if leaving is motivated more by personal feelings than by legal requirements, then you can take a standard statement as a model or write it in any form.
Payments and settlement
If poor health has become the reason for leaving your favorite job, then information about what payments are due to the employee upon dismissal for health reasons will be little consolation:
| Circumstances related to the well-being of employees | Actions taken on the basis of a certificate from a medical institution | Severance pay upon dismissal for health reasons, other payments and guarantees |
| Complete loss of ability to work anywhere (severe disability) | Dismissal, clause 10) art. 77 | Severance pay - average salary for two weeks, art. 178 TK. |
| The ability to work is partially preserved, the employee agrees to continue working in a lower position with a reduction in salary | Transfer order. | During the first month at the new place, the “old” salary is maintained, Art. 182 TK. |
| Working capacity is partially preserved and can be restored in the next 4 months. The employee does not agree to temporarily continue working in a lower position with a reduction in salary | Order of suspension from work. | Salaries are not accrued, except for the situation when the employee did not undergo a medical examination through no fault of his own, Art. 76 TK. |
| The ability to work is partially preserved, the employee did not agree to continue working in a lower position with a reduction in salary, or the employer does not have any vacancies at all. | Dismissal, clause 8) art. 77. | Severance pay - average salary for two weeks, art. 178 TK. |
| The ability to work was partially lost due to the performance of official functions and can be restored. The employee agrees to the transfer. | Transfer order. | The average salary will be paid either until the condition improves or until the fact of complete loss of ability to work is established, Art. 182 TK. |
| A pregnant woman has health problems | Order on transfer to “light labor”. | Salary remains at the same level, Art. 254 TK. |
In addition to paying severance pay, dismissal for health reasons retains the employer’s obligation to provide compensation for missed vacation. If an employee used “extra” days of rest in the current working year, then the employer’s accounting department has no right to withhold vacation pay already received by him, Art. 137 TK.
It is impossible to fire a pregnant woman who has been recommended for “light work” even if she refuses to be transferred to a new position found for her, Art. 261 TK.
Do I need to work it out?
Based on the conclusions of doctors and the requirements of labor protection legislation, if it is completely impossible to perform labor functions, the employer cannot require a specialist to work until a replacement is found. Accordingly, there is no question of any training.
But what if the doctors did not directly prohibit you from working or recommended a transfer to an easier position? If an employee makes a decision to resign based on personal well-being, and not on the opinion of doctors, or responds to an offer to transfer with a sharp refusal, then this can be regarded as due to health reasons. In this situation, the question of working out becomes more relevant.
Circumstances that give the employee the right not to inform about his intention to leave work in advance are listed in Art. 80 TK. The list of them is very short and not exclusive. The phrase "other cases" gives the parties labor relations plenty of room for creativity. Often illness is also considered a situation where continued work is impossible and must be stopped immediately. Courts often take the employee’s side when considering cases of refusal to work based on deteriorating physical condition. But still, if the doctor’s certificate does not contain a direct prohibition on working in the present conditions, then the validity of the reason for canceling the warning period will be assessed by the management. And the dismissal will most likely be formalized as an agreement of the parties, clause 1) of Art. 77 TK.
One of the saddest reasons for leaving a job is dismissal due to poor health. It’s even more offensive when a person is ready to work, but the doctors’ ban becomes an insurmountable obstacle on his way. The only consolation will be a reminder that the requirements for the physical condition of workers are not taken out of thin air, but are determined by the need to ensure the safety of both the specialist himself and those who depend on him due to the duties he performs. Taking this into account, a responsible professional will always make an informed decision and apply himself in a related field.
Lawyer at the Legal Defense Board. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and others regulatory documents to regulatory authorities.
Partial or complete loss of ability to work by an employee is not uncommon and, in some ways, quite natural. The human body tends to wear out under the influence of age factors, diseases, injuries that occur both at work and at home. At the same time, the performance of labor duties in each specific case requires an absolutely certain minimum level of physical and psychological capabilities. That is why the legislator has provided a clear mechanism of action aimed at protecting the interests of production and workers in the event of an employee’s dismissal for health reasons.
Grounds for termination of labor relations for medical reasons
According to the current labor legislation grounds for termination labor agreement according to medical indicators, only an expert medical report confirming the employee’s complete or partial, permanent or temporary loss of ability to work can serve.
The decision to establish the degree of disability can only be made by a special medical commission
Today, the following medical entities are authorized to issue such documents:
- Clinical Expert Commission (CEC) - determines the degree of temporary disability and makes recommendations regarding the conditions and nature of the work shown to the citizen during the decrease in the level of his working capacity caused by the disease.
- Medical and Social Expert Commission (MSEC) - makes decisions on recognizing a citizen’s complete or partial permanent loss of ability to work (recognizing a citizen as disabled) and makes recommendations on the conditions and nature of his work in the future or on complete refusal to work.
The decisions of medical expert commissions are binding and, regardless of the wishes of the working citizen regarding whose health status they are made, they are sent to his employer for execution.
At an enterprise, in connection with the receipt of such a document, one of the following situations may arise, requiring the dismissal of an employee:
- based on total loss by employee labor function the employer is obliged to dismiss him immediately under clause 5 of Art. 83 Labor Code of the Russian Federation;
- if the ability to work is partially lost and a medical report recommends only a transfer to another, most suitable position, the employer has such an opportunity, but the employee did not give his consent, the employment contract is subject to termination under clause 8 of Art. 77 Labor Code of the Russian Federation;
- when, if the employee’s ability to work is partially reduced, the employer does not have the opportunity to transfer to another position, the citizen must be dismissed under clause 8 of Art. 77 Labor Code of the Russian Federation.
Note that the law (Article 73 of the Labor Code of the Russian Federation) provides for the termination of labor relations in the event of partial temporary loss of ability to work (with the simultaneous disagreement of the employee to the transfer or the absence of a suitable vacancy on the staff) only when medical recommendations require a transfer for a period longer than four months. Otherwise, the employer may suspend the employee from work without pay for the period required in the conclusion.
Labor legislation considers dismissal due to loss of ability to work as a process, the initiator of which should rather be the employer (this is evidenced by the norms establishing the obligation to organize regular medical examinations for employees and the obligation to comply with decisions of medical expert commissions). If we consider a situation where an employee wants to quit due to at will without the appropriate medical document, appealing to the state of one’s health, dismissal must occur in accordance with the general norms of labor legislation.
Step-by-step dismissal procedure
Dismissal of a citizen on the basis of a medical report on the inability to work, regardless of the degree of disability, the possibility of transfer and other circumstances, does not require work. On the contrary, the instructions of the medical commission must be carried out immediately, since continued work activity may lead to irreversible consequences for the citizen’s health.
The algorithm for an employer's actions in a situation where an employee needs to be dismissed for medical reasons is the following sequence of actions:
- Obtaining a medical report on complete or partial loss of work function (the employee can submit the document in person or via mail).
- If medical recommendations provide such an opportunity, and there are suitable vacancies on the staff (corresponding to the level of ability and qualifications of the specialist, including lower-ranking and lower-paid ones), the employer is obliged to offer the employee a transfer to the appropriate position. The proposal is clothed in written form and is given to the employee with the obligatory marking of familiarization on the employer’s copy. A citizen can formalize his disagreement with the transfer either in the form of a separate statement or by writing on the notice itself received from the employer (in the employer’s copy). If an employee refuses to become familiar with the proposed vacancies, this fact should be recorded by drawing up an appropriate act.
- When the decision to dismiss is made (on the basis of establishing a complete lack of ability to work, disagreement with the proposed transfer, or the absence of suitable vacancies on the staff), the employer draws up a notice of termination of the employment relationship for health reasons. The document must contain an explanation of the reasons that served as the basis for dismissal; it is drawn up in two copies. The employee puts a mark of familiarization on the employer's copy. Refusal to familiarize yourself with the relevant document.
- Publication and registration of an administrative document on termination of an employment agreement.
- Familiarization of the dismissed person with the order with a mark of familiarization on it.
- Carrying out calculations.
- Entering information about the end of employment in an organization in the work book.
- Issue work book or sending a notification about the possibility of receiving it to the employee’s residence address.
- Entering data on termination of the employment agreement into the personal file and personal card of the dismissed person.
- Notification of the military commissariat and bailiff service about dismissal if they are interested.
Note that disability (permanent loss of ability to work) is a special case of loss of ability to work, therefore the procedure for terminating labor relations on this basis is no different from that described.
Paperwork
Basic documents drawn up by the employer and employee during the process of dismissal due to disability:
- Notification of a working citizen about the availability of vacant positions in the state that suit him according to the required level of qualifications and are not prohibited by medical recommendations with an offer to transfer.
- An employee’s statement of disagreement with the transfer to the proposed positions.
- Notification of termination of employment relations due to the presence of medical contraindications to continued work.
- An order of dismissal due to the deterioration of the health of a working citizen.
Sample notification (proposal) of transfer to a position that complies with medical recommendations
1st category machine operator
I.S. Sergeev
Notification
Dear Igor Stepanovich!
OJSC "Stroy" informs you that, according to medical report No. 23 dated 05.08.2016, issued by MSEC No. 1, you are recommended to be transferred to a position corresponding current state Your health, lasting 6 months. We explain to you that, according to Article 73 of the Labor Code of the Russian Federation, you have the right to:
- agree to be transferred to one of the positions offered to you. In this case, you will continue to work at our company in accordance with the terms of the previously concluded employment agreement (taking into account the changes and additions that will be made to it during the transfer);
- refuse the transfer. In this case, we will be forced to dismiss you under clause 8 of Art. 77 of the Labor Code of the Russian Federation.
List of vacant positions at Stroy OJSC as of 08/05/2016, permitted to you in accordance with medical recommendations:
- carpenter;
- mechanic;
- engineer.
A note indicating that the employee has read the job description.
A note indicating the employee’s acceptance or refusal of the proposed vacancy.
We ask you before 08/08/2016. V in writing notify management of your decision.
Date and signature of the director.
Date and signature of the employee.
An example of an application for refusal to transfer to the proposed position
To the Director of OJSC "Stroy"
I.P. Yuryev
Machine operator 1st category
I.S. Sergeeva
Statement
I hereby inform you of my refusal to transfer for the proposed vacancies. Consequences of refusal to transfer, provided for in Art. 77 of the Labor Code of the Russian Federation, explained and understandable to me.
Date and signature of the employee.
Example of a notice of termination of an employment contract
1st category machine operator
I.S. Sergeev
Notice of termination of the employment contract
Dear Igor Stepanovich!
We hereby bring to your attention that due to the refusal of the vacancies offered to you for transfer (absence in the state) corresponding to your state of health and on the basis of clause 8 of Article 77 of the Labor Code of the Russian Federation, employment contract No. 12 dated 04.05.2010. will be terminated on 08/07/2016. To familiarize yourself with the order and register necessary documents We ask you to report to the HR department on the day of dismissal - 08/07/2016.
Date and signature of the director.
Date and signature of the employee.
Sample administrative document on termination of labor relations
Sample order of dismissal in case of complete loss of ability to work
Entering information into the work book
Information about dismissal for medical reasons is entered into the work book according to general rules, established by the Instructions on filling out work books (approved by Resolution of the Ministry of Labor of the Russian Federation No. 69 of October 10, 2003).
Example of filling out a work book (table)
| Record number | date | Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating the reasons and reference to the article, paragraph of the law) | Name, date and number of the document on the basis of which the entry was made | ||
| Number | Month | Year | |||
| 3 | 07 | 08 | 2016 | The employment contract was terminated due to the employee’s refusal to transfer to another job, which was necessary for him in accordance with the medical report, paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation. | Order No. 15-k dated 08/07/2016 |
| Head of HR Department S.N. Sidorova Signature. Seal. | |||||
Final payment: salary and compensation
On the last day of work with the employee, a full payment must be made. In case of dismissal due to health reasons, the following payments are due:
- Wages for actual hours worked.
- Compensation for unused labor leave, taking into account the time worked during the working year.
- Average earnings for two weeks (severance pay).
The calculation of two-week average earnings is based on the average earnings for the previous working year.
How to calculate two-week average earnings
Machine operator I.S. Sergeev has a monthly salary of 20,000 rubles, for billing period from August 2015 to July 2016 worked 250 working days. Accordingly, the average two-week earnings (based on a five-day working week) are calculated as follows:
(RUR 20,000 x 12 months / 250 days) x 10 days = RUR 9,600
Accountants should note that the two-week severance pay is not subject to personal income tax and contributions to extra-budgetary funds.
Art. 217 Tax Code of the Russian Federation
If the employee’s loss of ability to work is due to any production factors(such information must be contained in the conclusion of the medical expert commission), average earnings he is paid until he recovers.
What is professional incompetence? Sometimes the dismissal of an employee for health reasons is confused with dismissal due to professional incompetence, but this different cases. Professional unsuitability - the employee’s inadequacy for the position held, possible reasons: the employee is not suitable for a position in a particular organization; the employee does not correspond to the position held - lack of qualifications; inadequacy of the position due to dishonest performance of one’s duties; other reasons beyond the employee's control.
Possible difficulties and controversial situations when dismissing an employee for health reasons
Existing arbitrage practice reinstatement at work after dismissal for health reasons indicates that employers have made the following common mistakes:
- Incorrect assessment of the recommendations set out in the conclusions of medical commissions (for example, there are known cases of dismissal of an employee when a temporary disability lasting less than four months is established).
- Failure to comply with the procedure for dismissing an employee (for example, the employee is not offered an existing vacancy, refusal to familiarize himself with the proposed vacancies is not documented in the appropriate act, and so on).
Despite its apparent simplicity, dismissal of an employee for health reasons is a rather multifaceted procedure. In such a situation, legislation requires the employer to be able to correctly evaluate and interpret the recommendations of medical experts, clearly understand and implement the rules on transfer, removal of an employee from work, and dismissal. Particular care should be taken in situations where the employee does not agree with the proposed options for resolving the situation, because the matter may lead to litigation.
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