Should an employee leaving for the army be fired? Deadline for dismissal due to conscription

Dismissal due to conscription into the army is formalized in a special way. Our article describes the procedure for dismissal by this basis, and also tells what conditions must be met when certain situations arise.

When to expect a call

Young men from 18 to 27 years of age who are not in the reserves and are registered with the military are subject to conscription for military service (Article 22 of the Law “On Military Duty and Military Service” dated March 28, 1998 No. 53-FZ). Not called up for service:

persons not subject to conscription, exempt from both military service and conscription, including those who have completed an alternative civil service(Article 23 of Law No. 53-FZ);
who received a deferment from conscription (Article 24 of Law No. 53-FZ).

An employer will find out whether an employee can be drafted into the military by examining his military ID. Legal entities (this obligation does not apply to individual entrepreneurs) are required to maintain military records (subparagraph 6, paragraph 1, article 8 of the Law “On Defense” dated May 31, 1996 No. 61-FZ). For failure to provide information about those liable for military service to the military commissariat, the violator may be subject to a fine in the amount of 300 to 1,000 rubles. (Article 21.1 of the Code of Administrative Offenses of the Russian Federation).

Read about the rules for maintaining military records in the article “Military registration in an organization - step-by-step instructions 2018”.

Those liable for military service are called up in the spring and autumn - from April to mid-July and from October to December (Article 25 of Law No. 53-FZ). For a number of those liable for military service, slightly different conscription deadlines apply. Thus, teachers are called up from May to mid-July, and agricultural workers from mid-October to the end of December.

Personnel employees of enterprises must be prepared for the fact that an employee of military age may be drafted into the army during the specified periods.

General procedure for dismissal due to joining the army

To formalize dismissal in connection with conscription into the army, an order is issued in which reference is made to paragraph 1 of Art. 83 Labor Code of the Russian Federation. The basis for issuing an order is a summons to the conscript requiring him to appear at the place of assembly (military service).

IMPORTANT!There are several types of summons sent by the military registration and enlistment office. For example, with a call to undergo a medical examination. Upon receipt, there is no need to dismiss the employee.

It is important for the personnel officer to carefully study the contents of the agenda, because visually they are identical, since they are drawn up on a special form approved by Appendix 30 to Order No. 400 of the Ministry of Defense dated October 2, 2007.

There is no need for a conscript to write a letter of resignation in connection with being sent to the army, since the employer has no right to refuse him. However, some employers prefer that the conscript write a statement indicating the date of dismissal.

The fact is that the period of dismissal due to military service is not regulated by any regulatory act. It is important that the conscript arrives at the muster point indicated on the summons, so the deadline for dismissal is the date before the muster. At the same time, the employer does not have the right to demand that an employee called up for military service perform 2 weeks of service. At the same time, the employer has no grounds to dismiss on the day the summons is presented if there is no goodwill of the employee.

To resolve such situations, the enterprise usually approves local regulations related to military registration.

After receiving a statement from the employee and/or a summons, the employer issues a dismissal order. The employee must be familiarized with this order against signature, and then complete the dismissal process (issuing a work book, making an entry in a personal card) and pay the settlement. All this should be done on the last working day.

IMPORTANT!Do not confuse dismissal due to conscription into the army, which is carried out in accordance with paragraph 1 of Art. 83 of the Labor Code of the Russian Federation, with contract service. In the 2nd case, dismissal is carried out on the initiative of the employee or by agreement of the parties, since contract service is equivalent to employment with another employer.

If the conscript does not show up for work

There are situations when an employee of military age does not show up for work. Perhaps because he did not have time to notify the employer of receiving the summons (I received it late), or for other reasons.

In this situation, you should do this:

Note on the time sheet each day the employee fails to show up for work due to unknown circumstances.
If there is an assumption that the employee has been drafted into the army, send a request to the military registration and enlistment office located geographically at the employee’s place of residence.
When confirmation comes from the military registration and enlistment office that the employee has been drafted into the army, dismiss him with reference to clause 1 of Art. 83 Labor Code of the Russian Federation. The date of acceptance of the order is the date of receipt of the response from the military registration and enlistment office, and the date of dismissal will be the employee’s last working day.
If the military commissariat does not confirm the call for service, the employee can be fired due to absenteeism.

Read about the rules for registering absenteeism in the material “How to properly register absenteeism for an employee under the Labor Code of the Russian Federation?” .

With such an absentee dismissal, it is difficult for the employer to give the work book to the employee called up for military service; it will not be possible to familiarize him with the dismissal order. In this case, a note is made in the order that it is impossible to familiarize the employee with it. An unclaimed book can be stored in the archives of the enterprise for up to 75 years, so it can be issued to the employee on the day of application.

Or, at the request of the employee, you can send the work book to his place of registration or service address. The book can also be received by one of the employee’s relatives by proxy.

How to pay an employee

Payments to an employee being dismissed due to conscription into the army must be made on the last working day before dismissal. Along with the remainder wages paid:

compensation for annual paid leave that has not yet been used;
severance pay in the amount of 2 weeks' earnings, which is calculated based on the average Last year salaries.

Detailed information on the procedure for calculating vacation pay compensation is contained in the articles:

“Calculation of compensation for unused vacation according to the Labor Code of the Russian Federation” ;
“How to calculate the number of vacation days upon dismissal?” .

If it is not possible to give the employee a cash payment, the entire amount of payment due is transferred to the depositor and is not paid until:

appearance of the employee in person or his authorized person with a power of attorney;
receiving a notification certified by the command of a military unit about the procedure for making payments, for example, sending money to the place of service.

Or they transfer funds directly to a salary card, if the company has adopted such a system for transferring earnings.

IMPORTANT!An employer cannot demand a refund from an employee for vacation used in advance before dismissal in connection with military service.

Document flow with the military registration and enlistment office

After the dismissal of an employee on the basis specified in paragraph 1 of Art. 83 of the Labor Code of the Russian Federation, the employer must notify the military registration and enlistment office of this fact within 2 weeks.

The employer sends a request to the military commissariat to confirm the military service of an employee who has stopped going to work. In turn, the military registration and enlistment office sends a response.

If the summons was received by the employer

Currently, it is quite common practice to send summons not to the conscript’s registration address, but to his place of work. Having received a summons by mail, the company’s personnel officer first checks it for compliance with the requirements set out in Order No. 400.

Thus, the summons must be issued on a special form. It must bear the signature of the head of the draft commission and the seal of the military commissariat. If the document is not written out in accordance with the form, the employer can ignore it with impunity. It is also possible not to respond to the summons if it was handed over by the postal service after the occurrence of the deadline to collect recruits.

In other situations, the summons must be handed to the employee called up for military service against his signature. You cannot serve a summons received in advance less than 3 days before appearing at the training camp (clause 34 of order No. 400).

If the summons was not served on the employee by the employer without any objective reasons, the specialist responsible for maintaining military records in the company (this could be the manager himself) faces an administrative fine in the amount of 500-1000 rubles. (Article 21.2 of the Code of Administrative Offenses of the Russian Federation).

Is it necessary to keep a conscript’s job?

A commercial legal entity is not required to reserve for an employee called up for military service his workplace. The conscript's job is retained only in government institutions, where he can return within 3 months after serving in the army (Clause 5, Article 23 of the Law “On the Status of Military Personnel” dated May 27, 1998 No. 76-FZ).

Read the article about how military service is taken into account in length of service. “Is military service included in the length of service (nuances)?”.

Results

An employee of military age, if he is called up for military service, is dismissed under clause 1 of Art. 83 Labor Code of the Russian Federation. Dismissal is carried out on the basis of a summons presented to the employer (in some cases the employer receives the summons and hands it to the employee). An employee does not have to write a letter of resignation, but this is practiced by employers for approval exact date dismissals.

The regulations do not approve any specific date for dismissal, but it must occur no later than the day before the date of the conscript’s arrival at the muster site specified in the summons. The dismissal order is issued on the employee’s last working day, and then it is given to him employment history and full payment is made.

If an employee does not have time to notify the employer of his departure to his place of duty, the employer independently requests confirmation of this from the military registration and enlistment office and, upon receiving a positive response, issues a dismissal order. The date of dismissal in this case will be the last day that the employee went to work. Calculated cash and the work book can be kept by the employer until the employee applies for them or can be sent by mail to the address specified by the employee.

Every year in the spring or fall, any enterprise that employs persons without military ID may be faced with the need to give the employee a dismissal due to conscription into the army. Such dismissal is regulated by labor legislation and requires special documentation.

Regulations by law

The circumstances of termination of the contract in connection with the employee’s departure to the army are determined by Article 83 of the Labor Code of the Russian Federation as independent of the will of the parties. And the basis for dismissal in such cases is not the employee’s statement, but a summons from the military registration and enlistment office with an order for him to appear at the assembly point for further determination of his place of service.

Often, the military registration and enlistment office sends summonses to the conscript’s place of work. And then management independently hands them over to employees, having first checked the correctness of execution according to the following criteria:

The summons form must be completed according to the form approved by the Ministry defense of the Russian Federation.
The form must bear the signature of the head of the military registration and enlistment office.
It is necessary to have a wet seal from the military registration and enlistment office that sent the document.
The summons must be sent to the place of work at least 3 days before the time of appearance indicated on it.

Violation of any of these criteria deprives the document of legal force and allows you to ignore the instructions specified in it without incurring liability under the law.

Attention! The employee has the right to choose the day of dismissal by writing a corresponding statement indicating a date convenient for him.

Persons subject to conscription are exempt from mandatory service before dismissal. The date of termination of the contract may be any day preceding the date of conscription, with the exception of the day of receipt of the summons.

The procedure for registering those leaving for military service

Dismissal in connection with conscription for military service begins with the preparation of an appropriate order with reference to paragraph 1 of Article 83 of the Labor Code. The basis for this order is a summons. But personnel officers should carefully study it, since the military registration and enlistment office may send other summonses that are not grounds for such dismissal. The employee gets acquainted with the order by signature and on the last day at work receives paychecks and a work book. Within two weeks, a written notice of the employee’s dismissal is sent to the military registration and enlistment office.

Important! Only a conscript can be dismissed in this way conscript service, and when entering service under a contract, dismissal is formalized as usual.

All this is easy to do when the employee informs you in advance and brings the summons. But it happens that they find out at work that a person is in the army after he has left. Therefore, when persons of military age who do not have a service mark on their military ID miss work, the personnel department needs to proceed as follows:

The employee's absence should be noted on the report card.
Send a request to the military registration and enlistment office at the employee’s place of registration.
The dismissal order should be issued on the day of confirmation from the military registration and enlistment office, and the day of dismissal should be considered the last day worked.
In the order, make a note about the impossibility of delivering documents to the dismissed person.
Keep the work book in the archive until required or send it to the place of registration based on the employee’s application.

If the military commissariat does not confirm the employee’s call for service, then he is fired for absenteeism.

Entry in the conscript's work book

Since the grounds for dismissal are circumstances beyond the control of the parties, the conscript is not required to write an application. The entry in the work book must contain the following information:

Date of dismissal of the conscript.
Date and order number.
Link to Article 83 indicating the reason for termination of the contract.

The personal file of the dismissed person also indicates the reason, date and serial number dismissal order.

Entitled payments

In addition to the usual payments for time worked and unused vacation days, conscripts are paid an allowance in the amount of the average salary for two weeks. Severance pay is not paid if the quitter worked under fixed-term contract concluded for a period of less than two months.

If the documents are drawn up in the absence of the employee, all payments due to him are transferred to the salary card or stored until his return. You can pay money earlier to an authorized person on the basis of a power of attorney or send funds to the place of duty upon notification of the procedure for making payments to the employee, certified by the unit commander.

Important! If an employee took vacation in advance, then they do not have the right to collect compensation from him.
Keeping a soldier's job

In government institutions, conscripts retain the right to return to work within three months after completing military service. Private enterprises are not required to retain a position for an employee. In case of former employee After an army of desires to work in the same place, his candidacy is considered by management on a general basis.

There are employers for whom dismissal due to conscription into the army turns into a real punishment. A lot of questions immediately arise and each one demands an answer. But these problems begin in the spring and autumn periods when conscription time starts. A knowledgeable personnel officer who has already had similar experience can easily find a way out of this situation. Newcomers to this industry are just beginning to learn, so they should be familiarized with the rules for carrying out this procedure.

Employment of men of military age

The first thing, when accepting a man for a position, is to find out whether he is suitable for military service or whether there are indications according to which the young man will not be sent to serve. Perhaps the guy has already served. In any of these situations, a military ID (among the people - a military man) or a draft card has a mark about it.

Secondly, the responsibility of any organization (it doesn’t matter - individual entrepreneur, private owner or government office) is the military registration of representatives of the stronger sex. If this requirement is not met, the company will be punished for such a violation.

There is a small nuance in the law - a limited circle of people can replace military service with civilian service. The only catch is that such a service will not be carried out in the territory of one’s hometown. Also, there is a category of people who receive a deferment due to illness. Here it is - in the arms of young man there must be a certificate issued to him by the military registration and enlistment office. A military conscript is sometimes conscripted if he has an advanced degree or a severe form of illness. In the territory Russian Federation The conscription age is considered to be the period from 18 to 27 years.

Reasons

In connection with the departure of an officially registered employee to the army, the employment relationship is terminated. Judging by Article 83 of the Code, such termination of relations falls under the formulation: “a reason independent of the will of the parties.” In the “Bases” column, the details of the summons received by the employee must be indicated, which must indicate the date, time and place where the employee should appear.
Please note that the military medical commission must be passed before the date indicated in the document (this is the exact day of departure to defend the Motherland).

The organization, no matter how much it would like to do otherwise in this situation, must dismiss the conscript and provide him with the required benefits. Naturally, termination labor relations occurs in advance, and not on the day when the person leaves for service.

A man must work the required 2 weeks before leaving his position. If the period indicated on the conscription document allows, then you can work longer. The report begins on the date indicated on the agenda. Dismissal documents cannot contain dates that are later than those indicated on the summons - such actions will be considered illegal.

A resignation letter should only be drawn up if the employee and the employer cannot agree with each other; other cases involve termination of the employment relationship without this formality.

When specifying a specific day of dismissal, management cannot change it or try to refuse the employee. It is possible to agree on postponing this date, but this will depend on the opinion of the employee and the day specified in the conscription document.

What should I do when I receive a summons?

Often young people are registered at one address, but in fact live in a completely different one. There can be many reasons for this - you have found housing closer to work, you live with the woman you love, or you simply decided to live separately from your parents.

In any case, military registration and enlistment offices will find a conscript anywhere, which is why they send conscription documents to the workplace. Here the enterprise is obliged to fill out the received notification according to the form approved by the Ministry of Defense. The notification form always contains the signature of the head of the draft commission, as well as a seal. They signed the form, which means they were notified of the call.

If violations are detected, the employer has the right to ignore such notice, for example, due to failure to meet delivery deadlines. It is not even necessary to notify the employee. The law allows such actions, so responsibility does not fall on anyone.

Sometimes management comes to the enterprise, and the workplace is empty. In fact, it turns out that the employee was drafted into the army. Sometimes, this is due to the delay of the summons, which did not leave the employee time to notify the employer. In other cases, a man says that he needs to join the army, but this fact is not confirmed in any way. Here the company can only make a written request to the military registration and enlistment office. When confirmation of the information specified by the employee is received, a dismissal order can be issued dated the day the response to the request is received. Dismissal is indicated on the last working day.

The order is always signed by the employee who has been familiarized with it. But who should you inform if the person is already serving? There is a special page where an entry is made in the work book. The legislation also implies full payment to the employee on his last working day and the handing out of the book, but again, this is problematic, since there is no one to give it to.

In order to avoid violations of the law, organizations send a letter to the employee’s registered address containing a request to come to the company and receive documentation. During the service, the book is sent to the archives, where it quietly awaits its owner. The former employee can also send a statement to the enterprise, certified by the command, indicating the address for sending documentation.

Dismissal procedure

Issuance of an order indicating the reason for termination of the contract. The number, date and place of appearance are written here. The document is certified by management.
An entry is made in the Order Journal.
If the employee is still working at the enterprise and has not joined the army, then he reads the information in the order and signs.
Based on Articles 140 and 178 of the Code, all necessary payments to the employee are calculated, supported by the necessary documentation.
Data is entered into a personal card.
A work book is filled out, which is subsequently handed over or moved to the archive.
There is a law according to which an enterprise must notify the military registration and enlistment office 14 days before the expected date of departure of the conscript.

Payments to an employee who joins the army

Salary for the period worked.
Compensation non-vacation leave. When the vacation was taken in advance, there is no deduction of funds.
Two-week benefit, calculated based on the average salary in the last working year.

When leaving a private enterprise and returning home, you can ask for it back, but only if the position was not given to another person. Working for state-owned companies does not imply that a conscript serving for military service will retain his or her job.

It turns out that dismissing a conscript is not so difficult; you just need to take a closer look at this procedure. Nevertheless, in order to avoid errors, you should familiarize yourself with all the pitfalls when carrying out this operation. It just so happens that valuable personnel begin to “disappear” with the onset of spring and autumn.

Sometimes it happens that the employer is completely satisfied with the employee, and the employee himself is satisfied with his work, but they still have to part ways. IN labor legislation this is called termination of an employment contract due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation).

One of these circumstances is the conscription of an employee for military service or his assignment to an alternative civilian service replacing this military service (Clause 1, Part 1, Article 83 of the Labor Code of the Russian Federation).

Dismissal due to conscription into the army: basis document

The document on the basis of which an employee is dismissed in connection with his conscription into the army is a summons:

about appearing at the appointed time to be sent to the place of military service (clauses 6, 16 of the Regulations, approved by Decree of the Government of the Russian Federation of November 11, 2006 N 663);
on appearing to receive an order indicating the place of alternative civil service (Clause 3, Article 10 of the Federal Law of July 25, 2002 N 113-FZ).

The summons can be brought by the employee himself, or it can also be sent to the employer.

It is important to note that only such summonses are grounds for terminating an employment contract. That is, for example, if an employee received a summons from the military registration and enlistment office to appear for medical examination, then there are no reasons to terminate the employment contract.

Registration of dismissal due to conscription into the army

When dismissed due to conscription for military service or assignment to alternative service, the employee does not need to write a letter of resignation.

The head of the organization/individual entrepreneur must issue a dismissal order ( unified form T-8 or T-8a), which must be familiarized to the employee against signature.

A sample of such an order can be found

It is important to know that there can be no talk of any two-week work by an employee called up for military/alternative service. The employee must be dismissed before the date specified in the summons.

Dismissal due to conscription into the army: entry in the work book

An employee resigning due to conscription for military service makes a corresponding entry in column 3 of the “Work Information” section of the work book. The wording may be as follows:

“Dismissed due to conscription for military service,”;
“Dismissed due to conscription for alternative civil service, clause 1 of Art. 83 of the Labor Code of the Russian Federation."

Dismissal due to conscription: employee’s personal card

When dismissing an employee in connection with his conscription for military service or in connection with his assignment to alternative service, do not forget to make the appropriate note in section XI of his personal card (unified form T-2).

The conscript employee must sign this card.

Dismissal due to conscription: employee benefits

Upon dismissal, a conscripted employee is paid the same amounts as an ordinary employee resigning, for example, at will(salary not received on the day of dismissal, etc.).

By the way, if it turns out that the employee took his annual paid leave in advance, then upon dismissal you cannot withhold the amount of “advance” vacation pay from him (Article 137 of the Labor Code of the Russian Federation).

In addition, such an employee is entitled to severance pay in the amount of two weeks’ average earnings (Article 178 of the Labor Code of the Russian Federation). True, if there was an agreement with the employee employment contract for a period of up to two months, then he does not need to be paid severance pay (Article 292 of the Labor Code of the Russian Federation). Although, if the payment of severance pay is provided for in a collective/employment agreement, then it is due to the employee regardless of how long the employment agreement was concluded with him.

Conscription for military service is not the same as contract service

Contract service is a voluntary decision of the employee and has nothing to do with conscription service. Consequently, an employee who decides to perform military service under a contract must be dismissed either at his own request or by agreement of the parties.

Keep in mind that if an employee leaves for military service under a contract, then he is not entitled to severance pay in the amount of two weeks’ average earnings by law.

Dismissal due to conscription into the army is one of the reasons for termination of the work of a subordinate on grounds that do not depend on the will of the parties to the contract. The draft commission or military commissar gives an order that is binding on both parties to the employment contract. A summons from the military commissariat about the need to appear at the place of demand on a certain day and time will become the basis on which the contract will be terminated. There is no need or obligation for the employee to write a statement, since the parties do not influence the circumstances under which the contract is terminated. However, the employer may take the employee's application.

What is the deadline for dismissal due to conscription?

The specific term for termination of the contract on this basis has not been determined. Objectively, dismissal due to conscription must be carried out before the deadline (date of appearance), which is indicated in the summons from the military registration and enlistment office. The employment contract must be terminated on the employee’s last day of work.

What to write in the order and work book

The employer issues an order terminating the contract due to conscription into the army, in the form T-8 or T-8a, which is established by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1.

The order states:

Business name;
location;
number, date;
FULL NAME. and the position of the employee;
date and reason for dismissal.

The date of dismissal due to conscription is the employee’s last day of work preceding the date of dispatch to the place of direct service. It is necessary to pay attention to the fact that when issuing an order, it makes reference to clause 1 of part 1 of Article 83 of the Labor Code of the Russian Federation. The order is signed by the manager. The employee specified in the order gets acquainted with it under his signature indicating the date. If the employer does not have the opportunity to familiarize the employee with the order in writing or if he does not want to familiarize himself with it under his signature, an appropriate note must be made in the document.

The basis for making an entry in the work book is an order. Entries are made according to the following rules:

Column 1 indicates the serial number of the entry being made;
in column 2 - date of dismissal due to conscription;
in column 3 - reasons and grounds in wording that exactly repeats the wording of the order;
in column 4 - details of the order (instruction).

The entry in the work record for the period of activity with the employer is certified by his signature or the signature of the person responsible for maintaining work records, a seal (if any), as well as the signature of the employee himself.

When to calculate

On the day of dismissal, final payment must be made to the employee. The payments he should receive include:

wages for the time actually worked before the day of dismissal due to conscription;
monetary compensation for unused vacation (if vacation pay is accrued in advance, it cannot be withheld);
severance pay, the amount of which is two weeks average earnings, which is not subject to personal income tax.

What happens if you don't fire?

The issue of maintaining a job for an employee called up for military service is of interest to many employers. IN government agency in accordance with the law “On the Status of Military Personnel” (clause 5 of Article 23), the employer retains the right to enter the same state organization for three months after dismissal from military service.

Sometimes a situation arises in which an employee did not quit before joining the army, either out of ignorance or intentionally. The manager needs to clarify the fact that the employee has actually served. Next, the employer unilaterally terminates the employment contract. If it is not possible to issue a work book on the last day of work, the employee is notified of the need to obtain it or be allowed to send it by mail. If there is no response, the work book is stored at the place of work. At the end of military service, the employee can pick it up or, by writing a statement, request that it be sent by mail. Thus, termination of the contract when joining the army is mandatory for the employer, even if the employee did not quit in person, he will be discharged in absentia due to conscription.