AT market economy labor resource is the main one for the life of the organization, but due to the spread of new technologies, situations often occur when some professions and specialties become obsolete. In this regard, there is a reduction in the number of employees. This initiative is formed by the employer, who is obliged to support his former employees which brought him some profit. Reduction of staff is a rather complicated procedure, so you need to follow all the formalities in relation to employees. Also laid off workers receive guarantees and compensations in case of reduction. One of the compensations is unused vacation.
Consider the features of calculating such compensation when reducing the staff in the organization.
Regulatory regulation
Basis for downsizing
Reduction of staff is a change in the staffing table through the removal of divisions or staff units from it, that is, all employees working in this position or the entire division. The reduction procedure is rather complicated, because the employees do not want to lose their jobs and will try to defend their right in court. Therefore, the reduction procedure consists of the following stages, taking into account the periods:
| 1. formation of a reduction order | not less than 2 months |
| 2. informing the laid-off workers, taking into account the preferential factor and the offer of vacancies | not less than 2 months |
| 3. informing the trade union (if any) and the employment service | not less than 2 months |
| 4. payment of amounts due and issuance of all documents that are issued upon dismissal | on the day of dismissal |
| 5. when registering a laid-off at the employment center within 2 weeks from the moment of reduction, but not employed - payment of benefits | for the second month, as well as during the third month by decision of the employment service |
Important! When laying off staff, the employer is obliged to notify the laid-off employees at seasonal work - 7 calendar days, and with an employment contract up to 2 months - 3 calendar days.
So, one of the important points in the process of reduction, important for the employee is to receive compensation for the vacation, in which the employee is interested. Upon dismissal for any reason, the employee receives such compensation in without fail taking into account all the time of work in the organization.
To avoid litigation with dismissed employees, a certain reduction procedure must be followed.
M. Blagovolina, Senior Associate at Allen & Overy
The procedure for calculating compensation upon dismissal
Upon dismissal, the employee receives vacation compensation for all the years of work in this company, that is, if there are vacation days left since 2014, they will be reimbursed in cash. If the year is not fully worked out, then the share of vacation days for each month of work is calculated:
Number of vacation days due (28, 31, 35, 42, 56 days) / 12 months
It also takes into account how many days the employee worked in a month and is taken as:
- full month - more than 15 days
- month is not taken into account - less than 15 days
With a vacation of 28 days for each month, it is necessary:
2.33 vacation days = 28 days / 12 months
When calculating compensation, this number can be rounded only in favor of the employee, for example, up to 3 days.
Calculation of the number of days for compensation calculation
- full length of service in the organization (in accordance with paragraph 28 of the Rules: if the length of service of the reduced employee is 5.5-11 months, then this length of service is rounded up to 1 year)
- the number of days of paid leave for the entire period of work (with the length of service of the reduced employee 5.5-11 months, full leave is taken into account), which the employee should have received based on the length of service
- the number of days of vacation used for the entire time of work
- difference between due and used vacation
Compensation days calculation example
The employee who is subject to redundancy has been working in the organization since November 13, 2015. about the reduction informs that August 24, 2018 is the last day of work. The duration of vacation in the organization is 28 days. For 2016, 28 days were used, for 2017 - 23, for 2018 - 21.
When leaving, the organization calculates the number of days to be compensated (if any).
- total work experience in the organization - 2 years, 9 months (11 days are not taken into account, as they are less than 15 days, but the employer can round in favor of the employee)
- number of vacation days for all years of work - 77 days
- number of vacation days used - 72 days
- difference between due and used vacation - 5 days
Compensation must be credited within 5 days.
Calculation of the amount of compensation upon reduction
Having calculated the days to be compensated, you need to calculate compensation based on the average daily earnings for the billing period and the procedure for calculating the average daily amount for calculating vacation pay.
Compensation amount = average daily earnings * number of days to be compensated
Average daily earnings \u003d the amount of wage payments accrued in the billing period (preceding 12 months) / the number of calendar days taken into account in the billing period (12 months * 29.3), where:
29.3 - the average monthly number of days taken to calculate vacation pay (excluding holidays).
Payments made not for labor activity: sick leave, vacation, business trips, etc. And those days when the employee received these amounts are excluded from the billing period as a fraction of the number of these days from 29.3.
An example of calculating the amount of compensation
The employee is leaving on August 24, 2018. The duration of vacation in the organization is 28 days. Upon dismissal, the organization is obliged to calculate the amount of compensation for 5 days.
The salary of an employee is 35,000 rubles, a bonus is accrued quarterly based on the results of work in the amount of the salary. The settlement period is fully worked out.
Compensation for 5 days will be:
- Billing period: from August 01, 2017 to July 31, 2018.
- During this period, wages were calculated:
35000 * 12 months + 35,000 * 4 quarters = 560,000 rubles.
- The average daily income was:
560000 rub. / (29.3 * 12) = 1592.72 rubles.
- The amount of compensation will be:
5 days * 1592.72 rub. = 7963.59 rubles.
This amount is the employee's income, therefore it is subject to personal income tax (13% for residents):
RUB 7963.59 * 13% = 1035 rubles.
Compensation will be:
RUB 7963.59 - 1035.00 rubles. = 6928.59 rubles.
Dismissal by reduction before the expiration of the two-month period
An employee who is laid off and has written consent, but there are no suitable vacancies for him, may quit early, that is, the employment contract with him can be terminated before the expiration of 2 months. This employee is paid additional compensation, taking into account the days left before the expiration of 2 months, for example, a notice of reduction from August 24, 2018, but the employee leaves from July 02, 2018 and the amount of compensation will be taken into account as if the employee worked until August 24 2018 (part 3 of article 180 of the Labor Code of the Russian Federation).
If this employee leaves not through reduction, but own will(Article 80 of the Labor Code of the Russian Federation), then in this case the employer does not pay compensation, as in case of redundancy (Article 178 of the Labor Code of the Russian Federation).
Important! If the employee terminates the contract ahead of schedule during the reduction, he receives: compensation in proportion to the time remaining before the expiration of the warning period and other payments under Art. 178 of the Labor Code of the Russian Federation.
Error when contracting a pregnant woman
If the position to be reduced is occupied by a pregnant employee, is it possible, with her consent, to reduce?
The employer is not entitled to reduce this staff unit occupied by a pregnant woman, from which termination is not allowed at the initiative of the employer in accordance with Part 1 of Art. 261 of the Labor Code of the Russian Federation. Exception: liquidation. Thus, the dismissal of a pregnant employee at the initiative of the employer, clause 2, part 1, art. 81 of the Labor Code of the Russian Federation, will be illegal. Even with the consent of the employee, based on the results of the inspection of the GIT, administrative responsibility is provided (part 1 of article 5.27 of the Code of Administrative Offenses of the Russian Federation). And in case of unjustified dismissal of a pregnant woman - criminal liability (Article 145 of the Criminal Code of the Russian Federation).
This is stated in article 180 Labor Code:
- The possibility of extending the term for warning employees about their dismissal, as well as the suspension of this period of time, is not provided for by law.
- The dismissal of an employee initiated by the organization during the period when he is unable to work or is on vacation is unacceptable.
- This rule does not apply to cases when the employer ceases to operate or the entire organization is liquidated.
Is it possible to take a vacation with a reduction? After an employee has received notice that he is about to be fired due to a reduction in position, he has the right to use his vacation. This takes into account not only the main, but also additional leave. Layoff notice time is not added to vacation days.
Granting leave during the reduction period
Back to Reduction of holidaysMany people ask the question: is it possible to take a vacation with a reduction in staff? Also, people often wonder if there are any restrictions on vacations that have not been used. To answer these questions, you need to turn to the law. Russian Federation. After notification of the reduction, the employee has the right to unused vacation days.
There are no restrictions that prevent the use of your leave for all previous years of work. There is also a law that provides for compensation for all unused vacation days. The termination of the employment contract on the basis of a reduction must be notified in advance, namely 2 months in advance.
This is stated in Article 180 of the Labor Code: 1.
Retrenchment leave
It is important to know that all vacations that were not used at the time of dismissal are paid. The provision that monetary compensation is not paid if leave is granted in case of a reduction in position in the last three years has already been repealed. Therefore, the employee can claim compensation for all rest days, regardless of their number.
You can calculate the amount of compensation yourself. To do this, you need to know only the number of vacation days and the average wages. In addition to the funds paid for unused vacations, the employer also provides compensation provided for each employee who has been made redundant.
These payments are a temporary measure to support the employee in the period after the termination of the contract.
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Attention
You can file a claim for the recovery of debt from the employer for compensation for unused vacation within 3 months from the date of dismissal. Article 392 of the Labor Code of the Russian Federation. Dear Svetlana Viktorovna! I was accepted to the place of an employee on maternity leave, with a reduction in staff, they will reduce me or simply fire me Question: Was accepted in the place of an employee on maternity leave, with a reduction in staff, will they reduce me or simply dismiss me, terminating the contract? Lawyer Answer: Hello! If you are laid off at the enterprise, you can also be laid off and paid severance pay.Looking at your contract with the employer???The position of an employee who is on parental leave is not subject to reduction until the child is three years old. Articles 256, 261 of the Labor Code of the Russian Federation. Therefore, you are not threatened with reduction.
Maternity leave and study leave Leave can be compensated materially at the request of the employee. Study leave in case of reduction, just like maternity leave, is granted according to the same rules as regular leave. But in the case of pregnancy, the employer can give his employee the right to choose another position, to which she will be transferred. At the same time, the freed space is reduced. After the expiration of the vacation time, the employee may be dismissed.
Features of maternity leave This state of affairs is justified by legislation, which provides the employer with the opportunity to change staffing at your discretion. Therefore, employment contracts can be terminated at discretion. individual who acts as an employer. But this paragraph of the law does not apply to pregnant employees.
Advokatregion
If the warning period has already expired and the employee is still on vacation, then the termination of the employment contract can only occur after the end of the vacation period. That is, an employee can take all unused vacations and at the same time be registered with the organization. Many are also interested in the question: is it possible to get another vacation during the notice period? Yes it is possible.
AT this case the employer has no right to refuse leave until the termination of the contract. Vacation can be compensated financially at the request of the employee. To do this, you will need to write a written application, which will inform you of the desire to replace vacation time with material compensation.
According to this document the employer is obliged to pay a certain amount of money on the day when the employment contract is considered terminated.
Use of leave when reducing the number or staff of employees
Info
If the contract specifies a fixed amount, for example, 30 thousand rubles, then the employee will receive them. This also includes wages, which are calculated separately from the severance pay, but an employee can receive it for no more than 2 months. This applies only to those who leave not of their own free will.
Upon termination of the contract, the employee also has the right to count on it. Example: F. P. Alekseev was warned of his dismissal several months in advance and dismissed ahead of schedule. The rest of the days that he did not work before his dismissal is 12, and the days worked for the last month are 22.
If we take into account that in a year (226 days) he earned 240 thousand rubles, then in one day he received 1,088 rubles. So, to calculate the severance pay, you need to multiply the wages per day by the number of days worked for the last month - 1, 088 × 22. As a result, the severance pay for F.P. Alekseev will be 23,936 rubles.
Vacation before downsizing
Dismiss an employee before he returns from study leave, it is forbidden. Article 81 of the Labor Code of the Russian Federation directly states that such dismissal is possible only in the event of liquidation of the enterprise or termination of entrepreneurial activity. Reduction and maternity leave Every woman who is on maternity leave must understand that it is impossible to fire her. Although many dishonest employers they still try to reduce the young mother, without fear that it is illegal. The consequences for the organization can be:
- fine;
- payment to a woman of average earnings;
- her reinstatement;
- compensation for moral damage.
The first thing such a woman should do is to turn to lawyers. You can win such a case 100%, but you should not leave this employer unpunished.
Compensation was paid for unused vacation upon dismissal Question: Dismissed due to staff reduction on November 7, 2014. Compensation was paid for unused leave upon dismissal (in proportion to the hours worked). It seems to me that the calculation is not correct. Are the Rules on regular and additional holidays (paragraph 28) in force, according to which, for a period of more than 5 and a half months, with a reduction in staff, compensation should be for a full year, i.e. 28 days. Recruitment - April 2, i.e. a period of more than 7 months. And in what period I have the right to apply to the organization for recalculation and making additional payments. Lawyer's answer: you have the right to apply within a year from the date of dismissal. The rules are in force, clause 28 applies at the current time.
Are you required to give leave during a reduction?
From this number, the vacation days already used by the employee are subtracted, and, for example, 13 days remain (70 - 57). Then the earnings per day are calculated and multiplied by 13 days. If the average amount per day is 1 thousand rubles, then the compensation will be 13 thousand.
rubles. Are retentions possible? None cash upon dismissal of an employee cannot be withheld in favor of the enterprise. All settlement with him must be made no later than the last working day. Lump-sum payments A lump-sum payment in case of reduction is considered to be severance pay, wages and various compensations. Most often, the amount of severance pay is the average monthly salary of an employee (Article 178 of the Labor Code of the Russian Federation). In this case, the amount can be much more if this item is spelled out in collective agreement. If an employee received a salary of approximately 20 thousand rubles.
On the day of dismissal, the employee must be paid compensation for unused vacation in case of staff reduction:
- monthly salary;
- severance pay in the amount of the average salary;
- and compensation for non-holiday vacation days.
In what cases are they compensated?
Compensation for vacation in case of redundancy is paid to the employee in two cases:
- According to his application for monetary compensation instead of part of the vacation. Moreover, the specified part of the vacation is not the days that the employee is required by law, but those that are provided for in the company, a kind of “bonus”.
Money can only be received for additional leave, after using the main one in 28 days.
- When an employee is dismissed from the company for any reason provided for by the Labor Code, incl. and downsizing.
Arithmetic features of the calculation
To get a fair payment for non-vacation leave, you need to understand the intricacies of calculating periods for accruing money:
- Compensation is calculated for working years. The beginning of the period is the date of employment.
- If an employee has not worked for a whole year in the company, the vacation is compensated in proportion to the time worked - for full months.
- Surplus rule: an incomplete month is taken into account depending on the number of days worked by the employee.
If less than half a month is worked out, compensation is not charged. If more, the whole month is included in the calculation.
- “11 at 12”: the TC is on the side of the dismissed person, therefore, according to the rules, if 11 months are worked in the year of dismissal, then the whole year is included in the calculation.
- On October 28, 2016, the Ministry of Labor explained how the surplus rule correlates with the 11 to 12 rule. So, if more than 10.5 months are worked out in a year, then they are counted as 11. And 11 months - for a year.
Therefore, more than 10.5 months of work will be taken into account when calculating vacation compensation for the year.
How to calculate?
When compensating for unused vacation upon dismissal due to redundancy, the average monthly salary (SWP) of the employee is used.
The rules for its calculation are spelled out in the Regulations on the peculiarities of the procedure for calculating the SZP of 2007.
- The total number of days worked in the billing period.
- The total amount of accruals for the period.
- The average salary of an employee (SWP) per month.
- Average daily income.
- The number of unused vacation days.
Counting days worked
Time not included in the calculation of FWP
But super-responsible workers are hard to find, everyone is human: they get sick, take time off, sit on the jury and use other reasons not to come to work.
Labor legislation establishes a number of periods that are not taken into account when calculating compensation.
All these non-included periods can be conditionally divided into 2 groups:
- The time of absence of the employee, for which he was kept average earnings and already paid:
- illness on sick leave;
- maternity leave and childbirth and up to 3 years;
- strike at the enterprise in which the employee did not participate;
- business trip;
- circumstances beyond the control of the parties (for example, natural disasters, etc.);
- training in the direction of the company;
- holidays, incl. additional;
- easy to work due to the fault of the company.
- Time of absence for other reasons, during which the SFP was not accrued - for example, on days off at the expense of the employee.
How to count periods of work?
- According to the production calendar, we count the number of working days.
- We count the days not included.
- We subtract the second from the first - we get the actual time worked by the dismissed person.
We calculate the accrued payments
After counting the days worked, all payments made to the employee are calculated.
So, all salary items of income are summed up:
- starting salaries and rates;
- various supplements to them;
- bonuses;
- additional payments for work in special (difficult) conditions or on holidays, weekends;
- any other "earned" income as statutory as well as by the firm itself.
When calculating, it does not matter what system of payment a person worked on and how exactly he received a salary in his hands - even income received in kind is taken into account.
What income is not taken to calculate the FWP
Cash payments that were accrued to the employee in accordance with the right to maintain SFP during the periods specified by law (more on them below).
- Payments that are not related to the wage system in any way - i.e. social guarantee payments at the initiative of the employer. For example, VHI, payment mobile phone, subsidies for food, dividends, daily allowance for business trips, etc.
- The last case is compensation for downtime at work due to the fault of the company or in the event of cataclysms and other reasons that do not depend on the will of the parties.
Calculate the average earnings
For the calculation of the SFP, the period is considered to be a working year - 12 months from the date of admission.
The WFP formula is as follows: we divide the actually accrued amount for the work by 12 (months).
We get the SFP, the size of which, if reduced, is needed to pay the severance pay and then another 3 months of maintenance for the duration of the job search.
Calculate daily earnings
To calculate vacation pay, we calculate another indicator - the average daily earnings.
To do this, the income for the time actually worked is divided by the total number of days worked during the period.
Counting non-holiday days
From the total number of required vacation days, we subtract those that the employee used.
Vacation days that are taken into account when calculating compensation include all those provided for by the Labor Code - both the minimum 28 days and additional special conditions labor and production.
Additional holidays provided for employment contract or agreement in the company, are not taken into account. The employer may, at its discretion, compensate for them, but such payments are not exempt from taxes and contributions.
Calculate vacation pay
Calculate the number of vacation days left:
- For the year = the difference between the days laid down according to the Labor Code and the days off.
- For an incomplete year = (clause 1 (for a year)) divided by 12 months) and multiplied by the number of months worked
- For several years = item 1 (per year)) we multiply by the number of years worked.
The resulting number of days must be multiplied by the average daily earnings of the employee, calculated earlier.
The procedure for receiving compensation for unused vacation
According to Art. 140 of the Labor Code, the employer must pay the entire amount of money due to the employee on the day of dismissal - not only the salary for the month worked, but also vacation compensation and benefits in the amount of one average monthly income.
Labor Code of the Russian Federation, Article 140. Terms of calculation upon dismissal
Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.
In the event of a dispute about the amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article.
IMPORTANT. The dismissed person should not ask to calculate his vacation compensation, and the employer does not have the right to demand an application from him, as well as to refuse payment on this basis. The Labor Code contains an extremely clear wording on the payment of all debts upon dismissal.
But sometimes Accounting and personnel differ dramatically (especially in "gray" companies), and therefore it can be documented that the employee took all the "accounting" holidays, but actually did not rest for several years.
In this case, the employee should still take care of his finances until the day of dismissal. He must draw up and formally submit a statement to the management of the company.
The wording is free, such a plan:
Director of Yab LLC
from Ivanov I.I.,
resident: address.
Statement
In connection with the upcoming dismissal, I ask you to calculate compensation for me for the vacation days that I did not use while working in the company from 07/07/14 to the present.
Ivanov I.I., signature, date
Documentation of compensation by the employer
The employer draws up an order on the last day of the employee's work, on the basis of which the accounting department calculates the amount of compensation.
The law does not contain a strict form of the document, so the wording remains at the discretion of the personnel officer.
For example:
Order No. 160-uv
10/15/16 Moscow.
Based
Art. articles 126, 139, 140, 142, 178, 180 of the Labor Code of the Russian Federation,
as well as the order of dismissal dated 10/15/16 No. 159-uv
I order:
make a full settlement with Ivanov A.A. and pay him all the amounts due,
including compensation for unused vacation days for the period of work from 07/07/14 to 10/15/16.
Director of Yab LLC Ivolgin P.I.
Deductions from vacation compensation to the budget
According to Article 422 of the Tax Code, compensation for unused vacation upon dismissal is subject to taxes and fees in general order, i.e. from this amount, personal income tax is paid - 13%, fees from the FSS, MHIF and PFR - 30%.
Useful video
Look at the video: compensation for unused vacation:
To stay afloat, companies must be flexible in their response to change. economic situation. The demand for goods has changed - it is necessary to develop another area of activity and say goodbye to employees involved in the old one, it became possible to automate part of the work - it is necessary to reduce staff. Registration of all documents and payments to employees in such a situation raises a lot of questions. One of them is how to properly compensate an employee for vacation upon dismissal due to staff reduction?
According to par. 1 st. 127 of the Labor Code of the Russian Federation in the event of dismissal, the company must pay the employee monetary compensation for all days of unused vacation.
However, there is another point of view.
Employee has worked less than 5.5 months
In this case, the employee is entitled to compensation upon reduction, calculated based on the months worked. The calculation algorithm is similar to compensation for vacation upon dismissal of one's own free will. You can find out about it.
The employee worked from 5.5 to 11 months
Let us turn to the Rules on ordinary and additional holidays, approved by the USSR CNT on April 30, 1930. Despite their almost century-old "age", they operate in the part that does not contradict modern laws.
So, if an employee who has worked for more than 5.5 months, but less than 11, is dismissed due to staff reduction, then he is supposed to compensate for the vacation for the year, and not for the period worked.
After working for 11 months, the employee is entitled to a full annual leave of 28 days or compensation for it upon dismissal for any reason.
The employee has worked for more than a year
In this case, the calculation of compensation for vacation upon dismissal for reduction causes the greatest number of disagreements. Neither the Labor Code nor the Rules of 1930 explicitly stipulate such a situation. Obviously, all non-holiday vacations for full years must be compensated in full. How to calculate compensation for unused months of the last period: in proportion to hours worked or for a full year?
Recommendation Federal Service on labor and employment No. 2 of 06/19/2014 states that an employee who has worked in the company for more than a year and is dismissed due to staff reduction is entitled to receive compensation for unused vacation for the full last working year if he has worked in it for at least 5.5 months.
Thus, if an employee has worked in the organization for more than a year and worked less than 5.5 months in the last working year, then compensation for the last period is paid in proportion to the months worked. If an employee has worked more than 5.5 months, a full year's leave is reimbursed.
Example 1
The employee took up the job on April 1, 2012. He is due to be made redundant on July 14, 2014. During the period of work, the employee was on vacation for 56 calendar days, while the last time he took a vacation from May 13, 2013 to June 6, 2013. The employee's salary has not changed since January 1, 2013 and amounts to 30,000 rubles a month. There are no excluded periods (sick days, etc.).
Upon dismissal, the employer must compensate for unused vacation from April 1, 2014 to July 14, 2014. Because in July, the employee worked less than half, then compensation will be paid for 3 months: April, May and June 2014.
Average daily earnings: 360,000 / (12 * 29.3) \u003d 1,023.89 rubles.
Compensation will be: 1,023.89 * 2.33 * 3 = 7,156.99 rubles.
Example 2
We use the data of the previous example, but the employee should be reduced not on July 14, but on September 17.
In this case, in the third working year, the employee worked for the period from April 1, 2014 to September 17, 2014, i.e. 5 months and 17 days. Therefore, he must be compensated for the leave for the entire 3rd year.
Compensation will be: 1,023.89 * 2.33 * 12 = 28,627.96 rubles.
How is the average daily earnings for vacation pay calculated? Calculation examples are available.
Article 3 of the Labor Code prohibits discrimination against employees. Payment of FULL compensation to an employee dismissed due to staff reduction and worked in an organization from 5.5 to 11 months - clause 28 of the resolution of the CCC CCC dated 04/30/1930) and the payment of PROPORTIONAL compensation for vacation, to an employee who was also dismissed due to staff reduction and worked in the organization for more than a year, who had already used the next vacation before, but also received from 5.5 to 11 months in offset for the new vacation in his own working year - seemed to me discrimination of the “old-timer” compared to the “newcomer”.
Such a procedure for compensating for vacation upon dismissal due to redundancy is, in fact, a social conflict generator.
Comments that I later found on the Internet (see below) say that the approach to calculating vacation compensation should be. is the same if the employee 1) was fired due to a reduction, 2) worked from 5.5 to 11 months as a vacation credit, regardless of the total length of service in the organization.
But now new question. Suppose an employee worked for 5 months in his next working year. Upon reduction, he will receive proportional compensation for 28:12 × 5 = 11.67 days. Another worker worked as much as half a month more, i.e. 5.5 months, and must, according to the current (not canceled) standards, receive full compensation in 28 days.
What is this magical 15 days that add as many as 16 (!) Days of compensation?
Isn't it time to bring clarity to the Labor Code?
http://krasnoturinsk.info/newsvk/letter/47-2009-08-18-11-04–32
Comments by Prosecutor Ilya Golendukhin
Like this nor paradoxically, to the calculation of the amounts of such compensation today, the provisions of the Rules on regular and additional holidays approved by the People's Commissariat of Labor of the USSR on April 30, 1930 No. 169. These Rules are valid in part, not contradictory Labor Code of the Russian Federation.
In accordance with paragraph 28 of these Rules and Article 127 of the Labor Code of the Russian Federation, upon dismissal of an employee, not using his right to leave, he is compensated for unused vacation (or for ALL unused vacations). At the same time, FULL compensation is received by employees who have worked from 5.5 to 11 months - if they leave due to staff reduction. Full compensation is accrued in the amount of average earnings for the period of full leave (clause 29 of the Rules).
Subject to compensation rules for unused vacation, regulated by the current legislation, full compensation is payable not only to those employees who, prior to the moment of dismissal, worked for the employer under an employment contract for only 5.5–11 months, BUT ALSO TO THOSE WHO WORKED THE SPECIFIED PERIOD FROM THE BEGINNING OF THE PERIOD FOR THE PROVISION OF ANNUAL PAID VACATION (highlighted by me - INS).
For example, Ivanov, an employee, was employed by organization X on September 1, 2007, and according to the employment contract, he was given an annual paid leave of 28 calendar days. Thus, for the first time, the employer provides Ivanov with leave from September 1, 2007 to August 31, 2008. Vacation for the first year of work was used by Ivanov in July 2008 in full. The next paid leave will be provided to this person for the period from September 1, 2008 to August 31, 2009. In the event that Ivanov worked more than 5.5 months on the day of dismissal due to staff reduction (with the exception of periods that are not grounds for granting holidays), the employer must pay FULL compensation for unused vacation in the period from September 1, 2008 to August 31, 2009 - that is, for 28 calendar days. So, when Ivanov is dismissed from April 1, 2009, if the entire period from September 1, 2008 was honestly worked out by him for the benefit of his “native organization”, he is entitled to full compensation for unused vacation.
At the same time, I explain that this rule does not apply for additional vacations (for work in hazardous conditions, the special nature of work, etc.), since such vacations are provided by the legislator only as compensation for working conditions that deviate from normal.
PhD in Economics Beloglazova L.P. Payouts employees upon dismissal: accounting and taxation// Accounting.- 2009.- No. 11.- P. 5–9.
http://www.buhgalt.ru/ftpgetfile.php?id=319
http://saldo.ru/article.ru.html?pub_id=7851
I quote: “However, if an employee who is dismissed due to a reduction in staff or the liquidation of an organization has worked from 5.5 to 11 months of the working year, then he is paid full compensation for leave upon dismissal.”