Annual paid leave is the rest time necessary for an employee to restore at least to some extent the forces expended on work. Someone is waiting for him in anticipation of a trip with his family to the sea, to the village, etc., while others are not at all happy with the need to use vacation “in kind”, and they would like to receive appropriate monetary compensation instead of vacation time. Does the current law allow it?
When you can not compensate for vacation with money
To clarify the question in which cases vacation days cannot be "converted" into cash in the process labor activity employee, it is necessary to understand the legal regulation of the duration of annual paid leave.current labor law It was established that each employee should be provided with paid leave annually. It consists of a basic paid leave, to which all employees are entitled, and an additional paid leave, which only a few are entitled to.
The minimum possible duration of the annual basic paid leave is 28 calendar days, and it is they who cannot be replaced by a monetary equivalent, i.e., the employee is obliged to “take a day off” for 28 days annually, whether he wants it or not. Replacing this part of the holiday monetary compensation – administrative offense with all the ensuing consequences for the employer, and this must be understood when addressing him with a corresponding request.
The ban on replacing the mandatory (28-day) part of the vacation with monetary compensation will also apply if the employee has not been on vacation for several years and has accumulated a fair amount of vacation days during this time: he will have to take 28 days off for each year of work. That is, if the employee was not provided with leave, for example, for 2 years and, finally, this issue was resolved positively, he will have to gather his strength and rest for 56 days. Take 28 days of vacation, and the rest cannot be demanded with money.
What part of the vacation can be compensated with money
28 calendar days is mandatory minimum annual holiday for all employees. But the current legislation provides for some employees the right to a longer basic leave - the so-called extended basic leave (for example, teaching staff, disabled people of all categories, etc. have the right to such leave). In addition, as mentioned above, in addition to the basic leave for certain categories of employees, the law or internal acts of the employer may provide for additional paid leave (for example, people working in the Far North and equivalent areas have the right to such leave). In these cases, the duration of annual paid leave may be more than 28 days, and then in accordance with Part 1 of Art. 126 of the Labor Code of the Russian Federation, the employee has the opportunity to receive part of the vacation in excess of the mandatory minimum in the form of monetary compensation; You can replace money with any number of days from this part. From this rule in Part 3 of Art. 126 of the Labor Code of the Russian Federation, an exception is made for certain categories of workers: pregnant women and workers under the age of eighteen cannot be replaced with monetary compensation even for part of the vacation exceeding 28 calendar days, and workers employed in jobs with harmful and / or dangerous working conditions are prohibited from being compensated with money the additional vacation he was entitled to for "harmfulness". Other regulatory legal acts may establish prohibitions on exchange for other categories of workers. Thus, a minor worker is obliged to “walk off” all the 31 days of annual basic leave provided for him by labor legislation; an employee working in the regions of the far north can exchange all 24 days of his additional vacation for money, but if such an employee is a pregnant woman, she will have to rest all the vacation days due, even if this does not at all agree with her desire.
So, instead of a part of the annual paid leave exceeding 28 calendar days, the employee (if the corresponding prohibition does not apply to him) can receive monetary compensation. But is this a right for the worker? Labor legislation answers this question in the negative and assesses the possibility of compensating unused vacation money as the right of the employer, not the employee. Therefore, if the former is not interested in such a replacement, the latter has no right to demand it.
This conclusion follows from the analysis of Part 1 of Art. 126 of the Labor Code of the Russian Federation, in which, in relation to the relevant part annual leave the turnover “may be replaced by monetary compensation” is used. In confirmation of its correctness, one can also refer to such an authoritative body as Rostrud, which, in a letter dated March 1, 2007 No. 473-6-0, emphasized that replacing part of the vacation exceeding 28 calendar days is the right, and not the obligation of the employer.
Compensation for unused vacation upon dismissal
If the exchange of vacation for money during the term of the employment contract is associated with serious restrictions, then upon termination of it, compensation for unused annual leave is provided for each dismissed employee, and in this case, the number of days of rest due to the employee, the nature of the work performed by him does not matter. job duties and the state of his health. At the same time, it is the right of the employee to receive such compensation at the final settlement, and it is the obligation of the employer to pay it. The employee may not want to take advantage of this opportunity and ask for unused vacations with subsequent dismissal, but in any case - it is the choice of the employee. Despite the quite unambiguous wording of Part 1 of Art. 127 of the Labor Code of the Russian Federation, which obliges to compensate the leave of each dismissed person, some employers still have questions to Rostrud about the application of this rule in certain situations. From the clarifications given by this department, the following can be noted.
Compensation for unused vacation is paid regardless of the reason for the dismissal of the employee. That is, does the employee quit due to own will, due to the expiration of the employment contract, on the occasion of a reduction in the staff of the organization or for absenteeism, he is still entitled to monetary compensation for "non-vacation" leave. Leave must also be compensated for the employee whose employment contract is terminated due to his recognition as having failed the test.
To receive compensation, it does not matter whether the employee acquired the right to use annual leave by the time of dismissal - whether he has the six months of work required for this. There are also special rules for calculating compensation if the employee has not fully worked out the working year: the number of vacation days for which compensation must be paid is then calculated in proportion to the months worked, while the month worked at least half is taken into account as a whole, t i.e. if at least 15 calendar days are worked in the month of dismissal, compensation must also be paid for it. A month in which less than 15 calendar days are worked is excluded from the calculation.
Thus, in the course of the employment contract, an employee can receive monetary compensation for unused vacation only with the consent of the employer and only if there is a part of the vacation that exceeds 28 calendar days; upon dismissal, leave compensation is paid to all employees, with the exception of those who have worked less than 15 calendar days.
There always comes a moment when an employee becomes interested in the question of whether it is possible to receive compensation for unused vacation, under what circumstances it is due and how to calculate compensation for vacation upon dismissal. Let's try to deal with this problem in more detail, dispelling all doubts.
Right to money
When an employee leaves the organization for any reason, he may have calendar days of the vacation period in reserve that he has not used before. The employee has the statutory opportunity to go and take the remaining number of days off and then say goodbye to the company. Or maybe - and take compensation for unused vacation upon dismissal, which is quite legitimate under the laws of the country. He says about this fact:
- article 127 Labor Code RF;
- Clause 28 of the Rules approved by the NCT of the USSR No. 169 dated April 30, 1930 (hereinafter referred to as Rules No. 169).
Importance of the issue
Information on how to provide yourself with compensation for unused vacation, a person needs to find out in advance in order to dishonest employer did not have the opportunity to violate labor laws by ignoring his right to compensation for leave upon dismissal.
The payroll accountant should be aware of how to calculate compensation for unused vacation. Failure to comply with this action entails the application of certain penalties by the regulatory authorities.
Right to transfer or money
So, it is necessary to understand how an employee could have unclaimed leave, for which compensation is due, and how to count the days of unused time. It is necessary to immediately clarify: non-vacation leave and compensation for it may appear for several reasons. Including, if in the course of the rest prescribed by law, a period has come:
- temporary indisposition for which a sick leave is issued;
- performance of public duties, for the performance of which the employee in normal working conditions has the right to ignore work;
- recall of an employee from the main vacation.
Settlement rules
On the question of how compensation for unused vacation is calculated, it must be said that it is a simple calculation. The amount of funds that an employee of the organization will receive depends on their result. With absence necessary knowledge We invite you to review this issue in more detail.
So, vacation compensation should be calculated for all calendar days that a person did not use as a vacation. This applies to both main and additional holidays. Regardless of its type, the amount of the compensation payment is calculated for all the days due to the employee.
You should not pay much attention to the basis for dismissal: in any situation, both the main and additional vacation periods must be reimbursed in cash.
For the correct calculation of compensation for unused vacation, we will clarify: in a situation in which the year is actually not fully worked out, the calculation of calendar days of the vacation period is carried out in proportion to the period actually worked. So, provided that the employee actually worked less than 11 months without providing rest in this period, the number of calendar days of the vacation period is calculated as follows:
Rest days = 2.33 × full months of work - days off In this formula, 2.33 is a special index. It is calculated as the ratio of the number of required vacation days to the number of months in a year (28/12 = 2.33). As a rule, this indicator in many cases is the standard for employees in the absence of special conditions calculation.
We will guide you on how to calculate leave compensation upon dismissal for such contracts. So, the very formula for calculating the compensation payment remains unchanged. The only thing is that when calculating unused vacation days, they take a coefficient of 2, and not 2.33. Everything else is as described above.
Compensation for unused vacation upon dismissal should be considered in the same way as vacation pay. That is, take average earnings employee for the billing period and multiply this value by the number of days not taken off.
So, in order to calculate compensation for unused vacation associated with dismissal, determine:
1. The duration of the billing period.
2. Employee earnings for the billing period.
3. Average daily earnings.
4. The total amount of compensation for unused vacation upon dismissal.
Special settlement circumstances
Consider the special circumstances of calculating compensation for unused vacation. These include:
- with an experience in the organization of 11 to 12 months, you can count on the entire vacation, as if in fact the year was worked out completely. An exception is an experience equal to 11 months due to rounding off (clause 28 of Regulation No. 169 and Rostrud letter No. 1519-6-1 dated 12/18/2012);
- even if a person actually worked from 5.5 to 11 months, the right to the entire vacation period arises if there are such external factors, as the liquidation of the employer, the reduction of staff, the call for military service etc. This condition for calculating monetary [compensation for unused vacation] should be used only if a person has worked in the company for less than 1 year (clause 28 of Rules 169 and Rostrud letter No. 2368-6-1 of 08/09/2011).
For a more accurate understanding of the mechanism for calculating compensation for unused vacation upon dismissal, consider a specific case.
EXAMPLE
Administrator Vereshchagin decided to dismiss him from Iskra LLC on July 18, 2018. He got a job in this organization on June 01, 2017. According to the schedule, he was granted the main vacation in the amount of 14 days. And according to the regulation on remuneration adopted by the company, the number of non-vacation days of vacation is rounded up to the nearest whole number. The calculated average daily earnings of Vereshchagin amounted to 1,754 rubles.
Read also Line 1230 of the balance sheet: transcript
Having found out the number of actually worked days, we get the following result. Vereshchagin worked:
1 year: 06/01/2017 - 05/31/2017.
1 month: 06/01/2018 - 06/30/2018.
18 days: 07/01/2018 - 07/18/2018.
Based on the fact that the last period has been worked out by more than half, it must be taken as a unit, that is, Vereshchagin's vacation experience is 1 year and 2 months.
Calculate the number of unused vacation days as follows:
28 days + 2.33 × 2 months – 14 days = 18.66 days.
When rounded, according to the regulation on wages, the number of unused vacation days will be 19 full days.
Compensation for non-vacation leave upon dismissal will be:
19 × 1754 = 33,326 rubles.
Keep in mind: having made the calculation, the employer is obliged to transfer monetary compensation in return for vacation at the very moment when the person leaves - on the last day of his presence at the enterprise. At the same time, the rest of the money due to him is paid - salary, bonuses, etc.
Money without subsequent dismissal
Is it possible to receive compensation for unused vacation without dismissal in 2018? It turns out yes. And this is called the replacement of vacation with monetary compensation, which is also enshrined at the legislative level.
Such a situation may arise if a person has a legal right to a vacation period of more than 28 days, and independently expresses a desire for a substitution of this kind. However, it must be taken into account that it is possible to replace a vacation with monetary compensation only within the framework of the number of days in excess of the standard rest. That is, over 28 days.
The subordinate must apply for compensation for unused vacation in excess of the statutory number of days. And the employer, in turn, independently decides whether it is possible to replace the vacation with monetary compensation or send the employee on vacation for all the calculated days.
All this means that h The change of vacation by monetary compensation is permissible in the case when a person is entitled to additional rest, which, according to Art. 126 of the Labor Code of the Russian Federation can be replaced by a sum of money. After all, such a vacation period is provided in addition to the main vacation, the duration of which is 28 days. As regards, for example, study leave, then it cannot be exchanged for money.
Transfer
In a situation where the unclaimed part of the main rest is transferred to next year, compensation for non-vacation leave is also not provided. And this moment is connected with the fact that such days, in fact, are not an excess, since in total for all years actual work they do not exceed the standard 28 days.
The impossibility of replacing money
For some people, the question of whether compensation for unused vacation is due cannot be raised under any circumstances. AT this category includes pregnant women and workers under 18 years of age.
For people employed in harmful or dangerous working conditions, compensation for vacation under the Labor Code of the Russian Federation for additional days of rest is also unacceptable. However, the specified norm of legislation does not affect compensation for unused additional leave upon dismissal.
If an employee is entitled to monetary compensation for unused vacation without dismissal in 2018, in order to carry out this operation in accounting and personnel records, he must write an application for vacation compensation, a sample of which may be as follows.
Application for compensation payment instead of rest days
The application for vacation compensation, the sample of which is presented above, is not a standardized form. That is, it is not enshrined at the legislative level. In order for the compensation for unused leave upon dismissal or when replacing part of the additional leave to be paid, the employee can use this sample or any other developed in the organization.
In the event that the employer decides to satisfy the request from the subordinate, he issues an appropriate order to replace the leave with monetary compensation, a sample of which may look like this.
In Russia, many employees are offered to replace vacation with monetary compensation, but not every employee and employer knows how the legal regulation of this aspect of labor relations is actually ensured. Thus, the replacement of vacation with monetary compensation is by no means allowed in every case - the Labor Code of the Russian Federation strictly limits this area of \u200b\u200blabor relations for the full implementation of the constitutional right of workers to rest. About how vacation is replaced with monetary compensation in 2018 and how this procedure should be known to all parties to the working relationship.
Replacing vacation with monetary compensation under the Labor Code of the Russian Federation - legal grounds
The right of all workers to rest is one of the fundamental constitutional rights related to labor relations in Russia. It is enshrined in Article 37 of the Constitution. That is why the replacement with monetary compensation is not allowed in many cases - since such a replacement, although it can be carried out in the interests of employers or employees, can also lead to a lack of rest for the worker. However, the Constitution does not regulate the direct legal mechanisms that implement the implementation of this right.
Directly to replace vacation with payments and ensure legal regulation The aforementioned procedure is influenced, first of all, by the following provisions of the Labor Code of the Russian Federation:
- Article 21. It establishes the basic rights of the employee and duties. And rest is one of those rights.
- Art.115. The aforementioned article strictly regulates the duration of employee vacations, which must be at least 28 calendar days a year.
- Art.116. This article discusses the concept provided to employees - they can be issued both in without fail and at the request of the employer.
- Art.124. Its principles relate to the possibility of vacation for another year - the legislation provides employers and employees with such an opportunity.
- Art.126. The provisions of the said article directly regulate the possible replacement of vacation with monetary compensation and establish the conditions for carrying out the said replacement, as well as the main limitations of this procedure.
- Art.127. This article is considered as one of the special cases of replacing vacation with monetary compensation.
In addition to the above articles of the Labor Code of the Russian Federation, other norms of the Labor Code, as well as other regulatory legal acts that affect the specifics of conducting specific types of activities and the procedure for granting additional holidays, also affect the replacement of vacation with monetary compensation.
When is it allowed to replace vacation with monetary compensation in 2018
Russian legislation, according to Art. 126 of the Labor Code of the Russian Federation, allows you to replace holidays with direct compensation, but subject to certain restrictions for employers and workers. Thus, it is allowed to replace vacation with monetary compensation in 2018 in relation to that part of it that exceeds the standard mandatory 28 calendar days.
That is, if a worker is entitled to additional holidays, he can replace them with compensation in money. So, you can replace the leave granted for the following reasons:
Additional holidays provided for cannot be replaced by monetary compensation if they are provided in the minimum amount provided for by law - it is at least 7 days of additional leave. If the employer provides special holidays in larger amounts than the mandatory, then this additional part can be compensated. in cash.
In addition, two more categories of workers can be distinguished for whom the considered replacement of vacation is unacceptable, namely:
- Underage employees. The provisions of Article 126 of the Labor Code of the Russian Federation do not allow the replacement of holidays for underage workers basically.
- Pregnant women. For pregnant women, there is also no legal opportunity to exchange leave for compensation.
The procedure for replacing vacation with monetary compensation in 2018
Vacation compensation while working is a right, not an obligation – and this right applies to both parties to an employment relationship. However, the initiator of such a replacement can only be a worker. That is, the payment of funds instead of vacation can be carried out only on the basis of an application from an employee approved by the employer. The employer himself cannot require employees to replace the holidays they are entitled to with compensation and carry out the said replacement without their consent.
In general, the procedure for providing a replacement for vacation with money is quite simple:
We all know that annual paid leave or part of it can be replaced by monetary compensation. Meanwhile, not everything is so simple - sometimes the employer is simply obliged to refuse to pay compensation to the employee, and sometimes he does not even need the employee's statement. After reading the article, you will find out in which cases vacation can be replaced with compensation, for which employees such a replacement cannot be made, how to document the replacement of part of the vacation with monetary compensation, how to calculate compensation for unused vacation upon dismissal.
The Labor Code provides for two cases of replacing vacation with monetary compensation:
- Art. 126 establishes that part of the annual paid leave exceeding 28 calendar days, upon a written application of the employee, can be replaced by monetary compensation;
- Art. 127 determines that upon dismissal, the employee is paid monetary compensation for all unused vacations.
Compensation for part of the vacation during work
So, consider the first option for replacing vacation with monetary compensation - in accordance with Art. 126 Labor Code of the Russian Federation.On the basis of this article, employees who are entitled to extended vacations (teachers (teachers ( Art. 334 of the Labor Code of the Russian Federation), disabled people ( Art. 23 of Law no. 181-FZ), minors, etc.) or additional holidays (for irregular working hours ( Art. 119 Labor Code of the Russian Federation), harmful or dangerous working conditions ( Art. 117 Labor Code of the Russian Federation), work in the regions of the Far North and equivalent areas ( Art. 321 of the Labor Code of the Russian Federation), athletes and coaches ( Art. 348.10 of the Labor Code of the Russian Federation), medical workers ( Art. 350 of the Labor Code of the Russian Federation)).
First of all, we note that this rule gives the employer the right, but does not oblige him to pay such compensation to the employee. That is, the employer can refuse the employee and provide him with leave in full.
A prerequisite for the payment of compensation is the application of the employee. Yes, Astrakhan regional court changed the decision of the district court, by which compensation was collected from the employer for the part of the vacation that exceeded its normal duration. In particular, the regional court pointed out that in order for the employer to have an obligation to pay the employee monetary compensation instead of unused vacation in excess of the normal duration, the employee must apply to the employer with a statement of the appropriate content. As established by the court, the employee did not apply with such a statement, and his appeal to the court with a claim for payment of monetary compensation instead of granting the actual vacation cannot replace his appeal to the employer with a corresponding statement. Thus, the obligation to pay monetary compensation from the employer did not arise ( The appeal ruling of the Astrakhan Regional Court dated December 12, 2012 in case No. 33‑3535/2012 ).
But even if the employer agrees to replace part of the vacation with compensation, he must refuse workers of some categories. Yes, according to Part 3 Art. 126 Labor Code of the Russian Federation it is not allowed to replace the annual basic paid leave and annual additional paid holidays with monetary compensation:
- pregnant women;
- employees under the age of 18.
The annual additional paid leave granted to the employee on the basis of paragraph 5 of Art. fourteenLaw of the Russian Federation of May 15, 1991 No. 1244-1 "Oh social protection citizens exposed to radiation as a result of a catastrophe at Chernobyl nuclear power plant”, due to the fact that this law does not provide for the possibility of such compensation ( Letter of the Ministry of Labor of the Russian Federation of March 26, 2014 No.13‑7/B-234).
In addition, additional paid leave for work in harmful or dangerous conditions cannot be replaced. However, the following must be taken into account. By virtue of Part 2 Art. 117 Labor Code of the Russian Federation minimum duration annual additional paid leave for employees working in such conditions is 7 calendar days. Meanwhile, if an employee is entitled to leave of a longer duration, for example, 10 days, then by virtue of Part 4 Art. 117 Labor Code of the Russian Federation on the basis of an industry (inter-sectoral) agreement and collective agreements, as well as the written consent of the employee, drawn up by concluding a separate agreement to the employment contract, a part of the annual additional paid leave exceeding 7 days can be replaced by a separately established monetary compensation in the manner, in the amount and for conditions that are determined by the industry (inter-sectoral) agreement and collective agreements. That is, in our example, an employee can count on compensation for 3 days of additional leave for work in harmful or dangerous conditions.
Suppose an employee did not use vacation for the previous period, but in the current year he decided to take 56 days of vacation at once. At the same time, he wrote a statement with a request to replace part of the vacation, exceeding 28 days, with monetary compensation. The question arises: is it possible to compensate anything at all, and if so, how much? And the answer is in Part 2 Art. 126 Labor Code of the Russian Federation: when summing up annual paid holidays or postponing annual paid holidays to the next working year, a part of each annual paid holiday exceeding 28 calendar days, or any number of days from this part, can be replaced with monetary compensation. Therefore, in this example, the employee is not entitled to monetary compensation, the employer is obliged to provide 56 calendar days of annual leave.
Let's consider another situation that deserves attention. If an employee is entitled to extended leave (for example, 42 calendar days as teacher), can he expect compensation? On the one hand, extended leave is the same guarantee for certain categories of workers as 28 days for everyone else. And the courts say that the law does not provide for the replacement of the main annual paid leave with monetary compensation (see, for example, Determination of the Moscow City Court of December 26, 2011 No. 33‑41006 ). On the other hand, Art. 126 Labor Code of the Russian Federation allows you to replace with compensation part of the annual leave exceeding 28 calendar days. Of course, "basic paid leave" and "annual paid leave" are different concepts, because the latter consists of the main and other types of holidays. And if we proceed from the terminology, then the employer is not entitled to replace 14 days (42 - 28) of vacation. But since there are no clarifications of officials on this issue so far, a practice has developed in which employers satisfy the request of the employee and compensate in cash for a part of the extended vacation that exceeds 28 days.
For clarity, we give an example of calculating the number of days to be compensated.
I. I. Ivanov works as a packer cosmetics from 15.09.2012. He is entitled to 30 calendar days of basic paid leave as a disabled person of group III. In the first working year, he used 20 days of vacation, in the second - 21 days. How many vacation days can he replace with monetary compensation?
For two full years of work, I.I. Ivanov has the right to 60 calendar days of vacation, but he used only 41 days (20 + 21). Meanwhile, I.I. Ivanov has the right to replace with compensation only part of the vacation exceeding 28 days ( Art. 126 Labor Code of the Russian Federation). That is, he can apply to the employer with an application for compensation for 4 days of vacation (2 days for each year of work), and he will have to take the remaining 15 days of vacation (28 + 28 - 41).
Let's talk briefly about the payment of compensation. In order for part of the vacation to be replaced by compensation, the employee must apply to the employer with a corresponding application. The employer, on the basis of such an application and when deciding on the payment of compensation:
1. Issues an order , which might look like this (see sample on page).
Regarding the calculation of compensation, we say the following. Monetary compensation for the part of the vacation that exceeds 28 calendar days is determined by multiplying the average daily earnings calculated according to the rules for calculating vacation pay by the number of days replaced by compensation.
Society with limited liability"Winter"
LLC "Zima")
On the replacement of part of the vacation with monetary compensation
In accordance with Art. 126 of the Labor Code of the Russian Federation
I ORDER:
To replace with monetary compensation part of the annual paid leave granted for the period of work from 09/15/2013 to 09/14/2014, exceeding 28 calendar days in the amount of 2 days to the packer Ivan Ivanovich Ivanov.
Reason: statement by I.I. Ivanov dated 11/11/2014.
Director Tsarev P. P. Tsarev
2. Entering information into a personal card (see an example below) and vacation schedule (column 10 "Note" is filled in).
VIII. VACATION
| Type of vacation (annual, educational, without saving wages and etc.) | Work period | Number of calendar days of vacation | the date | Base | ||
| With | on | start | graduation | |||
| 1 | 2 | 3 | 4 | 5 | 6 | 7 |
| Annual main | 15.09.2013 | 14.09.2014 | 28 | 01.10.2014 | 28.10.2014 | Order from |
| paid | 24.09.2014 | |||||
| № 20 | ||||||
| Annual main | 15.09.2013 | 14.09.2014 | 2 | Replacement | holidays | Order from |
| paid | monetary | compensation | 13.11.2014 | |||
| № 25 | ||||||
Based Art. 139 of the Labor Code of the Russian Federation and Regulations on the peculiarities of the procedure for calculating the average wage approved Decree of the Government of the Russian Federation of December 24, 2007 No. 922 , the average daily earnings for vacation pay and compensation for unused vacation are calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and by 29.3 (average monthly number of calendar days).
Let's use the conditions of example 1. II Ivanov is supposed to compensate for 2 days of vacation. The salary of I. I. Ivanov is 20,000 rubles, the billing period has been worked out completely.
Billing period - from 01.11.2013 to 31.10.2014.
The average daily earnings of I. I. Ivanov will be 682.59 rubles. ((20,000 rubles x 12 months) / 12 months / 29.3). Compensation for the part of the vacation exceeding 28 calendar days will be equal to 1,365.18 rubles. (682.59 rubles x 2 days).
Retirement Compensation
We repeat that upon dismissal, all unused vacations are subject to compensation ( Part 1 Art. 127 Labor Code of the Russian Federation).Before calculating the number of vacation days to be compensated, and, accordingly, the amount of compensation, it is worth remembering that all unused vacations can be granted to an employee with subsequent dismissal (with the exception of cases of dismissal for guilty actions). In this case, the day of dismissal is considered the last day of vacation. But keep in mind that the employee must write a statement with a corresponding request, and the employer should not mind the employee taking vacations.
Note
The employer has no obligation to provide leave followed by dismissal, even if the employee asked for it in writing.
Some employers, when considering an application for a vacation with subsequent dismissal from an employee working under a fixed-term employment contract, immediately refuse, as they are afraid that fixed-term contract transforms into indefinite: leave will go beyond the end of the contract and then it will be impossible to dismiss the employee ... This opinion is erroneous. Part 3 Art. 127 Labor Code of the Russian Federation determines that in the event of dismissal due to the expiration of the term of the employment contract, leave with subsequent dismissal may also be granted when the time of leave completely or partially goes beyond the term of this contract. In this case, the day of dismissal is also considered the last day of vacation.. However, on the last working day when the employer must issue work book, make the final settlement with the employee and take other actions related to the dismissal, will be the last working day before the start of the vacation.
That is why, when granting leave with subsequent dismissal upon termination of the employment contract at the initiative of the employee, the latter has the right to withdraw his application for dismissal before the day the vacation begins, if another employee is not invited to his place in the transfer order.
If the employee did not express a desire to use the leave with subsequent dismissal or the employer is against it, we proceed to the calculation of the days to be compensated.
How to determine the number of days of unused vacation? The Labor Code does not establish the procedure for their calculation. Therefore, employers still focus on Rules on regular and additional holidays approved NCT of the USSR 04/30/1930 No. 169 (valid in the part that does not contradict the Labor Code of the Russian Federation), and clarifications of the Ministry of Labor.
Yes, according to 28 these Rules employees who are dismissed for any reason and who have worked for this employer at least 11 months creditable against leave-entitlement work are fully compensated. According to this rule, if an employee, for example, worked for a year and 11 months and did not use his vacation, he is entitled to compensation of 56 calendar days (28 days for the first year of work and 28 for the second).
Full compensation (that is, for 28 days) is also received by employees who have worked from 5.5 to 11 months if they leave due to:
- liquidation of the organization or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work;
- entry into active military service.
Note!
To determine the number of days to be compensated upon dismissal of an employee, a working year is taken, which is different for each employee and begins to run from the date of employment, and not a calendar year.
In all other cases, workers receive proportional compensation. Thus, proportional compensation is received by those who have worked from 5.5 to 11 months if they leave for any other reasons than those indicated above (including voluntarily), as well as all those who have worked for less than 5.5 months, regardless of the reasons layoffs.
To calculate, you need to determine how many days of vacation the employee is entitled to per month. To do this, we divide 28 vacation days by 12 and get 2.33 days per month.
The employee has been working in the organization since 10.03.2011. He was on annual paid leave in 2012 - 21 calendar days, in 2013 - 16, in 2014 - 21. He quits on 07/08/2014. For how many days of unused vacation is he entitled to compensation?
For the period of work:
- from 03/10/2011 to 03/09/2012 - he is entitled to 28 days;
- from 03/10/2012 to 03/09/2013 - 28;
- from 03/10/2013 to 03/09/2014 - 28.
If an employee quit in the situation described in the example a little earlier, for example, on June 22, 2014, he would receive compensation for fewer days of unused vacation. And that's why. According to clause 35 of the Rulesexcesses amounting to less than half a month are excluded from the calculation, and surpluses amounting to at least half a month are rounded up to the nearest full month. Thus, the departing employee would have to be compensated for 28.99 days (22 + (2.33 x 3 months)).
Many will have difficulty: what to do with the numbers after the decimal point? Unfortunately, the legislator has not settled this issue, so rounding is at the discretion of the employer. However, if there is a desire to make such a decision, it must be taken into account that rounding here is not carried out according to the rules of mathematics, but in favor of the employee ( Letter of the Ministry of Health and Social Development of the Russian Federation dated 07.12.2005 No. 4334‑17 ). That is, if an employee, as we have in example 3, is entitled to 31.32 days, then compensation will need to be paid for 32 days.
Note!
Even if an employee has worked for a month or two, he is still entitled to compensation for unused vacation (according to clause 35 of the Rules if the employee has worked for more than half a month, then he is already entitled to compensation).
Note that if an employee is provided with an extended annual paid leave by labor legislation (leave of longer duration - for pedagogical and medical workers, disabled people, etc.), then the calculation of the number of days of unused vacation should be done as follows. For example, a teacher is entitled to 56 calendar days of annual paid leave, and he worked for 7 months. Then, upon dismissal, he needs to compensate for 32.66 days (56 / 12 x 7).
When calculating the number of days of unused vacation, it is important to correctly determine the length of service for granting vacation. Why?
According to Art. 121 Labor Code of the Russian Federation the length of service giving the right to annual basic paid leave includes the time:
- actual work;
- when the employee did not actually work, but in accordance with labor legislation, the place of work (position) was retained for him, including the time of annual paid leave, non-working holidays, days off and other days of rest provided to the employee;
- forced absence from illegal dismissal or suspension from work and subsequent reinstatement in the previous job;
- suspension from work of a person who has not passed the mandatory medical checkup through no fault of their own;
- leave granted at the request of the employee without pay, not exceeding 14 calendar days during the working year.
Example 4
The employee was accepted into the organization on 10/25/2013. In March 2014, he was granted 21 days of unpaid leave. The employee leaves in November 2014, the last working day is the 13th. For how many days of unused vacation is compensation due?
The working year of the employee, for which annual paid leave is due, is from 10/25/2013 to 10/24/2014. Since only 14 calendar days are included in the length of service giving the right to leave unpaid leave, the end of the employee's working year will have to be "shifted" by a number of days exceeding 14 - by 7. Thus, the working year will be from 10/25/2013 to 10/31/2014.
From November 1 to November 13, the employee worked for another 13 days, but we do not take them into account, since due to clause 35 of the Rules surpluses amounting to less than half a month are excluded from the calculation.
Since the employee is entitled to 28 days of vacation per working year, it is precisely this number that is subject to compensation.
In addition, we note: if the employee did not take such a long "administrative", then 30.33 (28 + 2.33) would have to be compensated, since from 10/25/2013 to 11/13/2014 he worked for a year and 20 days, and, as we know , surpluses amounting to more than half a month are rounded up to the nearest full month.
Compensation for part-time workers
Sometimes the question arises of paying compensation for unused vacation to part-time workers. Some of them are not paid compensation at all, and some are paid only if the worker works for external combination(from another employer). Meanwhile, according to Art. 287 of the Labor Code of the Russian Federation Guarantees and compensations provided for by labor legislation, collective agreements, agreements and local regulations are provided to part-time workers in full. Therefore, part-time workers have the right to count on compensation for unused leave upon dismissal in the same way as employees at their main place of work, and the type of part-time job (internal or external) does not play a role. This is also mentioned in clause 31 of the Rules.Summarize
In conclusion, I would like to say that it is possible to replace with monetary compensation not only the main unused vacation, but also an additional one. For example, if during work, additional leave for harmful conditions cannot be replaced by monetary compensation, then upon dismissal, the employer is obliged to make such a replacement. And remember that the payment of compensation upon dismissal must be made on the last working day of the employee ( Art. 140 of the Labor Code of the Russian Federation). But the deadlines for paying compensation for part of the vacation exceeding 28 calendar days are not established by law during work, so we recommend fixing them in the local normative act organization that sets the wage rules.New edition Art. 126 Labor Code of the Russian Federation
When summing up annual paid holidays or postponing annual paid holidays to the next working year, a part of each annual paid holiday exceeding 28 calendar days, or any number of days from this part, can be replaced by monetary compensation.
It is not allowed to replace with monetary compensation the annual basic paid leave and annual additional paid leaves for pregnant women and employees under the age of eighteen years, as well as the annual additional paid leave for employees employed in jobs with harmful and (or) dangerous working conditions, for work in appropriate conditions. (with the exception of payment of monetary compensation for unused vacation upon dismissal, as well as cases established by this Code).
Commentary on Article 126 of the Labor Code of the Russian Federation
Article 126 of the Labor Code of the Russian Federation now resolves the question of what part of the vacation is to be replaced by monetary compensation in a situation where vacations are summed up over several years, it is proposed to establish that "a part of the annual paid vacation exceeding 28 calendar days, upon a written application of the employee, can be replaced by monetary compensation ". As a result, the practice of compensating for vacations left by employees from previous years should stop.
By agreement between the employee and the employer, annual paid leave may be divided into parts. At the same time, at least one of the parts of this vacation must be at least 14 calendar days.
Recall of an employee from vacation is allowed only with his consent. Such a recall may take place for production reasons. The legislator does not establish the form of such consent. In order to avoid misunderstandings, it is advisable for the employer to obtain such consent of the employee in writing. A recall from vacation is issued by an order (instruction) of the employer, in which, by agreement of the parties, it is indicated when the unused part of the vacation will be provided to the employee.
The part of the vacation not used in connection with this must be provided at the choice of the employee at a time convenient for him during the current working year or added to the vacation for the next working year.
Employees under the age of eighteen, pregnant women and employees employed in work with harmful and (or) dangerous working conditions are not allowed to be recalled from vacation (Article 125 of the Labor Code of the Russian Federation).
Labor legislation allows the replacement of annual paid leave with monetary compensation.
Part of the annual paid leave, exceeding 28 calendar days, at the written request of the employee may be replaced by monetary compensation.
When summing up annual paid holidays or postponing paid holidays to the next working year, a part of each annual paid holiday exceeding 28 calendar days, or any number of days from this part, can be replaced by monetary compensation.
Another commentary on Art. 126 of the Labor Code of the Russian Federation
1. Article 126 of the Labor Code of the Russian Federation allows the replacement of annual paid leave with monetary compensation. Since only that part of the vacation that exceeds 28 calendar days can be replaced with monetary compensation, it is possible to replace part of the vacation with monetary compensation if the employee is entitled to an extended vacation or additional vacation (additional vacations).
2. In the event of simultaneous granting of leave for two years or more (see Article 124, Part 2 of Article 125 of the Labor Code of the Russian Federation and commentary thereto), parts of each annual paid leave exceeding 28 calendar days may be replaced by monetary compensation , or any number of days from these parts. Thus, for each working year, the employee must actually use at least 28 calendar days of vacation.
3. From the text of Art. 126 of the Labor Code of the Russian Federation it follows that in order to replace the corresponding part of the vacation with monetary compensation, a written application from the employee is not enough, the consent of the employer is also required, which may, but is not obliged to replace part of the vacation with monetary compensation.
4. Replacement of annual paid leave, both basic and additional, with monetary compensation for pregnant women and employees under the age of 18 is not allowed.
5. With regard to the replacement of leave with monetary compensation for employees employed in work with harmful and (or) dangerous working conditions, Part 3 of Art. 126 of the Labor Code of the Russian Federation (as amended federal law dated June 30, 2006 N 90-FZ) created some uncertainty: this rule prohibits monetary compensation for this category of workers only for additional paid leave for work in appropriate conditions, leaving open question on the possibility of monetary compensation for the main paid vacation and other additional vacations. Based on the requirements of labor protection, monetary compensation for this category of workers on the main paid leave would lead to the loss of the meaning of providing them with additional leave for work in harmful and (or) dangerous working conditions.