Compensation for unused vacation upon dismissal example. Compensation for unused vacation: the procedure and features of accrual

19.10.2019

As practice shows, when calculating the number of days of unused vacation for which the employer must pay monetary compensation, a number of questions arise, for example, how to correctly calculate the number of days, as well as what periods are included in the length of service to calculate the number of vacation days. We will answer these and many other questions on the basis of practical examples.

Let's start with the fact that according to Art. 114 of the Labor Code of the Russian Federation, employees are granted annual leave while maintaining their place of work (position) and average earnings. According to Art. 122 of the Labor Code of the Russian Federation, the right to use leave for the first year of work arises for the employee after six months of his continuous work in this organization. By virtue of Art. 127 of the Labor Code of the Russian Federation upon dismissal, the employee is paid monetary compensation for all unused vacations. At the same time, at the written request of the employee, unused vacations can be granted to him with subsequent dismissal (with the exception of cases of dismissal for guilty actions). The day of dismissal is considered the last day of vacation.

Note: upon dismissal, the employee is paid monetary compensation for all unused vacations. At the same time, it does not matter whether the employee received the right to annual paid leave (letters of Rostrud dated June 23, 2006 No. 944-6, dated October 31, 2008 No. 5921-TZ).

Cash compensation for all unused vacations is paid on the day the employee leaves. If the employee did not work on the day of dismissal, the corresponding amounts must be paid to him no later than next day after the laid-off employee presents a demand for settlement (Article 140 of the Labor Code of the Russian Federation).

Information for determining the number of vacation days

When calculating the number of unused vacation days, the following data is required:

the duration of the employee's vacation period (number of years, months and calendar days);

the number of vacation days due to the employee for the entire time of work;

the number of unused vacation days.

Vacation experience

Article 121 of the Labor Code of the Russian Federation states that the length of service giving the right to annual basic paid leave includes :

1) time of actual work;

2) the time when the employee did not actually work, but in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, the place of work (position) was retained, including time of annual paid vacation, non-working holidays, days off and other days of rest provided to the employee;

3) time of forced absenteeism in case of illegal dismissal or removal from work and subsequent reinstatement at the previous job;

4) the period of suspension from work of an employee who has not undergone a mandatory medical examination through no fault of his own;

5) the time of leave granted at the request of the employee without saving wages not exceeding 14 calendar days during the working year.

The length of service giving the right to annual basic paid leave does not include :

1) the time the employee was absent from work without good reason, including as a result of his suspension from work in the cases provided for in Art. 76 of the Labor Code of the Russian Federation. This article states that the employer is obliged to remove from work (not allow to work) the employee:

appeared at work in a state of alcoholic, narcotic or other toxic intoxication;

who has not undergone training and testing of knowledge and skills in the field of labor protection in the prescribed manner;

who has not passed the mandatory medical examination in accordance with the established procedure, as well as the mandatory psychiatric examination in cases provided for by this code, other federal laws and other normative legal acts of the Russian Federation;

if, in accordance with a medical report issued in accordance with the procedure determined by federal laws and other regulatory legal acts of the Russian Federation, contraindications are revealed for the employee to perform work stipulated by an employment contract;

in the event of suspension for a period of up to two months of an employee’s special right (license, right to manage vehicle, the right to bear arms, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation;

at the request of bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation;

in other cases provided for by the Labor Code, other federal laws and other regulatory legal acts of the Russian Federation;

2) the period of parental leave until the child reaches the legal age.

In the length of service, giving the right to additional annual paid leave for work with harmful and (or) hazardous conditions labor, includes only the time actually worked in the relevant conditions.

When determining the vacation period, it is also necessary to use the Rules on regular and additional holidays approved by the USSR TNKT dated April 30, 1930 No. 169 (hereinafter referred to as Rules No. 169).

Note: these rules are currently applied to the extent that they do not contradict labor legislation (Article 423 of the Labor Code of the Russian Federation).

The number of vacation days due to the employee for the entire time of work

According to Art. 115 of the Labor Code of the Russian Federation for each year of work, an employee is entitled to 28 calendar days of vacation. When determining the number of vacation days that a resigning employee is entitled to, it must be remembered that:

the working year is 12 full months and, unlike the calendar year, is calculated not from January 1, but from the day the employee enters work for a specific employer. In accordance with clause 1 of Rules No. 169, regular leave is granted once during the year the employee works with this employer, counting from the date of entry to work, that is, once in the working year (Letter of Rostrud dated 08.12.2008 No. 2742-6-1) ;

if the working year is not fully worked out, compensation is paid for unused vacation days in proportion to the months worked. This is enshrined in paragraphs 28 and 29 of Regulation No. 169 (Letter of Rostrud dated 08/09/2011 No. 2368-6-1);

when the working year is not fully worked out, vacation days for which compensation must be paid are calculated in proportion to the months worked. At the same time, surpluses that make up less than half a month are excluded from the calculation, and surpluses that make up at least half a month are rounded up to a full month (clause 35 of Regulation No. 169);

Calculated in accordance with Art. 139 of the Labor Code of the Russian Federation based on the calculation of 2.33 days (28 days / 12 months) of vacation for one month of work (letters of Rostrud dated 06/23/2006 No. 944-6, dated 10/31/2008 No. 5921-TZ);

when determining the number of calendar days of unused vacation payable, their rounding is not provided for by law. However, if the organization decides to pay compensation for full days vacation, then rounding up to whole days should be carried out not according to the rules of arithmetic, but in favor of the employee. For example, an employer must compensate an employee for unused vacation per Last year work lasting 20.4 calendar days. They are rounded up to 21 calendar days, and not to 20 calendar days (Letter of the Ministry of Health and Social Development of the Russian Federation of December 7, 2005 No. 4334-17).

In addition to all of the above, we would like to draw your attention to clause 28 of Regulation No. 169, which states that employees who are dismissed for any reason and who have worked with the employer for at least 11 months, subject to offset in the period of work, giving the right to leave, receive full compensation. Employees who have worked from 5.5 to 11 months also receive full compensation if they leave due to:

liquidation of an enterprise or institution (its separate parts), reduction of staff or work, as well as reorganization or temporary suspension of work;

receipts for real military service;

business trips in accordance with the established procedure to universities, technical schools, workers' faculties, preparatory departments at universities and training courses for universities and workers' faculties;

transfer to another job at the suggestion of the labor authorities or the commissions attached to them, as well as party, Komsomol and professional organizations;

found unfit for work.

In all other cases, workers receive proportional compensation. Thus, proportional compensation is paid to employees who have worked from 5.5 to 11 months if they leave for any other reason than the above (including own will), as well as all employees who have worked less than 5.5 months, regardless of the reason for dismissal.

For your information: if it is concluded with an employee for a period of up to two months, he is granted paid leave or paid at the rate of two working days per month of work (Article 291 of the Labor Code of the Russian Federation).

If the employee worked for the organization long time and, accordingly, went on vacation, the number of unused vacation days is determined as follows:

The result may be zero or even a negative result. This means that there is no need to pay compensation to the employee, since he has already fully used his vacation for the last working year.

Here are examples of calculating the number of vacation days.

Example 1

The employee worked in the organization from 01/09/2017 to 11/30/2017. For how many days of unused vacation should he be paid compensation?

It follows from the conditions of the example that the employee worked in the organization for 10 months and 21 days. In accordance with paragraph 35 of Regulation No. 169, 21 days are rounded up to a full month, which means that the employee has worked for 11 months. Therefore, he is entitled to full compensation for 28 calendar days (clause 28 of Regulation No. 169). Similar clarifications are given in the letters of Rostrud dated March 4, 2013 No. 164-6-1, the Ministry of Labor of the Russian Federation dated October 28, 2016 No. 14-1 / V-1074.

Example 2

The employee worked in the organization from 07/03/2017 to 10/17/2017. Should the employer pay him compensation for unused vacation if the employee did not work the six months required for receiving annual leave? Determine the number of days of unused vacation.

According to Art. 122 of the Labor Code of the Russian Federation, the right to use leave for the first year of work arises for the employee after six months of his continuous work in this organization. Upon dismissal, the employee is paid monetary compensation for all unused vacations. It does not matter whether the employee received the right to annual paid leave. Such clarifications are presented in the letters of Rostrud dated June 23, 2006 No. 944-6, dated October 31, 2008 No. 5921-TZ.

Under the terms of the example, the employee worked in the organization for 3 months and 14 days. In this case, applying Clause 35 of Regulation No. 169, 14 days are discarded, therefore, compensation must be paid for 3 months. The number of days of unused vacation will be 6.99 days (2.33 days x 3 months). If rounding is accepted in the organization, compensation is paid for 7 days of unused vacation.

Example 3

The employee worked in the organization from 09/01/2010 to 05/31/2017. During this time, he was on annual leave for 170 calendar days. For how many days is he entitled to compensation for unused vacation upon dismissal (taking into account rounding), if there were no periods not included in the vacation period?

For the period from 09/01/2010 to 05/31/2017, the employee worked for 6 years and 9 months. For the time worked, the employee was entitled to annual leave of 188.97 days (6 years x 28 days + 9 months x 2.33 days). We round up the number of days of annual leave to 189 days. Thus, upon dismissal, an employee is entitled to compensation for 19 days of vacation (189 - 170).

Example 4

The employee was hired by the organization on 05/10/2013. On November 1, 2013, she was granted maternity leave, and then parental leave. After that, she was again granted the specified leave in connection with the birth of the next child, the last leave ended on 09/04/2017. On the same day, she was dismissed of her own free will. Let's calculate the number of days of unused vacation for which she is entitled to compensation.

The employee worked in the organization from 05/10/2013 to 10/31/2013, that is, 5 months and 21 days. According to clause 35 of Regulation No. 169, 21 days are rounded up to a full month, which means that it turns out 6 months. During these months, she is entitled to 13.98 calendar days of vacation (2.33 calendar days x 6 months).

Article 121 of the Labor Code of the Russian Federation provides that the period of maternity leave is included in the length of service giving the right to receive leave, but the period of leave to care for a child until he reaches the age established by law is not included in the specified length of service. Therefore, the employee needs to pay compensation for another 11.67 calendar days of leave (28 cal. days / 12 months x 5 months), where 5 months is the period the woman is on maternity leave, which is 140 calendar days .

Thus, the employee needs to pay compensation for unused vacation at the rate of 37.32 calendar days (6 months x 2.33 calendar days + 11.67 calendar days x 2), where 11.67 is the number of days that due to her for maternity leave (and the employee had two such holidays). If rounding is established in the organization, it must be done in favor of the employee. This means that she is entitled to compensation for 38 calendar days of vacation.

Example 5

An employee is entitled to 56 calendar days of vacation per year. When does he have the right to full compensation for unused vacation?

According to paragraph 28 of Regulation No. 169, with a vacation duration of 28 calendar days, an employee who has worked for 11 months is entitled to receive full compensation. Consequently, with longer holidays, the right to full compensation comes earlier. A working year is a period equal to 12 calendar months. It includes the time of actual work, as well as other periods established by Part 1 of Art. 121 of the Labor Code of the Russian Federation. In this case, the first working year begins on the day when the employee is hired. The working year also includes the time of annual paid leave.

Thus, when calculating the number of days of unused vacation to determine the amount of compensation upon dismissal, the duration of the annual paid vacation matters. If the vacation is 56 calendar days, in order to be entitled to the vacation in full, in the working year the employee must work 12 months minus 56 calendar days, that is, 309 calendar days (365 - 56).

Therefore, an employee who has an annual paid leave of 56 calendar days established by labor legislation is entitled to full compensation if he has worked in the organization for 10 months and 6 days.

If the duration of annual leave is 42 calendar days, in order to receive full compensation upon dismissal, the employee must work 10 months and 19 days (365 - 42).

Example 6

The employee worked in the organization from 05/10/2017 to 10/31/2017. Upon employment, he was entitled to leave of 42 calendar days. From 09/01/2017, the employee is transferred to a position for which he is entitled to leave of only 28 calendar days. How to determine the number of days of unused vacation upon dismissal in this case?

So, to calculate the number of vacation days to be compensated to the employee upon dismissal, the period of work must be divided into periods of work for different positions:

from 05/10/2017 to 08/31/2017, the employee worked in a position for which leave is granted for 42 calendar days. Therefore, to calculate the number of days for this period, you need to divide 42 calendar days of annual leave by 12 (the number of months in a year), that is, for each month worked in this position, the employee is entitled to a vacation of 3.5 days. He worked in this position for 3 months and 20 days. According to paragraph 35 of Regulation No. 169, 20 days are rounded up to a full month, which means that compensation must be paid for 4 months, that is, for 14 calendar days (3.5 days x 4 months);

from 09/01/2017 to 10/31/2017 he worked in a position for which the duration of the vacation is 28 calendar days. Accordingly, to calculate the number of days for this period, it is necessary to divide 28 calendar days of annual leave by 12 (the number of months in a year), that is, for each month worked in this position, the employee is entitled to a vacation of 2.33 days. He worked in this position for 2 months, which means that compensation must be paid for 4.66 calendar days (2.33 days x 2 months).

Therefore, 18.66 vacation days are subject to compensation (14 + 4.66). The number of calendar days of unused vacation, at the discretion of the employer, may be rounded in favor of the employee up to 19 days.

As for the calculation of the compensation itself for unused vacation days, when calculating vacation pay, first of all, you need to remember the provisions of Art. 139 of the Labor Code of the Russian Federation. It says that for all cases of determining the size of the average wage (average earnings) provided for by the Labor Code, a single procedure for its calculation is established. Currently, the Regulations on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922, are in force.

When calculating the average wage, all types of payments provided for by the wage system applied by the relevant employer are taken into account, regardless of the sources of these payments. Also, in any mode of work, the calculation of the average salary of an employee is based on the salary actually accrued to him and the time he actually worked for the 12 calendar months preceding the period during which the employee retains the average salary. In this case, the calendar month is the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive).

As for the calculation of the average daily earnings for vacation pay and compensation for unused vacation, it is calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and 29.3 (average monthly number of calendar days). In addition, the average daily wage for paying for vacations provided in working days, in cases provided for by the Labor Code, as well as for paying compensation for unused vacations, is determined by dividing the amount of accrued wages by the number of working days according to the six-day calendar. working week.

In conclusion, we repeat the main points that you need to pay attention to when calculating the number of days of unused vacation, compensated to the employee upon dismissal:

the periods included and not included in the length of service, giving the right to annual paid leave, are established by Art. 121 of the Labor Code of the Russian Federation;

if the organization decides to pay compensation for full days of vacation, rounding to whole days should be done not according to the rules of arithmetic, but in favor of the employee;

workers who have worked for an employer for at least 11 months receive full compensation. In addition, full compensation is due to employees who have worked from 5.5 to 11 months if they leave for the reasons established by clause 28 of Regulation No. 169;

when calculating the number of days of unused vacation to determine the amount of compensation upon dismissal, the duration of the annual paid vacation matters;

compensation for unused vacation days is calculated in accordance with Art. 139 of the Labor Code of the Russian Federation based on average earnings.

Take into account every year in which the employee did not take a vacation or took it partially. After all, he had the right to rest annually (Article 114 of the Labor Code of the Russian Federation). In this case, we are talking not about the calendar, but about the working year. That is, count unused vacation days for every 12 working months, starting from the day of employment (clause 1 of the Rules on Regular and Additional Leaves approved by the USSR TNK of April 30, 1930 No. 169; hereinafter - the Rules).

Do not include in such vacation experience:

the time when the employee was absent from work without good reason (including in cases provided for in Article 76 of the Labor Code of the Russian Federation);

parental leave until the child reaches three years of age;

vacation without pay with a total duration of more than 14 calendar days.

This procedure follows from paragraph 2 of clause 28 of the Rules approved by the USSR NCT on April 30, 1930 No. 169, and article 121 of the Labor Code of the Russian Federation.

For a full month worked, take a period equal to half a month or more. Exclude the surplus, which is less than half a month, from the calculation. This procedure is spelled out in paragraph 35 of the Rules approved by the NCT of the USSR on April 30, 1930 No. 169.

Important: there are cases when an employee needs to be paid compensation as for a full year of work, even if in fact he was in the organization for a shorter period. In particular, this should be done when an employee who has worked in the organization for less than 12 months, but at least 10.5, leaves. The fact is that full compensation is due for 11 months, and the worked 10.5 months must be rounded up to 11.

Also, full annual compensation is also due to those who have worked in the organization from 5.5 to 11 months, if the reason for such an early dismissal was:

downsizing;

liquidation of the organization;

conscription;

recognition of an employee as completely incapable of work according to a medical report.

Such norms are spelled out in clause 28 of the Rules approved by the USSR TNKT dated April 30, 1930 No. 169. Moreover, the rules on payment of full compensation should be applied to all employees. That is, as those who total have worked in this organization for less than one year, and those who have worked for more than one year.

So you need to act on the condition that in the last working year they have worked 5.5 months (or more) of experience, which entitles them to annual leave. The legitimacy of this approach is confirmed by the Recommendations of Rostrud of June 19, 2014 No. 2. The courts take a similar position (see the cassation ruling of the Sverdlovsk Regional Court of July 14, 2009 No. 33-7241 / 2009).

If the employee in his first and only working year in this organization (except for the cases listed above) was employed for less than 11 months, then for this year he is entitled to compensation in proportion to the time worked (clause 35 of the Rules approved by the USSR CNT of April 30, 1930 No. 169). That is, the number of unused vacation days in this case is determined by the formula:

In all other cases, pay:

full annual compensation for each 12 months of the working year worked;

proportional compensation if the employee has worked less than 12 months.

An example of calculating the number of unused vacation days for which compensation must be paid upon dismissal. The employee has worked in the organization for more than 11 months

A.S. Kondratiev has been with the organization since April 15, 2014. He is entitled to annual leave of 28 calendar days.

October 16, 2015 Kondratiev resigned. He never took annual leave, so he is entitled to compensation for unused vacation.

From January 12 to January 25, 2015, Kondratiev was on vacation without pay (14 calendar days). These 14 days must be taken into account when calculating the length of service for vacation and compensation for unused vacation (Article 121 of the Labor Code of the Russian Federation). This means that in the first working year the employee worked all 12 months and for this year he is entitled to full compensation. That is, the number of unused calendar days of vacation for the first working year is 28.

During the second working year, the employee worked less than 12 months (from April 15 to October 16, 2015). Therefore, for this year, the accountant calculated his proportional compensation. To calculate the number of unused vacation days this year, the accountant determined that the number of full worked (working) months from April 15 to October 16, 2015 is six:

from April 15 to May 14, 2015;
from May 15 to June 14, 2015;
from June 15 to July 14, 2015;
from July 15 to August 14, 2015;
from August 15 to September 14, 2015;
from September 15 to October 14, 2015.

The remaining number of days until the employee leaves is two (from 15 to 16 October 2015). This is less than half a working month. Therefore, they are not taken into account when calculating compensation.

The number of unused vacation days for the second working year, the accountant determined as follows:
28 days : 12 months × 6 months = 14 days

The total number of days for which compensation must be paid to Kondratiev for unused leave upon dismissal was:
28 days + 14 days = 42 days

An example of determining the number of unused vacation days when calculating compensation for unused vacation associated with dismissal. The employee has worked in the organization for less than 11 months

VC. Volkov has been with the organization since November 21, 2014. An employee is entitled to annual leave of 28 calendar days.

On February 27, 2015, Volkov resigned. He did not take annual leave, so he is entitled to compensation for unused vacation.

The accountant determined the number of unused vacation days as follows.

The employee worked in the organization for less than 11 months (from November 21, 2014 to February 27, 2015). Therefore, he is entitled to proportional compensation. To calculate the number of unused vacation days, the accountant determined that the number of full worked (working) months is three:

from November 21, 2014 to December 20, 2015;
from December 21, 2014 to January 20, 2015;
from January 21, 2015 to February 20, 2015.

The remaining number of days until the employee leaves is seven (February 21 to February 27, 2015). This is less than half a working month (28 days: 2). Therefore, they are not taken into account when calculating compensation.

An example of determining the number of unused vacation days when calculating compensation for unused vacation associated with dismissal. The employee has worked for the organization for less than 11 months. An employee was granted unpaid leave

VC. Volkov has been with the organization since January 22, 2015. An employee is entitled to annual leave of 28 calendar days. From February 3 to February 19, 2015, the employee was on vacation at his own expense.

April 10, 2015 Volkov resigned. He did not take annual leave, so he is entitled to compensation for unused vacation.

The employee has worked in the organization for less than 11 months, so he is entitled to proportional compensation. To calculate the number of unused vacation days, the accountant determined that for the period from January 22 to April 10, 2015, the employee worked two full months and 20 days. Since the employee took leave without pay - 17 days (from February 3 to February 19, 2015), the accountant deducted 3 days (17 days - 14 days) from the employee's work experience. This is due to the fact that when calculating vacation pay, leave is included in the length of service at their own expense, but within 14 days. Thus, the length of service of the employee was two months and 17 days, taking into account rounding - three months.

The accountant calculated the number of unused vacation days for which compensation must be paid to Volkov, as follows:
28 days : 12 months × 3 months = 7 days

The employee has not been working since the beginning of the month

Situation: how to determine the number of full months worked in order to calculate compensation for unused leave upon dismissal, if the employee was hired not from the beginning of the month?

Take into account not calendar, but working months. For example, if an employee was hired on January 23rd, then his full month of work expires on February 22nd. The next working month begins on February 23, and ends on March 22, etc. Indirectly, this procedure is confirmed by the provisions of clause 1 of the Rules approved by the USSR CNT on April 30, 1930 No. 169.

Moreover, if an employee leaves before the expiration of a full working month, then it is necessary to be guided by paragraph 35 of the Rules approved by the USSR CNT on April 30, 1930 No. 169. That is, when the employee has worked exactly half a month or more, take this month for full. The month that the employee has worked less than half, do not take into account at all.

Suppose an employee worked in an organization from January 23 to March 14 before leaving. In this case, the number of working months will be:

from January 23 to February 22 - one full working month;

from February 23 to March 14 - 20 days, which is more than half of the working month from February 23 to March 22 (28 days: 2).

Thus, rounding is made up - up to two months.

If calendar months were taken into account, then the number of months worked would be reduced to one. January (from the 23rd to the 30th) and March (from the 1st to the 14th) would not be included in the calculation, and one month would remain - February (from the 1st to the 28th). This option is unprofitable for the employee and does not meet the requirements of the Ministry of Health and Social Development of Russia, set out in letter dated December 7, 2005 No. 4334-17.

Rounding a fractional number of days

Situation: how many digits after the decimal point can you round the fractional number of days for which you need to pay compensation for unused leave related to dismissal?

The more, the more accurate the calculation will be. An organization may round to two decimal places, or to three, or even to four.

When calculating the number of unused vacation days for which you need to pay compensation, you may get a fractional number of days. For example, if an employee needs to pay compensation for five months worked, the result is 11.6667 days (28 days : 12 months × 5 months).

How to round off the number of unused vacation days correctly is not stated in the legislation. Therefore, it is up to the organization to decide how to round such results.

At the same time, most accounting programs provide for rounding the fractional number of days to two decimal places according to the rules of arithmetic. The organization may be guided by this procedure, or it may establish its own.

An example of determining the number of unused vacation days when calculating compensation for unused vacation associated with dismissal

Chief Accountant A.S. Glebova has been with the organization since May 13, 2014. On February 27, 2015, she resigned. All this period the employee worked completely.

Glebova worked in the organization for less than 11 months, so she is entitled to proportional compensation. To determine the number of unused vacation days, the accountant determined that the number of full (working) months of the employee's work in the organization is nine (from May 13, 2014 to February 12, 2015).

The remaining number of days until the employee leaves is 15 (from February 13 to 27, 2015), which is more than half of the working month (28 days : 2). Therefore, the accountant also included these 15 days in the calculation.

As a result, it turned out that Glebova worked 10 full months.

The organization has established a procedure for rounding the number of unused vacation days to four decimal places according to the rules of arithmetic.

The accountant calculated the number of unused vacation days as follows:

The employee was compensated for 23.3333 calendar days.

Transfer of a part-time worker to the main place of work

Situation: how to determine the number of unused vacation days when calculating compensation for unused vacation associated with dismissal? The employee was first a part-time employee, and then transferred to the main place of work.

When calculating the number of unused vacation days, take into account the time that the employee worked part-time before being transferred to the main place of work.

After all, part-time workers are granted leave on the same grounds as other employees (part 2 of article 287 of the Labor Code of the Russian Federation). And upon dismissal, the organization must pay compensation to the employee for all unused vacations, including those that are due to a part-time job (Article 127 of the Labor Code of the Russian Federation).

An example of determining the number of unused vacation days when calculating compensation for unused vacation associated with dismissal. The employee was first a part-time employee, and then transferred to the main place of work

A.I. Ivanov has been working in the organization part-time since April 22, 2014. On July 1, he was transferred to the main place of work. He is entitled to annual leave of 28 calendar days.

On February 27, 2015, Ivanov resigned. For the entire period of work in the organization, he was not on vacation.

Ivanov worked in the organization for less than 11 months, so he is entitled to proportional compensation for unused vacation. To calculate the number of unused vacation days, the accountant determined that the number of full (working) months of the employee's work in the organization is 10 (from April 22, 2014 to February 21, 2015).

The remaining number of days until the employee leaves is six (February 22 to February 27, 2015), which is less than half the working month (28 days : 2). Therefore, they are not taken into account when calculating compensation.

It turned out 10 full months (including the time of work of a part-time employee).

The number of unused vacation days for which compensation must be paid to Ivanov was:
28 days : 12 months × 10 months = 23.3333 days

Employee quits after two months

In this case, calculate compensation for unused vacation upon dismissal in the usual manner (Article 139 of the Labor Code of the Russian Federation). That is, determine the number of unused vacation days in proportion to the hours worked (clause 28 of the Rules approved by the USSR NCT of April 30, 1930 No. 169).

Do this even if the employee was on probation. The provisions of labor legislation do not provide for any specifics for this category of workers (part 3 of article 70 of the Labor Code of the Russian Federation).

Fixed-term employment contract

Situation: how to determine the number of unused vacation days to calculate compensation upon dismissal? The employee has a fixed-term employment contract for up to two months. The organization is located in the Far North.

Determine the number of unused vacation days at the rate of two working days for each month of work (Article 291 of the Labor Code of the Russian Federation).

At the same time, do not take into account annual additional holidays provided for employees working in the Far North region when calculating compensation for unused vacation upon dismissal in this situation. The explanation is this.

Article 321 of the Labor Code of the Russian Federation provides for annual additional paid leave for work in the regions of the Far North and equivalent areas. Annual additional paid leave, provided for in Article 321 of the Labor Code of the Russian Federation, is provided to employees after six months of work in the organization (part 1 of article 322 of the Labor Code of the Russian Federation). Since an employment contract has been concluded with the employee for a period of up to two months, the provisions of Article 321 of the Labor Code of the Russian Federation do not apply to this category of employees. Therefore, compensation for unused vacation must be paid at the rate of two working days per month of work, excluding additional vacations (Article 291 of the Labor Code of the Russian Federation).

An example of calculating compensation for unused vacation. An employment contract has been concluded with the employee for a period of up to two months. The organization is located in the Far North

VC. Volkov was hired under an employment contract for a period from January 13 to January 28, 2015 in an organization located in the Far North. The employee for the period of work under the contract was accrued a salary of 10,000 rubles. After the expiration of the employment contract, the employee quit. According to Article 291 of the Labor Code of the Russian Federation, Volkov is entitled to compensation for unused vacation of two working days.

The accountant calculated the average daily earnings for calculating compensation by dividing the amount of actually accrued wages for the days worked by the number of working days according to the calendar of the six-day working week (clauses 7, 11 of the regulation approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922, part 5 article 139 of the Labor Code of the Russian Federation).

The number of working days for the period from January 13 to January 28, 2015 according to the six-day working week calendar is 14.

Volkov's average daily earnings were:
10 000 rub. : 14 days = 714.29 rubles.

The amount of compensation for unused vacation was:
RUB 714.29 × 2 days = 1428.58 rubles .

The final settlement with the employee upon his dismissal implies payment Money, which are due to the last for all his time labor activity. In this case, the grounds for terminating the contract must be taken into account. After all, the salary of a citizen and other necessary payments will depend on this basis. In such a situation, the manager should not forget that the full settlement with the resigning person must be made on the day when the employee last operates in this organization. Otherwise, the boss simply cannot avoid problems with the law.

Foundations

The final settlement upon dismissal is made in all cases of termination of the employment contract. But only on the grounds on which the relationship between the employee and his boss is terminated, the amount of money that the person will receive in the end will depend. According to the norms of Article 140 of the Labor Code, the manager must pay all the funds due to the citizen on the last day of his work. And if it is impossible to carry out this procedure at the specified time, you need to do it the next day, when the employee presented a demand for settlement with him. Otherwise, management may big trouble if a person applies for the protection of violated rights in court.

It can be terminated both at the request of the employer and at the initiative of the citizen himself, as well as for reasons beyond their control. In addition, the desire to terminate the labor agreement is often mutual. In the latter case, the final settlement under the contract can be carried out not only on the final day of the person's work, but also after this moment.

Payment types

Regardless of the reasons for terminating the employment contract, a final settlement is required. Mandatory payments include:

employee's salary;
compensation for vacation that was not used;
severance pay upon termination of the relationship between the parties to the agreement under paragraph 2 of part 1

Additional types of financial support include: retirement benefits by agreement of the two parties, as well as other types of material compensation established by the collective agreement.

Issuance and retention procedure

It is clear that all the money due must be paid to the employee. At the same time, some of them can sometimes be withheld. In a particular case, we are talking about vacation pay upon dismissal of an employee for a vacation that he used, but the period of labor activity was not fully worked out, and the citizen decided to terminate his relationship with this organization and wrote a letter of resignation.

But there is one more important nuance. Money for the used vacation will not be withheld by the employer from the salary of a person upon his dismissal only if his departure from work is carried out in connection with a reduction in staff or the liquidation of the organization. In this case, the employee will also be entitled to a severance pay in the amount of the average income for two months, and if he did not get a job, then for the third month. The final settlement upon dismissal of a citizen takes place on the last day of his labor activity. And he is paid: salary, compensation for unspent vacation, severance pay, if any.

Vacation pay calculation

The enterprise from which the employee is dismissed must necessarily pay him compensation for the leave that was not used for the entire period of employment. In the event that a person has not been in it for several years, accordingly, the amount of payments is made for all this time. If a citizen terminates an employment relationship with an organization on his own initiative, and the period of work is not completely completed by him, then in this case deductions are made from his salary for the used vacation. In this case, the accounting department will have to calculate the exact number of days or months of work of a person.

The amount of vacation pay upon dismissal is calculated as follows:

The number of days of annual paid leave is taken, for example 28. After that, it is divided by the number of months in a year, that is, by 12. Then the resulting number (2.33) is multiplied by the number of months worked in the working period, for example 4.
Multiplying 2.33 by 4 results in 9.32 unused vacation days. Then this number is multiplied by daily earnings, for example, 900 rubles. It turns out 8388 rubles. This is the money that is due to a person as compensation for unused vacation. Personal income tax - 13% - will be withheld from the same amount.

The final settlement with the employee should not be delayed by the boss. It must be done on time, no matter for which of the reasons specified in Labor Code, the citizen is dismissed.

Rules for calculating upon termination of an employment contract

All payments due to the employee, the latter must receive on the final day of his labor activity at this enterprise. In the event that the head did not make the final settlement at the specified time, he will bear administrative responsibility. At the same time, a citizen must receive not only compensatory payments, but also the salary itself for the time of work.

For each day of delay in payments, the manager pays a fine in the amount of 1/300 of the refinancing rate of the Central Bank of the Russian Federation. In addition, if the amount of the final settlement when paying the severance pay is more than the amount of three times the employee's earnings, then personal income tax in the amount of 13% will have to be paid from this monetary allowance. The tax is also withheld when paying vacation pay.

Care on your own initiative

The final settlement upon dismissal of one's own free will must be made with the person on the last day of his exercise job duties which includes:

salary for the entire time of work;
compensation for holidays or holidays if a person worked without annual rest for several years in a row.

It should also be noted here important fact. If the leave was used by a citizen, but the period of work was not fully completed, accordingly, upon termination of the contract at the request of the latter, the employer has the right to withhold previously paid funds from his money.

When it is not possible to make deductions for unworked vacation

In a number of cases, which are provided for by law, deduction for leave upon dismissal is not made. This category includes the following situations:

Liquidation of the employer's organization.
Staff reduction.
Termination of an employment contract when a citizen cannot perform duties due to illness.
Call to the army.
With a complete loss of the former labor ability.
Restoration to previous position by court order.
Termination of the employment contract upon the occurrence of circumstances that are beyond the control of the parties.

In any of the above cases of dismissal of a person, the boss must make a final settlement with him on the last day of his work and pay all the money due by law. Otherwise, the person is full right to defend their interests in the prosecutor's office and the judiciary.

its calculation and size

In a situation where the employer is the initiator of the termination of labor relations, the citizen has the right in some cases to receive compensatory benefits. It is also called a holiday. In this case, the amount of this payment can be in the amount of two weeks or monthly earnings. Monetary allowance in the amount of the employee's salary for two weeks can be in the following cases:

If the state of health of a person does not allow him to continue his labor activity in this organization. Or when he refuses to move to another position, and the boss has nothing more to offer him.
With a complete loss of the citizen's ability to work.
If the terms of the employment contract change.
When a person is called up for military or alternative service.

In the amount of monthly earnings, the allowance is paid:

upon termination of the employment contract due to reduction;
in the event of liquidation of the organization.

Other circumstances may also be established when such benefits are issued to an employee. Nevertheless, the payment of the final settlement upon dismissal, including the compensatory allowance, must be made on the last day of the person's employment. In addition, when calculating this type of compensation, it is necessary to take into account the payment of taxes if the amount of monetary allowance exceeds the employee's salary three times. Otherwise, no income tax is payable.

Final calculation example

An employee who ends his employment relationship with a particular organization is entitled to receive money earned and other compensation, if the grounds for dismissal allow this. Consider the following example.

Ivanov, an employee, leaves the enterprise of his own free will. Naturally, in this case, he does not receive severance pay and the preservation of average earnings for the third month before employment. But he is entitled to the payment of earned money for all the time and compensation for vacation. The final settlement of the employee in this situation will be made in the form T-61. completed upon termination of employment.

Ivanov wrote a statement in April and resigned on the 19th. Accordingly, he must be calculated and given remuneration for work from 1 to 18 inclusive. If his average salary is 20,000 / 22 working days (such a number of them in April), as a result, the amount per day comes out - 909.09 rubles. It is multiplied by the number of days worked in the month of dismissal - 18. As a result, the amount is 16363.22 - Ivanov's salary for April. In addition, the organization first pays tax on this money, and then the accountants issue the final settlement to the citizen.

Since a person quits in April, and he has a vacation according to the schedule only in June, and he did not use it, he is entitled to compensation. The calculation takes place in the following order:

Ivanov worked this year for 3 months and 18 days. But the count will go for 4 full. Rounding to tenths and hundredths is not done, so the amount is calculated from 28 vacation days / 12 months a year = 2.33 days. After that 2.33*4 (worked months)=9.32 days. And only then 9.32 * 909.9 (daily earnings) \u003d 8480.26 (compensation for vacation).

Thus, the final payment is made from all the amounts due to the employee. But in this case, this is only a salary and a cash payment for a vacation, because Ivanov quits on his own initiative. If he had been reduced or dismissed in connection with the liquidation, he would also have received a severance pay, which is also paid with all the money (based on Article 140 of the Labor Code of the Russian Federation).

Arbitrage practice

Currently, many former employees are going to court to protect their rights, which they believe were violated by the manager upon dismissal. Especially if the question concerns cash payments that were not made on time and in right size issued to the employee. In practice, there are even such cases when employers, when making settlements with a citizen, made deductions from his income for vacation that was previously used. And this eventually led to litigation and complaints.

Let's give a colorful example from practice. An employee was fired from a redundancy organization. The head paid off with him in full, but when paying the money, he made deductions for the vacation, which had already been used by the citizen in June. In addition, the redundancy procedure was violated by the employer in terms of the fact that he did not offer the available vacancies to the employee. But at the same time, he accepted other persons for vacant positions, which is forbidden to do when carrying out dismissal measures for such reasons. Having counted his earned money and discovered violations of labor laws, the former employee applied to the judicial authority with a request for reinstatement and payment for forced absenteeism, which occurred through the fault of his boss.

Having considered all the materials of the case, the court came to the conclusion that the employer carried out the reduction procedure without complying with the norms of the labor code. In addition, he made a completely wrong calculation with the employee. He simply did not succeed in the final settlement upon dismissal (2016). He grossly violated the norms of the labor code, in connection with which the citizen was reinstated at work in his position, and the employer paid him moral damages and compensation for the used vacation, which he had previously illegally withheld. That is why managers, when settling accounts with employees, need to be especially careful and not allow violations on their part, so as not to prove their case in the judiciary later.

Compensation for unspent vacation in monetary terms is due to the employee only upon dismissal.

In rare cases, leave can be compensated for an employee if he continues to work.

How compensation for unused vacation is calculated, we will consider further.

If the employee works, compensation is calculated for extra days holidays exceeding 28 days. The law does not limit the number of days that compensate. To do this, you can submit an application in any form at any time. The administration issues an order for payment. Based on such documents, the accountant makes a calculation and calculates the payment.

The calculation is made in free form. Only the employee decides to replace the vacation with monetary compensation. The employer is not in the right to decide such a question. But another thing is whether compensation will be paid on this application. Here the question can be solved both positively and negatively. If the organization, for example, is in a difficult financial situation, then the director may decide to grant the leave in full instead of payment.

Compensation due:

those employees who have never been on vacation;
employees who had to take no vacation in the last year;
employees who wrote;
employees whose employment contract ends;
employees who are transferred to another position in the same company;
employees;
part-time professionals.

Compensation for the main vacation, as well as for additional vacation is not allowed:

pregnant women;
employees under 18;
workers in hazardous production;
workers performing heavy work (here it is permissible to replace days of additional leave that exceed 7 days with compensation, but this is fixed in the industry agreement or in the collective agreement).

If they consider compensation upon dismissal of an employee, then they take into account his main and additional unspent holidays for the entire time he worked at the enterprise. It doesn't matter why the employee quit. This does not deprive him of the right to receive compensation.

Compensation is not accrued to employees who worked under civil law contracts, since they are not entitled to annual leave. Employees are entitled to compensation if they have worked at the enterprise for at least half a month. It is charged to part-time workers in the same way as to the main workers.

This one does not include:

the time when the employee was not at work without good reason;
(up to three years);
more than 14 calendar days.

When calculating a full month, half a month or more is taken.

However, one point must be noted - many judges believe that you can use the right to leave no later than 18 months. That is, compensation can be received only for a year and a half, the rest burns out.

They explain this by the fact that the main share of the annual paid leave (at least 2 weeks) must be provided within 1 year, and the rest - within 18 months after the end of the year for which the leave is given.

Thus, vacation can be postponed only for 1.5 years. But not all courts use the rules of the ILO Convention No. 132 "on burning holidays". Many consider 3 months from the date of dismissal to recover compensation for unspent vacation.

If the employer loses in court to the former employee, he will have to pay compensation and interest for the fact that.

Most likely he will also have to pay:

inflation losses;
moral injury;
legal costs.

For violation of labor laws, i.e. non-payment of compensation, or payment of compensation for the main vacation, fines are provided for employers:

from 1000 - 5000 rubles. - for individual entrepreneurs and officials;
from 30,000 - 50,000 rubles. - for organizations.

For repeated violations, the fines are aggravated:

from 10,000 - 20,000 rubles. — for individual entrepreneurs and officials (or disqualification from 1 to 3 years);
from 50,000 - 70,000 rubles. - for organizations.

These violations can be found during the inspection by the labor inspectorate. Also, the employee himself can go to the labor inspectorate with an appeal.

Taxation

The organization is obliged to withhold personal income tax from compensation. This tax is transferred to the budget no later than the day following the day of payment of compensation to the employee.

It is also necessary to accrue payments from the calculated amount for insurance against accidents and occupational diseases and for compulsory pension (medical, social) insurance.

These payments must be transferred no later than the 15th day of the following month. This type of compensation is included in labor costs.

Calculation examples

Consider, upon dismissal and upon dismissal. First you need to determine the size, then calculate the number of unspent vacation days. It is found according to the formula:

It is necessary to take into account every year in which the employee did not rest on vacation, or he partially took time off. This refers to the working year, not the calendar year.

It is important that there are cases when a full payment is due, even if the employee has worked in the organization less than a year eg 10.5, since this is rounded up to 11 months, full compensation is due. Also, annual compensation is provided to those who worked at the enterprise from 5.5 to 11 months, if the dismissal was caused by:

liquidation of the organization;
conscription for military service;
recognition of the employee fully to work on the conclusion of the medical commission.

In other cases, for any worked 12 months of the working year, full and proportional compensation is due if the employee worked less than 12 months.

Calculation example (an employee worked at the enterprise for less than 11 months):

Ignatiev I.A. has been with the organization since November 25, 2015. On February 27, 2016, he retired. The employee is entitled to annual leave of twenty-eight calendar days. He did not take annual leave, so he needs to accrue compensation. The employee worked less than 11 months, which means he is entitled to compensation in proportion to the months. Let's calculate the number of working months, it is equal to three:

November 25, 2015 to December 24, 2015;
from December 25, 2015 to January 24, 2016;
January 25, 2016 to February 24, 2016

There are 3 days left until the dismissal (February 25-27). This indicator is less than half of the working month (28:2), so these days are not taken into account.

So let's do the calculation:

28:12 months*3 months = 7 days.

Postings in accounting

As noted earlier, the organization is not required to replace unused vacation, which is not related to dismissal, with monetary compensation.

It follows that there is no specific time frame for the payment of this compensation.

The terms of payment are determined by an agreement between the employee and the employer.

The payment of compensation is fixed by an expense cash order, or according to the statement along with the salary.

The final settlement always accompanies, in the foreground, in which is the calculation of compensation for unrealized vacation. It is paid, taking into account the days of vacation for the entire period of work. In the presented publication, we will talk about how to calculate the number of vacation days upon dismissal, doing it quickly and competently.

Since the calculation of compensation payments is carried out by multiplying the number of days of unused vacation by the average daily earnings, the reliability of the amount received depends on the correct calculation of these indicators.

How to calculate vacation days upon dismissal

The law does not establish a specific algorithm for calculating vacation days payable upon termination of an employment contract. Usually, in such calculations, they adhere to the positions set forth in the "Rules on regular / additional holidays" dated 04/30/1930 and their duration established by the Labor Code of the Russian Federation.

Upon dismissal of an employee whose work experience in one place exceeded 11 months, and the vacation was not granted, compensation for the year is calculated for him. The same amount of compensation is also provided to employees who have worked from 5.5 to 11 months, if the dismissal took place due to the liquidation of the enterprise as a whole, its divisions, or a significant reorganization of the company.

For example, an employee who worked in the company from 03/26/2016 to 02/28/2017, i.e. 11 months, quits. and 2 days. Vacation duration is 28 days. Since more than 11 months have been worked out, the due leave amounted to the number of days provided for by law - 28.

If the period of activity does not exceed 11 months, vacation days are calculated in proportion to the number of months of vacation experience in a part-time working year according to the formula:

H to \u003d N / 12 x K ohm - H dio, where

- H to - the number of vacation days to be paid;

- N - the legally established standard for the entitlement days of vacation for the year;

- K om - the number of months of work;

- N dio - the number of days of already realized vacation.

The employee got a job on June 1, 2015, worked until February 29, 2016, taking part of the vacation in December (10 days), the total duration of which is 28 days. Calculate the number of unrealized vacation days using the proposed formula:

H to \u003d 28 / 12 x 9 - 10 \u003d 10.97 days.

If, keeping the same initial data, a minor employee leaves, then the duration of the vacation of 30 days will appear in the calculation:

H to \u003d 30 / 12 x 9 - 10 \u003d 12.5 days.

For a teacher who has the right to a vacation of 56 days, the calculation will be as follows:

H to \u003d 56 / 12 x 9 - 10 \u003d 31.99 days.

Thus, the duration of the entitlement vacation plays a key role in the calculation.

On rounding off the calculated vacation days

The obligatory rounding of the obtained value is not regulated by law, but in the letter of the Ministry of Health and Social Development of the Russian Federation dated 07.12.2005 No. 4334-17 it is noted that there is a possibility of rounding the number of vacation days at the initiative of the employer, incl. to whole units. But this can be done without applying arithmetic rules, but relying on the interests of the staff.

Example

The established vacation period is 28 days. Situation: an employee who has 1 month quits. worked experience. The number of days of vacation due per month is 2.3333 days (28 / 12). Due to the inconvenience of using periodic fractions in calculations, the employer has the right to round the resulting value. While rounding up:

up to hundredths, determine the value of 2.34 days;

up to tenths - 2.4 days;

up to 3 whole days.

How to calculate the number of vacation months: features

To correctly calculate vacation days upon dismissal , it should be remembered that the specificity of establishing the number of months in the vacation period. With such a calculation of the period, generally accepted arithmetic rules are followed: if the number of days remaining after the determination of full months does not exceed half a month, they are excluded from the calculation, and if exceeded, they are rounded up to a whole month. Note that the Rules do not specify the term “half of the month”. However, guided by the examples presented in the document, employers in practice take 15 days for half a month, regardless of their number in a month. In addition, settlement periods, not calendar periods, are involved in the calculation of the period.

Example

An employee hired on 01/03/2016 leaves on 05/19/2016. The period of work was 4 months. and 16 days. 16 days (> 15) are rounded up to a whole month, getting 5 months for further calculation.

We explained how to calculate the number of vacation days upon dismissal. We add that employees who have worked for at least 11 months. and those dismissed for any reason receive compensation in full for the year, which does not contradict the Labor Code of the Russian Federation, since annual paid leave is necessarily included in the vacation experience, amounting to a full year in total.