Please explain the following situation: A new employee was hired, he worked for 1 month, and then wrote an application for 1 month of vacation at his own expense. Then after 22 calendar days he wrote a letter of resignation. How to calculate compensation for unused vacation? 2.33 times 1 month or 2??? Will it be correct if we include this period in the calculation of compensation upon dismissal (due to this, he has more days of compensation, but in fact he did not work). Thank you in advance for your answer.

Only 14 days of vacation at one's own expense are included in the vacation period. If he worked exactly a month, compensation is paid for the month. If a month and two days, and then went on vacation - for 2 months (2 + 14 is more than half a month, rounded up).

The rationale for this position is given below in the materials of the System Glavbukh

Calculation of the number of unused vacation days

Vacation must be granted annually (). Therefore, calculate the compensation for unused vacation for each year in which the employee did not use (not fully use) the vacation. In this case, take into account not the calendar year, but the year actual work employee (working year - 12 working months) (clause 1 of the Rules approved by the USSR NCT on April 30, 1930 No. 169).

From the time an employee worked in each work year, exclude:

• the time an employee is away from work good reasons(including in cases provided for Labor Code RF);
• the time of parental leave until the child reaches the age of three;
• time of unpaid leave granted at the request of the employee total duration over 14 calendar days. *

Situation: whether it is necessary to round up to full days the fractional number of days for which it is necessary to pay compensation for unused leave related to dismissal (mod = 112, id = 55378)

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, it turns out 11.67 days (28 days : 12 months ? 5 months).

The legislation does not provide for a mechanism for rounding off the number of unused vacation days. Therefore, this issue is left to the discretion of the organization.

But, if the organization decides to round up, for example, to whole days, this should be done not according to the rules of arithmetic, but in favor of the employee (letter of the Ministry of Health and Social Development of Russia dated December 7, 2005 No. 4334-17).

N.Z. Kovyazin

deputy director of the department wages, labor protection and social partnership Ministry of Health and Social Development of Russia

Cash compensation for unpaid leave upon dismissal

Speaking of compensation for unused vacation, we imagine, first of all, monetary compensation for the inconvenience and deprivation caused. Let's turn to the law.

The Labor Code allows the exchange of a vacation period for monetary compensation for unused vacation (Articles 126 and 127 of the Labor Code of the Russian Federation), but with some restrictions.

First of all, they talk about compensation for unused vacation when an employee is dismissed. In accordance with labor law upon termination employment contract the employee is paid compensation for all unused vacation days.

If the employee wishes, then at his request, instead of money, he will be provided with all non-vacation days of vacation with subsequent dismissal. In this case, the last day of vacation will be considered the day of dismissal. This option is possible only if the termination of the employment contract does not occur due to the guilty actions of the employee.

Since both the calculation of vacation pay when granting vacation and the calculation of compensation for unused vacation are the same, in material terms, the person leaving does not win anything. Rather, here we are talking about the possibility of being legally absent from the workplace, but so that the record of dismissal in the labor office appears a little later in time than when dismissed with compensation for unused vacation.

With regard to compensation for unused vacation without dismissal, the law establishes some restrictions on monetary compensation for days of unrealized vacation.

Don't know your rights?

Compensation for unused vacation without dismissal

Article 126 of the Labor Code is devoted to compensation for unused vacation without dismissal. It says that annual paid leave can be replaced by monetary compensation, but only to the extent that it exceeds 28 days and at the written request of the employee. If we are talking about the addition of several annual holidays or the postponement of the holiday, then a part of each annual holiday over 28 days or any number of days from this part is subject to compensation.

From the foregoing, the following important conclusions can be drawn.

1. Only those days of rest that go beyond the standard 28-day vacation are compensated. This means that if an employee has the right to only 28 days of vacation, then there is nothing to compensate for over these days, which means that the employee must spend the days not taken off, and compensation for unused vacation is possible only upon dismissal.
2. If unused vacation days are added up, but each vacation is also equal to 28 days or the unused part of the 28-day vacation, then financial compensation for unused vacation is also not possible.
3. If a annual leave employee exceeds 28 days, then the excess can be replaced by monetary compensation, either in full or in part. For example, a 45-day pedagogical leave makes it possible to claim compensation for both 17 days (the difference between pedagogical and standard leave), and for any other number of days less than 17.
4. Compensation for unused vacation over 28 days is provided only at the request of the employee.

Labor legislation prohibits, in any case, except for dismissal payments, to replace rest days with compensation for unused vacation for the following employees:

• pregnant women;
• minors;
• working in adverse working conditions.

How to use the sample and write an application for compensation for unused vacation

Since the calculation and payment of compensation for unused vacation is made only on the personal application of the employee, you need to know how to write such an application.

The legislation does not provide for a unified application form for compensation for unused vacation. The document is written by the employee in free form addressed to the head of the organization.

A typical sample application for vacation compensation contains the following rules: in the upper right corner, the name of the organization, last name, first name, patronymic of the head addressed by the employee are indicated. A little lower, the employee must indicate his data: full name, position, division, personnel number. Even lower in the middle is the name of the document: statement. Further, from the red line, the employee describes his request for compensation for unused vacation.

The text should indicate:

• year of work (period) for which the leave was granted;
• type of vacation (main or additional);
• the number of days for which the employee wants to receive compensation for unused vacation.

The application must be submitted to the office, the secretary of the head or directly to the head, with a mandatory mark of acceptance.

Vacation

Based on the data you entered, the calculator will determine the number of vacation days for which the employee is entitled to compensation. Next, the amount of earnings accrued for the 12 calendar months preceding the dismissal will be calculated. Its calculator will divide by the number of calendar days falling on the time worked in this period. The average daily earnings received will be used to calculate compensation.

The program takes into account all the complex situations of calculating compensation for unused vacation. For example, an increase or decrease in the salary of an employee, the accrual of various bonuses, allowances, etc.

Read additional materials on the topic in the section Holidays

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Introducing step by step instructions, which will help to calculate compensation for unused vacation upon dismissal of an employee.

Upon dismissal, the employee is paid monetary compensation for all unused vacations. equals: the number of days of unused vacation multiplied by the average daily earnings of the employee.

Calculate the number of days of unused vacation

The calculation is done for each working year according to the formula:

By the day

=

Co.

:

12 months

X

km

-

Key

where Kdn is the number of days of unused vacation; Km - the number of months of work for a working year (except for periods excluded in accordance with Article 121 of the Labor Code of the Russian Federation) (if an employee has worked for 11 months, then Km = 12 months); Ko - the number of vacation days that the employee is entitled to for the working year; Ki is the number of vacation days that the employee used during the working year.

Moreover, if the employee has worked exactly half or more than a month, the month must be taken into account as a full one; if less than half a month is worked, it is not taken into account.

Define billing period

If an employee has been working in the company for 12 or more months, then the billing period is 12 calendar months preceding the month in which the employee is fired.

If an employee has worked in the company for less than 12 months, then the company itself determines which period to take into account. The options may be from when to count this period. It could be the first day of work. Or the 1st of the month following the one in which the person was hired. And the period always ends at the end of the month preceding the one in which the employee quit.

Calculate the amount of earnings for the billing period

We take into account all payments in billing period provided by the wage system. When increasing salaries, compensation must be calculated taking into account the conversion factor (the new salary after the increase is divided by the old salary of the employee). If the salary was increased within the billing period, then the payments before the increase are multiplied by the conversion factor. If the salary was increased in the month in which the employee quit, then we multiply the compensation calculated from the previous salary by the conversion factor.

Calculate your average daily earnings

The billing period has been worked out in full:

From dz

=

3

:

12 months

:

29,3

where Cdz - average daily earnings; Z - earnings for the billing period.

The billing period has not been fully worked out:

Sdz

=

3

:

(29,3

X

Kp

+

1,4

X

Knp)

where Kp - the number of fully worked months in the billing period; Knp - the number of days worked in not fully worked months.

Calculate compensation for unused vacation upon dismissal

The calculation of compensation for unused vacation upon dismissal is performed according to the formula:

To

=

Kdn

X

Sdz

To whom to pay compensation for unused vacation upon dismissal. How to calculate the total amount of compensation for unused vacation upon dismissal. Read about it in the article.

Question: In the materials presented in the program, the Glavbukh found a reference to the fact that in Russia there is the ILO Convention of 06/24/1970 No. 132, according to which, after 21 months, non-vacation leave burns out. At the same time, I read that, according to the rules on holidays No. 169 of 04/30/1930, upon dismissal, days must be counted for every 12 months, starting from the day of employment. Please clarify. Thank you. Best regards, Antonina

Answer: It is better to pay compensation for the entire time of work in the organization. Rostrud in its explanations indicates: upon dismissal, an employee is paid monetary compensation for all unused vacations (material and administrative liability (, part 1, article 5.27 of the Code of Administrative Offenses of the Russian Federation).

The Convention does say that the continuous part of the annual paid leave (at least two weeks) must be granted within one year, and the balance - within 18 months after the end of the year for which the leave is granted (paragraph 1 of Article 9 of the ILO Convention of June 24 1970 No. 132). From this, some courts conclude that vacations accrued over a period of more than 18 months before dismissal are forfeited (see recommendation in full answer).

ILO Convention No. 132 on “burning holidays”. Therefore, if the employer loses in court, he will be obliged to pay not only the amount of compensation for unused vacation, but also

moral injury;

Therefore, consider unused vacation days for every 12 working months, starting from the day of employment (clause 1 of the Rules on regular and additional holidays, approved by the TNKT of the USSR of April 30, 1930 No. 169).

Rationale

Who is entitled to compensation for unused vacation upon dismissal

Upon dismissal, an employee who did not use his right to leave is entitled to monetary compensation for all unused holidays (, clause 28 of the Regulations on regular and additional holidays dated April 30, 1930 No. 169). Similar explanations are given in the letter of Rostrud dated June 8, 2007 No. 1921-6.

When calculating the compensation associated with the dismissal of an employee, take into account all his main and additional unused vacations for the entire time he worked in the organization () *. The right of an employee to compensation does not depend on the reason for his dismissal.

Only employees who have worked in the organization for at least half a month are entitled to compensation upon dismissal. At the same time, the number of days of work that is less than half a month must be excluded from the calculation of the length of service giving the right to compensation. This procedure is established by paragraph 35 of the Regulations on regular and additional holidays dated April 30, 1930 No. 169.

Attention: Many judges believe that the right to leave can be used no later than 18 months. Accordingly, upon dismissal, compensation for unused vacation should be paid only for a year and a half. The explanation is this.*

An uninterrupted part of the annual paid leave (at least two weeks) must be provided within one year, and the balance - within 18 months after the end of the year for which the leave is granted. This is stated in paragraph 1 of Article 9 of the ILO Convention of June 24, 1970 No. 132 “On paid holidays”, which Russia ratified in 2010. That is, a year and a half is the maximum period for which an employee's vacation can be postponed.

But vacations accumulated over a period longer than 18 months before dismissal burn out. These conclusions are in the appeal rulings of the Court of the Khanty-Mansiysk Autonomous Okrug - Ugra dated April 28, 2015 in case No. 33-1904 / 2015, the Moscow City Court dated March 6, 2015 in case No. 33-7255, the Supreme Court of the Republic of Bashkortostan dated March 3, 2015 in case No. 33-3295/2015, Samara Regional Court dated August 13, 2014 in case No. 33-7970/2014 and others.

However, not all courts apply the provisions of the ILO Convention No. 132 on “burning leave”, and the three-month limitation period for collecting compensation for unused leave is calculated from the date of dismissal. In particular, this is evidenced by the decision of the Presidium of the Stavropol Regional Court of November 7, 2014 in case No. 44g-299/14, the ruling of the St. Petersburg City Court of August 7, 2012 No. 33-10599/2012.

If the employer loses in court, then he will be obliged to pay not only the amount of compensation for unused vacation, but also interest for the delay in payment of compensation (). In the event of a loss in court, most likely, you will also have to reimburse:

moral injury;

inflation-related losses;

court costs (including expenses for a representative in court).

Of course, if these requirements are already former employee stated (Art., Labor Code of the Russian Federation, Art., Code of Civil Procedure of the Russian Federation, paragraph 55 of the decision of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

Remember also that Rostrud in its explanations indicates: upon dismissal, an employee is paid monetary compensation for all unused vacations (letter of Rostrud dated July 2, 2009 No. 1917-6-1). If a former employee who was paid only part of the compensation for unused vacation turns to the labor inspectorate for the protection of his rights, and not to the court, then the employer is unlikely to be able to avoid