The law prohibits working without vacation, receiving a cash equivalent instead of the allotted vacation once a year. But this does not mean that there are no options for how to receive compensation for unused vacation. Not only do they exist, but they are completely legal and can be used in legally permitted situations.
Under what conditions will holiday compensation be paid?
Any employee is entitled to annual paid leave (Article 114 of the Labor Code of the Russian Federation). The duration of the main vacation is 28 calendar days. There is also additional leave that is provided:
- in the conditions of the Far North and regions equivalent to them;
- in harmful and dangerous working conditions;
- in special conditions, with irregular working hours, etc.
If there are doubts about whether it is possible to receive compensation for unused vacation, then by turning to the Labor Code, you can understand that the answer is clearly affirmative.
The equivalent for untaken rest may be assigned if:
- the employee quits;
- the rest he is entitled to exceeds 28 calendar days (Article 126 of the Labor Code of the Russian Federation).
Upon resigning, an employee has the right to receive benefits for all days of earned rest. The amount of compensation is calculated based on the number of vacation days and average earnings for the last year.
The second case in which compensation is possible is a vacation of more than 28 days. Then, for all additional days or part of them, the cash equivalent is charged. For example, if you are entitled to 34 days of vacation, then you need to use 28 of them for rest, and receive compensation for the remaining 6 days.
However, the law does not oblige the employer to strictly follow this rule. The employer has the right not to pay additional vacation days, but to demand their use for rest.
Please note! The rule does not apply to pregnant women, workers under 18 years of age, or workers employed in hazardous and hazardous industries. They must use the additional leave for its intended purpose.
Why is vacation transfer allowed?
The legislator stipulated the occurrence of situations during vacation when annual leave must be interrupted or granted at a different time. Such cases are:
- transfer of leave due to sick leave;
- the need to perform government duties, during which time exemption from work is granted by law;
- in other cases.
Non-payment of vacation pay, notification of vacation less than 14 days before its start also becomes the basis for transferring the vacation to another period agreed with the employee.
If the production process requires the presence of an employee and his going on vacation paralyzes the activities of the organization, with the consent of the employee, the vacation is also postponed to another period of time. However, it must be used within the year following the year of provision. That is, working for 2 years without vacation is acceptable.
Therefore, if you need to find out whether it is permissible to replace vacation with monetary compensation in the event of its postponement, remember that in this case the legislator says “no” (Article 124 of the Labor Code of the Russian Federation).
Workers who are under 18 years of age, as well as those employed in hazardous and hazardous industries, must be granted leave annually; transfers are not allowed.
Use of vacation before dismissal
According to Article 127 of the Labor Code of the Russian Federation, when planning to terminate the contract, an employee can take the leave due to him and then resign at his own request. They write a statement indicating the date of dismissal, which should be the last day of vacation. If the term of the employment contract has expired, the employee has the right to use the allotted vacation before dismissal and the date of termination of the contract will also be the last day of vacation.
This date may not coincide with the previously established end date of the employment contract. If a vacation is taken by an employee who has written a resignation letter of his own free will, he has the right to change his mind and withdraw the resignation letter before the start of the vacation. If another employee is hired in his place, then withdrawal of the application for dismissal is not allowed (Article 127 of the Labor Code of the Russian Federation).
How to get cash coverage
As mentioned above, if an employee is not sure whether it is possible to replace the leave of monetary compensation in 2020, it is worth seeking clarification from the article of the law. The rule stipulates that compensation is paid only upon dismissal, for all required vacation days, or if non-core days are not used. To obtain it you need to do the following:
- Submit a free form application. If there is a special form - on the form. The header of the application indicates the position of the person who will endorse the application and his full name. Next, indicate the full name of the applicant.
- The title of the document is “statement”.
- The text itself is a request to replace vacation days with a cash equivalent. Indicate under what circumstances the additional leave was given, its duration and refer to Article 126 of the Labor Code of the Russian Federation on the right to receive compensation.
- Put the date and your own signature.
After 10 days or on the date of the next payment of wages accepted at the enterprise, the payment must be issued to the applicant. Basic leave cannot be replaced by compensation. This is a violation of the law and the guilty person is subject to administrative liability in the form of a large fine. The dilemma of whether it is possible to take compensation for unused vacation, if it is not the main one, without imposing penalties on the employer, suggests the answer: yes, it is possible.
Watch the video about vacation compensation before dismissal:
Upon dismissal, the employee is required to pay compensation for all days of vacation. If it was not provided within two years, then in two years.
If an employee does not have the right to receive additional leave, then he does not have the right to compensation for vacation days, for example, unused for 2 years and, accordingly, doubled.
How to take a vacation not all at once
According to the Labor Code of the Russian Federation, the division of vacation into parts is possible with agreement with the employer. At the same time, one of the parts should not be less than 14 calendar days (Article 125 of the Labor Code of the Russian Federation). The remaining days can be taken in any proportions. In particular, twice for 7 days, twice for 5 days and 4 days, and so on.
The specialist answers questions in the comments to the article
An employee's annual paid leave can be replaced with monetary compensation only in two cases - if the dismissed employee has unused vacations left or if we are talking about replacing a part of the vacation exceeding 28 calendar days with a cash payment (). Let's look at both of these situations in more detail.
Compensation for unused vacation upon dismissal
Upon dismissal, the employee is paid monetary compensation for all unused vacations (). It is worth noting that despite the fact that the right to use vacation for the first year arises for the employee after six months of his continuous work, an employee who has worked for the company for less than six months still has the right to compensation for unused vacation (,).
The employer must pay the amount due to the employee on the day of dismissal, and if the employee did not work on that day, then no later than the next day after he presents the corresponding demand ().
Determine the number of vacation days the employee is entitled to, taking into account his length of service. At the same time, not only employees who have worked a full year, but also employees:
- have worked for this employer for at least 11 months, which are subject to credit towards the period of work giving the right to leave;
- having worked from 5.5 to 11 months, if they are dismissed due to the liquidation of an enterprise or institution or individual parts of it, reduction of staff or work, as well as reorganization or temporary suspension of work, etc. ().
In all other cases, employees are entitled to leave proportional to their length of service. For example, if an employee has an annual paid leave of 28 calendar days, for each month of service he is entitled to 2.33 calendar days of leave (28 days: 12 months).
Thus, the number of vacation days due to an employee can be determined using the following formula:
O = E: 12 x C, where
O – the number of vacation days due to the employee;
E – total duration of vacation;
C – number of months of vacation experience.
Subtract the days already used by the employee from the number of vacation days allotted to the employee. At the same time, often the number of vacation days for which compensation is due upon dismissal turns out to be fractional. Their rounding is not provided for by law, but the Ministry of Health and Social Development of Russia explained that the employer can round the resulting number, although not according to the rules of arithmetic, but exclusively in favor of the employee ().
If the employee has completed a full 12-month pay period:
NW = (W: 12: 29.3) x D, where:
29.3 – average monthly number of calendar days (constant indicator in accordance with);
If an employee has not fully worked for one or more months of the pay period:
SZ = (W: (29.3 x M + N)) x KD, where:
SZ – average earnings for vacation days;
W – wages actually accrued for the billing period;
M – the number of full calendar months (when the employee worked all working days or shifts);
N – number of calendar days in incomplete calendar months;
D – number of calendar days of vacation.
In this case, the H indicator for each month must be calculated separately:
N = 29.3: KD x KO, where:
N – number of calendar days in an incomplete calendar month;
KD – number of calendar days in a month;
KO - the number of calendar days worked this month.
The results obtained for the H indicator for each partial month should then be summed up and the resulting total substituted into the formula for calculating average earnings.
Let us remind you that the average daily earnings are calculated for the last 12 calendar months (,). In this case, time, as well as amounts accrued during this time, are excluded from the billing period if:
- the employee retained his average earnings in accordance with the law (for example, annual basic paid leave), with the exception of breaks provided for by the Labor Code of the Russian Federation for feeding a child;
- the employee received temporary disability benefits or maternity benefits;
- the employee did not work due to downtime due to the fault of the employer or for reasons beyond the control of the employer and employee;
- the employee did not participate in the strike, but due to this strike he was unable to perform his work;
- the employee was provided with additional paid days off to care for disabled children and people with disabilities since childhood;
- in other cases, the employee was released from work with full or partial retention of wages or without payment in accordance with the law ().
ATTENTION!
Persons who have entered into an employment contract for a period of up to two months () and seasonal workers () are entitled to vacation not in calendar days, but in working days (at the rate of two working days per month of work). In this regard, the average daily earnings of such employees should be calculated using the following formula:
SZ = (Z: P6) x D, where:
SZ – average earnings for vacation days;
W – actual accrued wages;
P6 – the number of working days according to the calendar of a 6-day working week that fall within the hours worked;
D – number of working days of vacation.
Multiply the calculated average daily earnings by the number of unused vacation days. This will be the amount of compensation due to the employee.
At the same time, the resigning employee has the right to prefer the vacation itself as compensation. In this case, he must submit a written application to the employer for the provision of unused vacation with subsequent dismissal - only employees who are fired for guilty actions cannot exercise this right (). In this case, the day of dismissal is considered the last day of vacation, and the last day of work is the day preceding the first day of vacation (). This is necessary so that the employer can properly fulfill its obligation to formalize the dismissal and pay the dismissed employee.
Compensation for part of annual paid leave
Part of the annual paid leave exceeding 28 calendar days can be replaced by monetary compensation (). This is possible when the employee is entitled to extended or additional leave (,).
In addition, when summing up annual paid leave or transferring leave to the next working year, compensation can be received for the part of each annual paid leave exceeding 28 calendar days, or any number of days from this part. If an employee who is entitled to an annual basic paid 28-day vacation did not use it last year, he will still not be able to receive compensation this year, regardless of how many days of vacation he has accumulated. This is due to the fact that, as stated above, the right to replace part of the vacation with a cash payment can only be used by those employees who are granted extended or additional vacation.
To learn how to correctly determine the period in which the last 12 calendar months of work of an employee applying for monetary compensation instead of vacation falls, read the material “Determination of the billing period when calculating compensation for unused vacation” V "Encyclopedia of solutions. Labor relations, personnel" Internet version of the GARANT system.
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However, there are a number of nuances that are important to keep in mind.
First, to receive compensation, the employee must submit a written application. The employer does not have the right to replace part of the employee’s vacation with compensation on his own initiative.
Secondly, the employee who submitted the corresponding application should not belong to any of the following categories:
- pregnant women;
- workers under 18 years of age;
- workers engaged in work with harmful and (or) dangerous working conditions (if the question concerns).
These employees are prohibited from paying compensation even at their request. But there is an exception here too. It applies to workers engaged in work with harmful and (or) dangerous working conditions. Part of their annual additional paid leave, which exceeds seven calendar days, on the basis of an industry (inter-industry) agreement, collective agreements, as well as the written consent of the employee, drawn up in the form of an additional agreement to the employment contract, can be replaced by separately established monetary compensation ().
At the same time, even if all the above conditions are met, providing compensation for part of the vacation is the right, but not the obligation of the employer. Therefore, he has the right to refuse the employee’s request.
If management nevertheless decides to satisfy the employee’s request, replacing the vacation with monetary compensation must be issued in the form of an order from the employer, issued in free form. The main thing is to reflect for which vacation in which particular working year compensation is provided. In this case, the average earnings for payment of compensation are calculated in exactly the same way as for compensation for unused vacation.
Related documents:
- Decree of the Government of the Russian Federation of December 24, 2007 No. 922 " "
- , approved CNKT of the USSR April 30, 1930 No. 169
Only that part of the annual leave that exceeds 28 calendar days can be replaced with monetary compensation. Such an excess is possible if the employee is entitled to additional or extended leave.
In particular, employees of educational organizations of preschool, primary, general and secondary education are entitled to extended leave.
Thus, you can pay compensation to an employee only for unused vacation days exceeding 28 “mandatory” days.
Example
In 2014, organizations A.S. Glebova has the right to:
Basic leave lasting 28 calendar days;
Additional leave lasting 3 calendar days.
The total duration of Glebova’s annual paid leave in 2014 is 31 calendar days (28 days + 3 days). In 2014, with the consent of the administration, she can replace part of the vacation lasting 3 calendar days with compensation.
Two ways to replace vacation with compensation
First way. Register an employee. Upon dismissal, an employee who has not used his right to vacation is entitled to monetary compensation for all unused vacations (Article 127 of the Labor Code of the Russian Federation, paragraph 28 of the Rules on regular and additional vacations dated April 30, 1930 No. 169). When calculating 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 (Article 127 of the Labor Code of the Russian Federation). An employee's right to compensation does not depend on the reason for his dismissal. Moreover, it does not matter whether the employee is hired again by the same organization after some time.
Therefore, to pay compensation, you can first fire an employee and then hire him again (for example, a week later). Neither the Labor Code of the Russian Federation nor the Tax Code of the Russian Federation requires any explanations to be given in this case. An organization's personnel decisions are its internal matter. However, if necessary, the reason for such actions can be explained as follows: it was not possible to hire another instead of the dismissed employee, or the employee changed his mind and decided to return.
Second way. Send an employee on weekend leave until he or she completes any unused vacation days. Only non-working holidays are not included in the number of calendar days of vacation and are not paid (Article 120 of the Labor Code of the Russian Federation). Thus, periods that fall on weekends are included in the number of calendar days and are paid. Including in the case when an employee requests leave for two calendar days - Saturday and Sunday. Labor legislation does not prohibit doing this. The only restriction: at least one of the parts of the divided vacation must be at least 14 days. The employee can use the remaining days as he pleases. If the administration of the organization does not object, then each week he has the right to use only a few days of vacation from the remaining half. This procedure for dividing annual leave into parts is provided for in Article 125 of the Labor Code of the Russian Federation.
This method has another option. If an employee goes on vacation for a week or two and does not plan to use the entire vacation or has accumulated vacations from previous years, it is more profitable for him to indicate in the application that he takes vacation not from Monday to Sunday, but from Saturday of one week to Sunday is different. For example, an employee plans to take a vacation for two weeks, from February 6 to February 19, 2014. Then in the application it is better for him to indicate: “I ask you to provide me with the next annual paid leave for the period from February 4 to February 19, lasting 16 calendar days.” In this case, the employee will receive more vacation pay.
At the same time, you need to remember that the organization is obliged to provide annual leave to employees (Part 1 of Article 122 of the Labor Code of the Russian Federation). Vacation can be transferred to the next year only for production reasons: if the provision of vacation will adversely affect the work of the organization (Part 3 of Article 124 of the Labor Code of the Russian Federation). It is prohibited not to provide vacation for more than two years in a row (Part 4 of Article 124 of the Labor Code of the Russian Federation).
I have a question
Is it possible to pay compensation to an employee for unused additional leave if the first main paid leave has not yet been provided or has been partially provided. Additional leave is granted for working on irregular working hours.
Yes, you can.
The organization has the right to provide the first annual paid leave to the employee in advance (even if he did not work for the required period of six months) (Article 122 of the Labor Code of the Russian Federation). When calculating the total duration of annual paid leave, additional paid leaves are summed up with the annual main paid leave (Article 120 of the Labor Code of the Russian Federation). At the same time, the Labor Code of the Russian Federation does not make the possibility of granting additional leave dependent on whether the employee has taken the main leave or not.
Employees with irregular working hours are required (by law) to be provided with annual additional paid leave (Articles 116, 119 of the Labor Code of the Russian Federation). The employee’s right to receive additional days of rest arises along with the right to receive basic paid leave (clause 14 of the Rules on regular and additional leaves of April 30, 1930 No. 169).
Part of the annual paid leave exceeding 28 calendar days, upon a written application from the employee, can be replaced by monetary compensation (Article 126 of the Labor Code of the Russian Federation). Moreover, such a replacement is a right, not an obligation of the organization. In the situation under consideration, this part is actually equal to the duration of the annual additional paid leave for irregular working hours. The organization has the right to pay this amount to the employee in the current working year, including even before the provision of the first main paid leave.
Prohibition of compensation
Vacation cannot be replaced by monetary compensation for the following categories of employees:
- for pregnant women - regarding the main and any types of additional leave;
- employees under the age of 18 - in terms of basic and any types of additional leave;
- employees engaged in heavy work and work with hazardous working conditions - in terms of additional leave of a minimum duration of seven calendar days for work in the specified conditions. However, if the additional leave for harmful or dangerous working conditions exceeds the minimum duration, that is, eight calendar days or more, then the days of excess can be replaced with monetary compensation. In this case, the procedure, size and conditions of such replacement must be established in the relevant industry or inter-industry agreements or in a collective agreement;
- customs officials;
- drug control officials;
- employees of internal affairs bodies;
- employees of other government agencies, if this is directly established by law (orders of the relevant government agencies).
Documenting
If an employee decides to replace part of the vacation with monetary compensation, he must write a statement (Article 126 of the Labor Code of the Russian Federation).
Attention!
A working employee’s main vacation cannot be compensated with money, even if he wants it.
The decision to pay compensation for unused vacation not related to the dismissal of an employee is made by the administration of the organization. The organization has the right to pay such compensation, but is not obliged (letter of the Ministry of Labor of Russia dated April 25, 2002 No. 966-10).
An application to replace vacation with monetary compensation may look like this:
Director of "Alpha"
A.V. Lvov
from the cashier
A.V. DezhnevoySTATEMENT
I ask you to replace part of my vacation (three calendar days) exceeding 28 calendar days with monetary compensation.
Dezhneva/A.V. Dezhneva/
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 learn 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 vacation with monetary compensation, and 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 the 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 vacation while working
So, let's consider the first option of replacing vacation with monetary compensation - in accordance with Art. 126 Labor Code of the Russian Federation.Employees who are entitled to extended vacations (teachers ( Art. 334 Labor Code of the Russian Federation), disabled people ( Art. 23 Law no. 181‑FZ), minors, etc.) or additional leave (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 Far North and equivalent areas ( Art. 321 Labor Code of the Russian Federation), athletes and coaches ( Art. 348.10 Labor Code of the Russian Federation), medical workers ( Art. 350 Labor Code of the Russian Federation)).
First of all, we note that this provision 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 mandatory condition for payment of compensation is an application from the employee. Thus, the Astrakhan Regional Court changed the decision of the district court, which ordered compensation from the employer for part of the vacation exceeding its normal duration. In particular, the regional court indicated that for the employer to become obligated to pay the employee monetary compensation in lieu of unused vacation in excess of the normal duration, the employee must contact the employer with a statement of the appropriate content. As established by the court, the employee did not submit such a statement, and his filing a claim in court for payment of monetary compensation instead of granting the leave itself cannot replace his filing a corresponding statement with the employer. Thus, the employer did not have an obligation to pay monetary compensation ( 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 to allow workers of some categories. Yes, according to Part 3 Art. 126 Labor Code of the Russian Federation It is not allowed to replace annual basic paid leave and annual additional paid leave with monetary compensation:
- pregnant women;
- workers under 18 years of age.
Additional annual paid leave granted to an employee on the basis of clause 5 art. 14Law of the Russian Federation of May 15, 1991 No. 1244-1 “On the social protection of citizens exposed to radiation as a result of the disaster at the 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 dated 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 the minimum duration of 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 due to Part 4 Art. 117 Labor Code of the Russian Federation on the basis of an industry (inter-industry) agreement and collective agreements, as well as the written consent of the employee, formalized by concluding a separate agreement to the employment contract, part of the annual additional paid leave exceeding 7 days can be replaced by separately established monetary compensation in the manner, amount and amount conditions determined by industry (inter-industry) agreement and collective agreements. That is, in our example, the employee can count on compensation for 3 days of additional leave for work in harmful or dangerous conditions.
Let’s say an employee did not use vacation in the previous period, but this year he decided to take 56 days of vacation at once. At the same time, he wrote a statement asking to replace part of the vacation exceeding 28 days with monetary compensation. The question arises: is it possible to compensate for anything at all, and if so, how much? And the answer is contained in Part 2 Art. 126 Labor Code of the Russian Federation: when summing up annual paid leave or transferring annual paid leave to the next working year, monetary compensation may replace the part of each annual paid leave exceeding 28 calendar days, or any number of days from this part. Therefore, in the example under consideration, the employee does not have the right to payment of 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 a teaching employee), can he count on 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 basic annual paid leave with monetary compensation (see, for example, Determination of the Moscow City Court dated December 26, 2011 No. 33‑41006 ). On the other side, Art. 126 Labor Code of the Russian Federation allows you to replace with compensation a part of annual leave exceeding 28 calendar days. Of course, “main paid leave” and “annual paid leave” are different concepts, because the latter consists of the main and other types of leave. And based on the terminology, the employer does not have the right to replace 14 days (42 - 28) of vacation. But since to date there have been no explanations from officials on this issue, a practice has developed in which employers satisfy the employee’s request and compensate in cash for part of the extended leave exceeding 28 days.
For clarity, we give an example of calculating the number of days subject to compensation.
I. I. Ivanov has been working as a packer of cosmetics since September 15, 2012. He has the right to 30 calendar days of basic paid leave as a group III disabled person. In the first working year he used 20 days of vacation, in the second - 21 days. How many days of vacation 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 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 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) off.
Let's briefly talk about processing compensation payments. In order for part of the employee’s vacation to be replaced with compensation, he must contact the employer with a corresponding application. The employer, on the basis of such an application and when making a decision on payment of compensation:
1. Issues an order , which might look like this (see example on page).
Regarding the calculation of compensation, we will say the following. Cash compensation for 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.
Limited Liability Company "Zima"
"LLC "Zima")
On replacing part of the vacation with monetary compensation
In accordance with Art. 126 Labor Code of the Russian Federation
I ORDER:
Replace with monetary compensation part of the annual paid leave granted for the period of work from September 15, 2013 to September 14, 2014, exceeding 28 calendar days in the amount of 2 days to packer Ivan Ivanovich Ivanov.
Reason: statement by I. I. Ivanov dated November 11, 2014.
Director Tsarev P. P. Tsarev
2. Enters information into a personal card (see example below) and vacation schedule (fill in column 10 “Note”).
VIII. VACATION
| Type of leave (annual, educational, without pay, etc.) | Work period | Number of calendar days of vacation | date | Base | ||
| With | By | started | 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 | vacations | Order from |
| paid | monetary | compensation | 13.11.2014 | |||
| № 25 | ||||||
Based Art. 139 Labor Code of the Russian Federation And Provisions on the specifics of the procedure for calculating average wages, approved By Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 , the average daily earnings for vacation pay and compensation for unused vacations are calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and by 29.3 (the average monthly number of calendar days).
Let's use the conditions of example 1. I. I. Ivanov is supposed to compensate for 2 days of vacation. I. I. Ivanov’s salary is 20,000 rubles, the pay period has been fully worked out.
The billing period is from 11/01/2013 to 10/31/2014.
The average daily earnings of I. I. Ivanov will be 682.59 rubles. ((RUB 20,000 x 12 months) / 12 months / 29.3). Compensation for part of the vacation exceeding 28 calendar days will be equal to 1,365.18 rubles. (682.59 RUB x 2 days).
Compensation upon dismissal
Let us 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 subject to compensation, and, accordingly, the amount of compensation, it is worth remembering that all unused vacations can be provided to the employee with subsequent dismissal (except for 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 the corresponding request, and the employer must not mind the employee taking vacations.
For your information
The employer has no obligation to provide leave followed by dismissal, even if the employee has asked for it in writing.
Some employers, when considering an application for leave with subsequent dismissal from an employee working under a fixed-term employment contract, immediately refuse, because they are afraid that the fixed-term contract will be transformed into an open-ended one: the leave will go beyond the end of the contract period and then it will be impossible to dismiss the employee... This is an opinion wrong. Part 3 Art. 127 Labor Code of the Russian Federation determines that upon dismissal due to the expiration of the employment contract, leave followed by dismissal may be granted even when the vacation period completely or partially extends beyond the term of this contract. In this case, the day of dismissal is also considered the last day of vacation. However, the last working day on which the employer must issue a work book, make final payments to the employee and take other actions related to 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 resignation letter before the start date of the leave, if another employee is not invited to take his place by way of transfer.
If the employee does not express a desire to use leave with subsequent dismissal or the employer is against it, we proceed to counting the days subject to compensation.
How to determine the number of days of unused vacation? The Labor Code does not establish the procedure for counting them. Therefore, employers still focus on Rules on regular and additional leaves, approved NKT USSR 04/30/1930 No. 169 (valid to the extent that does not contradict the Labor Code of the Russian Federation), and clarifications from the Ministry of Labor.
Yes, according to paragraph 28 these Rules Employees dismissed for any reason who have worked for a given employer for at least 11 months, subject to credit towards the period of work giving the right to leave, receive full compensation. 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 quit due to:
- liquidation of an organization or individual parts of it, 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, the working year is taken, which is different for each employee and begins to flow from the date of hiring, and not the calendar year.
In all other cases, employees receive proportional compensation. Thus, proportional compensation is received by those who have worked from 5.5 to 11 months if they quit for any other reasons than those indicated above (including at their own request), as well as by all those who have worked for less than 5.5 months, regardless of the reasons dismissals.
To calculate, you need to determine how many days of vacation the employee is entitled to per month. To do this, divide 28 vacation days by 12 and get 2.33 days per month.
The employee has been working in the organization since March 10, 2011. The annual paid leave was 21 calendar days in 2012, 16 in 2013, 21 in 2014. He quits on 07/08/2014. How many days of unused vacation is he entitled to compensation for?
During 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 the employee had quit in the situation described in the example a little earlier, for example on June 22, 2014, he would have received compensation for fewer days of unused vacation. And that's why. According to clause 35 of the Rulessurpluses 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 full month. Thus, the resigning employee would need to compensate for 28.99 days (22 + (2.33 x 3 months)).
Many people will have a problem: what to do with the numbers after the decimal point? Unfortunately, the legislator has not regulated this issue, so rounding remains at the discretion of the employer. However, if you want to make such a decision, you need to take into account that rounding here is not done 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 December 7, 2005 No. 4334‑17 ). That is, if an employee, as 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 an employee has worked for more than half a month, then he is already entitled to compensation).
Let us note that if labor legislation establishes an extended annual paid leave for an employee (longer leave for teaching and medical workers, disabled people, etc.), then the number of days of unused leave should be calculated as follows. For example, a teacher is entitled to 56 calendar days of annual paid leave, but he worked for 7 months. Then, upon dismissal, he needs to be compensated 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 that gives 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, his place of work (position) was retained, including the time of annual paid leave, non-working holidays, weekends and other days of rest provided to the employee;
- forced absenteeism due to illegal dismissal or suspension from work and subsequent reinstatement to the previous job;
- removal from work of a person who has not passed a mandatory medical examination through no fault of his own;
- unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year.
Example 4
The employee was hired by the organization on October 25, 2013. In March 2014, he was granted unpaid leave of 21 days. The employee quits in November 2014, the last working day is the 13th. How many days of unused vacation will I be compensated for?
The employee’s working year for which annual paid leave is due is from 10/25/2013 to 10/24/2014. Since the length of service that gives the right to leave includes only 14 calendar days of 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 October 25, 2013 to October 31. 2014.
From November 1 to November 13, the employee worked 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 an employee is entitled to 28 days of vacation per working year, this is the amount that is subject to compensation.
Additionally, we note: if the employee had not taken such a long “administrative” leave, then he would need to compensate 30.33 (28 + 2.33), since from October 25, 2013 to November 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 about paying compensation for unused vacation to part-time employees. Some do not pay compensation at all, and some pay them only if the employee works externally (for another employer). Meanwhile, according to Art. 287 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 vacation 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 matter. This is also stated in clause 31 of the Rules.Summarize
In conclusion, I would like to say that monetary compensation can be replaced not only with the main unused vacation, but also with 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 payment of compensation upon dismissal must be made on the employee’s last working day ( Art. 140 Labor Code of the Russian Federation). But the deadlines for paying compensation for part of the vacation exceeding 28 calendar days during work are not established by law, so we recommend enshrining them in the local regulatory act of the organization that establishes the rules of remuneration.On replacing part of the main rest (exceeding 28 days) with compensation;
From the above rules it follows that the employee has the right to ask for compensation:
- for part of paid vacation exceeding 28 days;
- for additional days of rest.
The provisions of the Labor Code of the Russian Federation determine exceptions, restrictions regarding compensation payments, as well as situations in which these types of payments are mandatory.
| Limitations on the provision of compensation | The employee’s unconditional right to receive compensation |
| Basic rest cannot be replaced by compensation for the following category of workers: persons under the age of majority; pregnant women at any stage of pregnancy; persons exposed to radiation due to the Chernobyl accident; persons working in hazardous conditions (applies to 7 additional days) |
Upon dismissal, an employee has the right to receive compensation in money for unused days of any paid leave (vacation in this case is provided only at the discretion of the employer) |
The employer retains the right, but not the obligation, to award compensation in lieu of vacation leave. Thus, quite legally, the head of an organization has the right to refuse compensation for vacation for production reasons. When making a decision, the responsible person also takes into account the conditions and procedure for providing compensation payments specified in the organization’s collective agreement.
The procedure for processing compensation payments in lieu of paid leave
The sequence of actions of an employee when receiving compensation is the same in all situations. He is the initiator, therefore, he will have to contact the employer with this request in writing.
| Stages of registration | Explanations |
|
An employee writes an application to replace vacation with compensation payment |
The appeal is drawn up in free form, indicating the reason for non-use of vacation days, after which it is submitted to the employer for approval |
| Consideration of the submitted application by the employer | If there are no objections, the employer makes a corresponding note on the application |
|
Issuance of an order for payment of compensation |
There is no standard form for this type of order. Therefore, it is compiled arbitrarily, taking into account uniform requirements (as a standard, it should include an order to replace vacation with compensation indicating the number of days, a reference to the basis, and the appointment of persons responsible for the execution of the order) |
|
Making notes in personnel documents |
Section VIII “Vacation” of the applicant’s personal card records the type of vacation, period of work, number of days that are compensated, with a note about replacing these vacation days with this payment In the vacation schedule in column “10” an entry is made about the replacement made with reference to the order |
| Payment of money to the applicant | After documentation, the accounting department has the right to accrue the money due to the applicant |
An employee has the right to apply for compensation payment after 6 months of work in one organization. It is from this moment that he acquires the right to the next vacation and related privileges.
Common mistakes when replacing vacation with compensation
| Description of the controversial situation | Correct solution |
| The employee demands (and does not ask) to pay money for 3 days of extended paid leave, referring to the fact that this is the part of the rest that is due to him in addition to the established 28 days of paid rest. Accordingly, the director is obliged to replace this part (3 days), in the employee’s opinion, with a compensation payment. The employer refuses to pay the applicant for production reasons |
In this situation, the applicant has no right to demand compensation from the director. He can only apply to replace 3 days of vacation with compensation. The employer is not obliged to grant his request. Within the framework of the law, the director has the right to both agree and refuse this payment |
Expert opinion on the issue of replacing leave of state civil servants with compensation
The Ministry of Labor in its next letter No. 18-4/10/B-180 dated January 18, 2016 draws the attention of civil servants to the amendments to Article 46 of Federal Law No. 79 dated July 27, 2004 that have entered into force. The innovations concern the minimum duration of annual leave, the procedure for transferring part of it to the next year, as well as its partial replacement with compensation payments.
The new edition of this article determines the strict right of this category of employees to a minimum 28-day annual rest. Moreover, the employer (his representative) is allowed only in exceptional situations to transfer to the next year that part of it that exceeds 28 days. This part can also be replaced with a compensation payment based on a written request from the employee and if the financial capabilities of the wage fund are available at the time of the request.
Thus, a civil servant can exercise the legal right to use the vacation in full or ask the employer (his representative) to pay him compensation in money for the part of the vacation that exceeds the established 28 days. If the excess portions of rest are not used in a timely manner and are not compensated, then a compensation payment is provided for them upon dismissal from service (termination of contract, dismissal from position).
This letter is certified by the Deputy Minister of the Ministry of Labor, Actual State Councilor of the Russian Federation, 2nd class, Alexey Anatolyevich Cherkasov.
Example 1. Application for partial replacement of vacation with monetary compensation
Manager Valentinova S.N. has been working at Project LLC for the sixth year. By the beginning of the current year 2018, the employee had unused days of annual leave for the period from 12/06/2016 to 12/07/2017. We are talking about the part of the regular vacation that exceeds 28 days.
To receive money for unspent vacation days (there are 9 in total), the manager must write an application for compensation payment. Typically, the applicant must indicate in the application:
- the number of unspent vacation days for which money should be paid (nine);
- type of recreation (next).
Example 2. Order for partial replacement of vacation with monetary compensation
The data from the first example is taken as a basis. So, Valentinov’s manager S.N. Project LLC turned to the director with a request to compensate with money 9 days of unspent vacation for the past period.
The registration procedure requires the approval of the application by the employer. Next, the personnel department employee must, based on this, issue an order to partially replace the compensation leave. The ready-made standard order of the director contains:
- order to replace rest with compensation (indicating the number of days to be compensated);
- the basis for this decision;
- determination of responsible persons who will make notes in the documentation and credit the employee with money.
Answers to frequently asked questions
Question #1: How can an employee receive compensation for part of the unused vacation time along with the main vacation?
As a standard, he should write one application for compensation and rest in the name of the director. It must indicate the type, time of rest, number of days for which money needs to be paid.
The employer, following a uniform procedure, must leave his resolution on the application submitted to him, i.e., express consent. After this, personnel department employees issue an order and make appropriate notes in the documentation (personal card, vacation schedule). Next, the accounting department issues the money due to the applicant.
Question #2: The employee did not use the next annual leave, so it was completely transferred (all 28 days) to another year. It turns out that this year he has the right to 2 vacations (56 days). Can he take compensation instead of last year's vacation?
No, the employer will refuse him. The vacation was postponed, but its duration did not change. In this situation, the employee and the employer have the right, by agreement: to divide the vacation into parts or combine it.
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