Article dismissed of his own free will. The procedure and examples of settlement with an employee upon dismissal of their own free will

The Labor Code legitimizes the obligation of the employer to issue all payments due to the resigning employee, even if he resigns for violation of labor discipline. Such payments include due salary, provided (in various cases) benefits and compensations. Let's figure out how compensation for unused vacation upon dismissal is calculated, and on what indicators it is based.

When compensation for unused vacation upon dismissal is not accrued

Art. 127 of the Labor Code of the Russian Federation provides for the obligatory payment of compensation for the remaining vacation to retiring employees of any company. It is not paid to persons cooperating on the basis of GPC agreements, since they are not subject to the norms of labor legislation (Article 11 of the Labor Code of the Russian Federation), as well as in cases where the next vacation was used on the day of dismissal, or the employee worked at the enterprise for less than 15 days.

Calculation of compensation upon dismissal in 2018

For calculations it is necessary to determine:

the number of unused vacation days payable;
billing period;
average daily income.

How to calculate the number of days of unused vacation

Most companies set the standard duration of vacation per year, defined in the Labor Code of the Russian Federation - 28 days, i.e. there are 2.33 vacation days per month (28/12). The billing period is a working (not calendar) year, i.e. 12 months preceding the dismissal.

If at the time of dismissal an employee has worked for more than 11 months, then he is paid compensation for 28 days, as for a full year (letter of Rostrud No. 1519-6-1 dated 12/18/2012). If the period worked is less than 11 months, the number of vacation days is calculated in proportion to the hours worked.

When calculating, rounding rules are applied, taking into account only full months, i.e., an incompletely worked month is considered full if the employment in it is more than 15 working days, and is not taken into account if it is less.

In a situation where the employee and the employer decide to terminate the employment relationship, it is necessary to correctly calculate the average earnings for dismissal payments and the settlement period when calculating compensation.

The procedure for payments upon termination of employment

Upon termination, an employee is entitled to several types of payments:

salary for the last calendar month before dismissal;
compensation for unused vacation in the current working period;
issuance of average earnings, the amount of which is calculated depending on the reason for dismissal (reduction, refusal to transfer, conscription, etc.);
other compensations provided for by a particular employer, for example, in a collective agreement.

All types of payments must be transferred to the former employee. An exception may be a bonus if the internal regulatory documents of the employer establish the procedure for its payment after the period for which it is due.

For example, an employee quit in the middle of the month, according to the collective agreement he is entitled to a bonus. The same document establishes that it is calculated and paid based on the results of the implementation of the planned indicators for the month and is issued the next month. In this case, the former employee will be transferred later than the date of dismissal.

If the date of dismissal of the employee falls on a weekend, then he must receive all the money on the last working day.

Example: at the request of the employee, the employment relationship is terminated on December 12. According to the calendar, this day falls on Saturday and is a holiday. This means that all payments are supposed to be transferred on the last business day, i.e. December 11th.

If you give compensation and salary payments later than the date of dismissal, then this situation may become a reason for a complaint to the court. For an organization where an employee left, this is fraught with fines and additional costs.

For the correct calculation of all payments, initially determine the period for which they are due, and the time period for calculating the average earnings.

Settlement period upon dismissal

The duration of this time interval depends on what it will subsequently be used for. This may be the period of time for which the resigning employee is entitled to wages, the period used to calculate the average earnings or the remaining days of vacation.

When determining the amount of salary due to the dismissed person for the time actually worked, the billing period is equal to the number of days worked by this person in the calendar month before the date of termination of employment. In most cases, the legislation provides for the payment of salaries at least twice a month. Therefore, the amount of the advance payment received is deducted from the final settlement with the employee.

Example: an employee quits on the 25th. On the 14th he received an advance payment for work in the first half of the month. The salary is calculated for the period from the 1st to the 25th and the amount of the advance payment received on the 14th is deducted from it.

If the date of dismissal falls on the period before payment, then all days in the working month are included.

Unused vacation days

To calculate unused vacation days, the billing period will be not the calendar, but the current working year. When determining vacation days in the current working period, several points should be taken into account:

First, when calculating the actual number of months worked in the current working year, the month in which more than half of the days are worked is considered a whole month. This means that if the date of dismissal falls on the second half of the calendar month, then it is counted as fully worked out. A month in which less than half of the days worked is not taken into account.
Secondly, if a person has worked 11 months in the current working period, then he is entitled to leave in full.

When calculating unused vacation days in a part-time year, two methods are used. One of them was proposed back in 1930 (Regulation No169 of 04/30/1930). It is used by some organizations, as well as by the courts, when deciding on the payment of compensation in disputes between an employee and an employer.

According to this method, the total number of vacation days is multiplied by the months worked in the current working year. The resulting number is then divided by 12.

The second calculation method was proposed by the Federal Service for Labor and Employment (letter No. 944-6 dated 06/23/2006).

According to it, first the number of vacation days per month is calculated, and then multiplied by the hours worked. At the same time, vacation days in one month are rounded up to two decimal places. Taking into account the error in this method of calculation, the first method is more profitable for the employee.

Example: according to the Labor Code of the Russian Federation, the duration of the vacation is set at 28 days. When calculating according to the second method, there are 2.33 vacation days per month.

The employee worked 8 months in the current working year.

According to the first method, it turns out: 8 * 28 / 12 \u003d 18.67 days.

According to the second: 2.33 * 8 = 18.64 days.

After determining the required length of vacation, the departing employee can use them in whole or in part, or receive compensation for unused days. To determine the amount of compensation, average daily earnings are calculated.

Calculation period for determining average earnings

Upon dismissal, a person is entitled to compensation in connection with the reason for dismissal. For their calculation, the average monthly, average weekly or average daily wages are taken.

For a correct and uniform approach to its calculation, the legislation defines the concept of a settlement period (Labor Code of the Russian Federation, Art. 139). Features of determining the time interval and the cash payments included in the average payment are regulated by Decree of the Government of the Russian Federation No. 922 dated 12/24/2007.

As a general rule, the period of time for determining the amount of compensation payments upon dismissal is one year before the date of termination of employment. If an employee worked in the company for less than a year, then the billing period will be equal to the duration of his employment relationship with the company.

Labor legislation allows organizations to set a different duration of this period of time, however, such a situation should not affect the deterioration of the employee's position.

An important fact is that the time and amount of payments are excluded from the billing period when the employee retained average earnings, for example, he was on sick leave or on a business trip.

If for compensation payment it is necessary to determine the average daily earnings, then the average number of days in a month is used. By law, it is equal to 29.3 days.

Features of calculating the billing period

In practice, there is a problem of determining the settlement period upon dismissal on the last day of the month. In the time interval for calculating average earnings, the last month of work is included only if it has been worked out completely before the calendar date of its end.

Example: an employee quits on the last working day of January, which falls on the 30th. In this case, the billing period will be considered from January 01 to December 31. But if the date of dismissal was January 31, then the average earnings should be calculated from February 1 of last year to January 31 of the current year.

Questions from accountants can also be caused by a situation when a person who has previously left the organization is hired for the same position again and, having worked for less than a year, decides to terminate the employment relationship.

In this case, only the time after re-employment is taken for calculation, since at the first dismissal all due compensations were paid.

Example: the driver worked for several years in the organization, and then was fired due to staff reduction. After some time, the position appeared again, and he returned to work. However, after six months, the employee is dismissed by agreement of the parties. When calculating compensation, his salary and other income that the organization paid him over the past 6 months will be taken into account.

Settlement period upon dismissal after parental leave

Sometimes an employee has not had days worked in the last 12 months, for example, all this time the employee has been in and wants to quit without leaving. In this case, for the calculation of compensation payments, the period before the settlement period is used. It is calculated from the last working day before going on sick leave for pregnancy and childbirth, if before that day there were no other grounds for calculating average earnings. This period may be less than 12 months.

For example, a woman got a job on September 1, 2016, and left for maternity leave in February of the following year. To calculate the average earnings, her earnings for 5 months will be summed up.

If the average daily earnings are calculated for the period before the calculated one, then it is increased by the coefficient of wage increase in the billing period.

The labor legislation also provides for a calculation algorithm in case a person does not have a period of actual work for the employer before the date of dismissal. In this situation, the average salary is determined based on the current official salary or tariff rate.

For example, a woman immediately after concluding an employment contract with an employer goes to the hospital, and then she is given a sick leave for pregnancy and childbirth, after which she goes on parental leave for up to a year and a half.

In the event of dismissal, during such a vacation she does not actually have days worked, and all compensation payments to her will be calculated based on the salary due to her position.

An example of calculating compensation upon dismissal

The employee notified the employer of her desire to quit two weeks before leaving parental leave. She has been with the company since February 2013, and went on sick leave in June 2015. At the same time, the employer in January 2017 increased the salary for her position by 10%. The duration of the vacation is 28 days.

She has unused vacation days. To calculate compensation upon dismissal after maternity leave, the calculation period will be the time from May 2014 to April 2015. In this case, the official salary to determine the average daily earnings must be indexed with a coefficient of 1.1.

During the actual performance of work duties, her salary was 15,000 rubles a month, in addition, a bonus of a fixed amount of 5,000 was paid quarterly, and the woman received material assistance from her employer in the amount of 20,000 rubles in connection with her marriage.

The calculation of average earnings does not include the amount of social benefits paid by the employer. In this example, mat. assistance will not be included in the calculation of the average daily earnings.

The employee's working year began in February. She went on parental leave in October 2015. Vacation days remained 8 months before the start of the decree.

Compensation is calculated as follows:

the number of vacation days - 2.33 * 8 \u003d 18.64 days;
total income - 15,000 * 12 * 1.1 + 5,000 * 4 \u003d 218,000 rubles;
average daily earnings - 218,000/12/29.3 = 620.02 rubles;
compensation for unused vacation - 620.02 * 18.64 \u003d 11,557.17 rubles.

In the event that an employee got a job in May 2015, and then immediately went on sick leave, after which a sick leave for pregnancy and childbirth was issued, payments to her will be calculated based on the current salary for the position. In this example, it will be 16,500 rubles.

Russian legislation clearly defines the periods of time that are used to calculate all types of payments upon dismissal of employees and the methodology for calculating them. In addition, the employer has the right to set other time intervals for calculating the average earnings of his employees. Such settlement periods should not contribute to a reduction in the amount of payments upon dismissal, in comparison with those established by law.

Calculation of compensation upon dismissal in 2018 - an exampleyou will find it in our article. The calculation has its own differences if the employee has an incompletely worked period or no earnings. Consider these and other nuances of calculating compensation..

What does severance pay mean?

Speaking of leave compensation upon dismissal, they usually mean its most general case, which is related to absolutely all employees. This is compensation upon dismissal in the form of vacation pay due for vacation not used during the period of work. Every employee has the right to annual paid leave, and at the time of dismissal, part of it (and sometimes leave for several years) may not be used. Art. 127 of the Labor Code of the Russian Federation obliges, in case of dismissal, to pay this part, no matter what its actual duration is. The reason for the termination of the employment contract does not matter when calculating compensation upon dismissal.

How to calculate the days of compensation upon dismissal? The duration of a standard annual leave is 28 calendar days (Article 115 of the Tax Code of the Russian Federation). However, for some categories of workers, it is lengthened (Articles 116-119, Article 348.10 of the Labor Code of the Russian Federation). Vacation pay upon dismissal is calculated based on the length of vacation that is due to a particular person, taking into account the lengthening, if any. Holidays do not include public holidays.

The beginning of the year to which the annual leave will relate is determined by each employer for each specific employee individually - from the first day of his employment for this job (clause 1 of the Rules on Regular and Additional Leaves approved by the USSR NCT on April 30, 1930 No. 169), and the end may be shifted if, during the calendar year calculated from the starting date, the employee has periods that are not included in this length of service (Article 121 of the Labor Code of the Russian Federation).

The calculation of compensation upon dismissal in 2018 is also made for persons issued under a fixed-term (up to 2 months) employment contract (Article 291 of the Labor Code of the Russian Federation) or for a part-time job (Article 93 of the Labor Code of the Russian Federation). With a fixed-term contract, vacation pay is calculated based on the fact that each month worked corresponds to 2 working days of vacation.

It is not necessary to accrue compensation for unused vacation upon dismissal of employees:

drawn up under a GPC agreement (Article 11 of the Labor Code of the Russian Federation);
who worked less than half a month (clause 35 of the Rules on Regular and Additional Leaves, approved by the NCT of the USSR on April 30, 1930 No. 169).

The accrued compensation upon dismissal is subject to insurance premiums, personal income tax and is paid along with other amounts due to the employee on the last day of his employment (Article 140 of the Labor Code of the Russian Federation).

Read about whether it is possible to receive vacation pay compensation without resorting to dismissal.

Formula for calculating compensation in 2018

How to correctly calculate leave compensation upon dismissal? In 2018, there are no innovations in the calculation of leave compensation upon dismissal compared to 2017. The formula is still used, according to which the amount of compensation upon dismissal is equal to:

KNO = SDZ × NDO,

KNO - compensation for leave upon dismissal, if the leave was not used;

SDZ - the value of the average daily earnings;

NDO - the number of unused vacation days.

When calculating compensation upon dismissal, the average daily earnings of Art. 139 of the Labor Code of the Russian Federation prescribes to determine as follows:

SDZ \u003d NZP / 12 / 29.3,

WIP - wages accrued for the estimated period of time (12 months before the month of dismissal);

12 - the number of months in the billing period;

29.3 - the average number of calendar days per 1 month of the billing period.

However, not all income paid by the employer and, accordingly, not all periods during which the employee works for the employer can be taken into account when determining the average daily earnings (clause 5 of Decree of the Government of the Russian Federation of December 24, 2007 No. 922). In particular, it does not include accruals attributable to periods of vacation, sick leave, and business trips.

In this case, the work time taken into account for calculating the average daily earnings will be the sum of the number of days corresponding to the months worked in full, the number of days in each of which will be taken as 29.3, and the amount of calendar days of work for incomplete months (clause 10 Decree No. 922).

The procedure for accounting in the calculation of bonuses related to wages depends on the period for which they are paid (clause 15 of Resolution No. 922).

In addition, with regard to income for the billing period (12 months), the following situations are possible:

Income took place only in the month of dismissal. Then the average daily earnings will be calculated for this one month, dividing the salary accrued in it by the average number of calendar days calculated for this month (clause 7 of Resolution No. 922). The latter value will be calculated from the number 29.3 in proportion to the share of calendar days corresponding to the time of work in the month of dismissal, in the total number of days in the same month (clause 10 of resolution No. 922).
There was no income in the billing period. Then the period for calculating the average daily earnings is shifted to the period preceding it of the same duration (clause 6 of Resolution No. 922). And if there is no income even there, then the average daily earnings will be calculated from the salary or the tariff rate (clause 8 of resolution No. 922).

Leave compensation upon dismissal: calculation

The number of days of unused vacation is determined on the basis of the fact that 28 calendar days correspond to a full year of experience giving the right to it, and 2.33 calendar days to each full month. When the last month of service turns out to be incomplete, then, when calculating compensation upon dismissal, it is taken into account as full if the number of days of work in it exceeds half a month, and it is not taken into account when the period worked in it is less than half a month (clause 35 of the Rules on regular and additional vacations approved by the NCT of the USSR on April 30, 1930 No. 169).

There are situations in which it becomes mandatory to pay vacation compensation upon dismissal for a full year, although in reality it turns out to be not fully worked out (clause 28 of the Rules on regular and additional holidays, approved by the USSR NKT on April 30, 1930 No. 169). These are the cases when the employee worked:

more than 11 months and they all entered the length of service that gives the right to leave;
from 5.5 to 11 months, but is forced to quit due to a reduction in the number, due to entering the military service, being sent to study or other work, or due to being unfit for work.

The number of vacation days determined by calculation when calculating compensation upon dismissal, the legislation does not require rounding. Therefore, it is possible to use a number with decimal places in the calculation of vacation compensation upon dismissal, or it is possible to reflect in the accounting policy the provision for rounding it to an integer. When deciding how compensation for leave is calculated upon dismissal, it should be borne in mind that rounding should always be done in favor of the employee (letter of the Ministry of Health and Social Development of the Russian Federation of December 7, 2005 No. 4334-17).

Special situations for accrual and payment

Difficulties in determining the amount of leave compensation upon dismissal may arise in the following situations:

In the period for which the right to leave is determined, there are time intervals that are not included in the length of service. In this case, the beginning of the countdown of the year following the one including such intervals is shifted by the corresponding number of calendar days. And vacations at their own expense shift the beginning of the next year only if their total duration for the year exceeds 14 calendar days (Article 121 of the Labor Code of the Russian Federation) and the shift occurs by the difference between the actual number of vacation days without pay for the year and 14 calendar days days.
The employee quits before the expiration of the year for which he has already taken vacation in full. In this situation, upon dismissal, they withhold from him that part of the vacation pay that corresponds to the overpaid part of the vacation (clause 2 of the Rules on Regular and Additional Vacations, approved by the USSR TNK on April 30, 1930 No. 169). However, if the dismissal occurs on grounds that give the right to pay vacation pay in full, then compensation payments upon dismissal attributable to the overpaid part of the vacation are not considered superfluous.

For information on how they calculate vacation pay attributable to the overpaid part of the vacation, read the article .

If the employee goes on vacation with subsequent dismissal, the calculation of compensation and its payment must be made on the last working day. On this working day, preceding the vacation with subsequent dismissal, the employee must receive the final settlement, work book and other documents necessary for further employment (letter of the Federal Service for Labor and Employment dated December 24, 2007 No. 5277-6-1).

Can I check online

It is possible to check the manual calculation of compensation upon dismissal via the Internet. To do this, it will be necessary to enter all the information requested by it into the corresponding program, taking into account the features described above. The program will process the entered data and issue the estimated amount of compensation.

Results

Payment of compensation for unused vacation upon dismissal of an employee is mandatory for the employer. Its calculation must be done taking into account all the features of determining the average daily earnings and the number of days of unused vacation. Overpaid vacation pay is subject to withholding. The calculation can be checked online.

The issue of calculating compensation for unused vacation is one of the most common. It is important to understand how such payments are correctly calculated, and in what cases they can be demanded. About this and much more - right now.

Each employee under the current labor legislation is guaranteed a certain number of days per year when he is given the opportunity to go on vacation at the expense of the employer. Usually it is 28 days (assuming a full working day). But there are a number of cases when the standard period is increased:

30 days for disabled workers;
31 days for minor citizens working officially, as well as for persons whose working day begins and ends at different time intervals (not standardized);
35 days for citizens who work in hazardous, hazardous industries or in extreme climates, at risk to life;
44 days for employees who territorially carry out their activities in the regions of the Far North and in those places that are equated to it;
56 days for teaching staff.

Thus, there are 3 types of vacation days that the employer provides to his employee on the basis of labor legislation:

The main one, which is guaranteed by the state (28 days).
Unused vacation - i.e. those rest days that the employee did not want to use or did not have time (due to dismissal).
Optional - i.e. all days that are provided in excess of 28 (for example, teachers are entitled to double the vacation period compared to the usual one).

At the same time, the employee is not obliged to use his vacation during the year, since the Labor Code does not directly state that the employee does not have the right not to use his vacation days. On the other hand, not to use the right to rest for 2 years in a row is prohibited. This means that if for some reason the vacation has not been realized by the current year, it goes into the category of unused. Next year, the question of compensation will certainly arise. At the same time, a citizen may not use all the prescribed days for rest or part of them.

Compensation cases

The occurrence of unused days that should have gone on vacation can occur in 2 cases:

The employee quits, and accordingly, he will no longer have time to use the due amount of vacation.
The employee does not quit, but decided not to go on vacation of his own free will. At the same time, there is a procedure for claiming compensation, which is discussed in detail in the corresponding section.

In practice, there are often cases when the employer forces the employee to go on vacation at the appointed time. To do this, a schedule is drawn up in advance, with which all employees are required to familiarize themselves under the signature. If the employee does not agree to rest, the employer may oblige him to write an explanatory note in order to insure himself against possible labor inspection checks.

Calculation of the amount and days of unused vacation

Providing monetary compensation for unused vacation is an unconditional obligation of the employer, the failure to comply with which is a direct basis for going to court.

Calculation of the number of days

The number of days of unused vacation is calculated upon the fact - based on the norm set for the employee (28 or more). The total number of days of annual leave is taken, divided by 12 (by the number of months), then the resulting number is divided by the number of months actually worked. If some part of the days has already been used, it is subtracted.

Calculation of the amount

The amount of funds that will go as compensation for unused vacation is calculated as a simple product of the unused number of days and the average earnings (daily):

The number of months is always considered an integer: if in fact the employee worked for less than 2 weeks, this period is not counted (0), and if more than 2 weeks, it is considered as a full month (1). If the final sum does not result in a whole number, it is always rounded in favor of the worker.

This calculation formula is the simplest, most general case, which does not apply in some situations - they are discussed below.

How is average daily earnings calculated?

The average daily earnings are determined on the basis of the average monthly, and it is calculated in exactly the same way as in the case of determining the payment for a regular (basic) vacation. It does not include amounts that were paid for sick leave and vacations (including additional ones). In general, the formula will look like this:

(A - B) * 29.3 / A

The meanings of the symbols are as follows:

A is the number of common days in the month under consideration (including weekends and holidays).
B - this is the number of days that are not taken into account: we mean the days when the employee was on sick leave or on vacation.
29.3 is the average number of days in a month (the number is not round, since some months have 30 days, some 31, and February 28/29).

Average earnings include all types of bonuses, bonuses for years of service, bonuses for fulfilling the sales plan, etc., but only if they are included in the "white" part of the salary.

Examples

Examples of calculating compensation for unused vacation are given below:

The employee joined the company on April 16, 2016. He was supposed to be granted basic leave from 13 March to 9 April 2017, but he did not wish to use these days. However, the employee decided to quit on June 16, 2017. Accordingly, he is supposed to be compensated for all vacation days for his first year of work (from April 16, 2016 to April 15, 2017), as well as some part of the unused vacation days for the second year (for 2 months of work: from April 16 to June 15). It turns out that he gets 100% vacation pay for 1 year and 1/6 (for 2 months of work) vacation pay for the second year.
The employee got a job at the company on March 1, 2015, and the period from February 1 to February 28, 2016 was supposed to go on vacation for 28 calendar days. However, he agreed with the management that he would take only 10 days off. He further decided to retire on February 1, 2017. Accordingly, he is entitled to compensation for the unused 18 (28-10) days of the first year of work, as well as for all 28 days of work for the second year.
The teacher got a job at the school on September 1, 2015, and the first vacation of 56 days was completely taken off (in the summer of 2016). However, he made the decision to retire from July 2, 2017. Since he worked for a full 2 years, and the first vacation was fully realized, he is entitled to compensation for the second in full - i.e. he must receive funds for 56 days that he did not rest due to dismissal.

Thus, in the calculations it is important to take into account exactly how long the employee has been working in the company, since what time, and how many days he has already managed to take off (or did not take to rest). The specific amount is determined by the average earnings (subject to a "white" salary).

Calculation of compensation in special cases

In some cases, the calculation formulas change:

If the employee's vacation is measured in working days, and not in calendar days, then the formula will be as follows:

Calculation of vacation in working days is possible when the employment contract was fixed-term and concluded for a period of 2 months, as well as in the case of seasonal workers.

If an employee worked for an employer from 11 to 12 months and then decided to leave, he still receives compensation for the entire year (as if he had worked for 12 months). However, if the number of 11 months was obtained as a result of rounding, then the actual number of days worked will be considered.
Finally, an employee who has worked in the company from 5.5 to 11 months is still entitled to pay for a full vacation (as if he had worked for a year), if he leaves not of his own free will, but in connection with:

with the closure of the company (for example, as a result of optimization or bankruptcy);
with downsizing;
with the call of an employee for military service.

The latter case applies only to employees who have worked in the company for up to a year. If a citizen works for more than one calendar year, then compensation for unused vacation will be paid according to the usual rules.

Unused vacation upon dismissal

If the employee intends to quit, this is the simplest case: then all compensation, including those related to unused vacation, will be paid on the last day of his work, when he is given a work book and the final payment is made.

It is important to understand that in this case we are only talking about providing monetary compensation for unused vacation. For example, if a citizen wishes to go on vacation with subsequent dismissal, and, along with the prescribed days of rest, use those unused from last year, there is no such possibility: he can and must be offered only a monetary form of compensation in accordance with average earnings.

Replacing unused rest days with money is not possible for pregnant women and underage workers if they wish to receive it while continuing to work. Those. These categories of citizens receive compensation only in one case - upon dismissal.

Unused leave without dismissal

If there is unused vacation available, it can be used without dismissal. An employee can be compensated for such days in the form of:

additional days to the main vacation, which is supposed to be taken this year;
cash in accordance with the average earnings.

It is very important to understand that the specific decision in what form to give the employee compensation for unused vacation is made only by the employer. The obligation to claim compensation lies with the employee himself - i.e. the citizen himself must raise this issue and write a statement that the employer is obliged to accept from him.

For some categories of workers, compensation for unused days with the money of the year is not possible: these are citizens employed in dangerous and / or harmful working conditions. Those. their unused vacation should be compensated in the form of additional days of rest next year.

The deadlines for granting compensation payments (or additional days) are set by the employer, but they cannot exceed the deadlines within which a citizen must go on vacation this year.

Expert opinion

Chadova Svetlana

Leading Human Resources Specialist, lawyer consultant on labor law, site expert

For example, if an employee must go on regular vacation no later than July 1, then the issue of compensation must also be resolved no later than that day.

If we are talking about unused study leave (for example, a citizen could go to a session, but did not do it or did it partially), then the provision of compensation in money in this case is impossible.

A comparison of both cases is presented in the table.

Application for compensation: sample

If an employee wishes to claim all his unused days, he must write a statement. As a rule, the employer has various application forms, including for such a typical situation. It is compiled in any form, as shown in the sample below.

There is also no established, unified form of the order, therefore it is drawn up arbitrarily.

A mandatory procedure is provided for familiarizing the employee with the order under the signature, as well as with all other documents relating to the employee (reprimand, bonuses, dismissal, etc.)

Liability for failure to provide compensation

The employer must accept the application for consideration, about which a written note is placed. After that, within a few days, the management decides whether to go forward and compensate for unused vacation, as indicated in the application, or provide another form of compensation (in this case, additional days). Those. the employer decides exactly how to compensate, not to compensate or not.

If the fact of violation happened, this is a reason to apply to the labor inspectorate or to the court. In this case, you can demand not only the recovery of funds for unused vacation, but also non-pecuniary damage. In addition, the company will be charged a fine, the amount of which depends on the specific status of the company and its employees (see table).

If compensation is paid to an employee in violation of the deadline, the employer must additionally pay him compensation for the delay in labor payment.

Compensation for unused vacation upon dismissal is an issue that worries every employee who leaves their previous place of work. How to calculate compensation for unused vacation? Correctly answering this question is important for the organization. What points you should pay attention to in order to correctly calculate the amount of compensation, you will learn from this article.

Is compensation calculated for unused vacation upon dismissal in 2019

In practice, there are often situations when an employee does not have time to take all the regular paid leave due to him under the Labor Code. And if such an employee suddenly decides to leave the company, the question arises: what to do with the unused part of the vacation? Should I take the remaining days off or can I receive compensation in cash for them? In addition, does the reason for the termination of the employment contract matter? And how will compensation be calculated for unused vacation upon dismissal?

The Labor Code of the Russian Federation unequivocally answers: the employer company must pay compensation to the former employee for non-vacation leave upon dismissal, that is, for each unused day.

IMPORTANT! The right of an employee to calculate compensation for unused vacation and its payment upon dismissal does not depend on the basis on which the employment contract was terminated (letter of Rostrud dated 02.07.2009 No. 1917-6-1).

Is it necessary to pay vacation pay upon dismissal of one's own free will to an employee who is on vacation?

There are a number of nuances that characterize vacation pay upon dismissal. For example, concerning the appointment of such compensation upon dismissal of their own free will, which the employee made aware of while on vacation.

Regardless of the reason for dismissal, the employer must pay for all non-vacation days of the employee's vacation. The question is in the sequence of actions of the employer if the employee sends a letter of resignation to the company during his vacation. As a rule, these actions are carried out according to the following algorithm:

1. The employer, having received from the employee a notice of dismissal of his own free will, prepares the documents necessary for issuance to the employee after the termination of the employment contract, as well as for the final settlement.

They must be dated two weeks after notification. By agreement between the parties to the employment contract, this period may be reduced.

2. On the day of termination of the employment relationship, the final settlement is carried out.

At the end of the vacation (if it ends after the date of dismissal), the employee must come to the employer's office in order to pick up the work book and supporting documents. At the same time, on the day of dismissal, it will not be superfluous for the employer to send a registered letter to the employee's address with a request to come and pick up the work book or agree to receive it by mail (Article 84.1 of the Labor Code of the Russian Federation).

It is possible, of course, that the employee will have to work out the agreed (or the difference between vacation and 2 weeks) number of days in the company, and only then will he be able to receive a workbook and documents supplementing it.

How to calculate leave compensation upon dismissal

After the organization is convinced of the need for payment, the question arises: how to calculate compensation for unused vacation?

In accordance with the general rule, an employee who decides to leave the company has the right to receive monetary compensation for unused vacation in proportion to the total months worked in the company for which these days were accrued to him (clause 28 of the Rules on Vacation, approved by the NCT of the USSR on 04/30/1930 No. 169, hereinafter referred to as the Rules).

However, if the employee decided to leave his former place of work not of his own free will, but due to the occurrence of the circumstances listed in paragraph 28 of the Rules (for example, there was a reduction in staff), then the employer will have to pay him compensation in the amount of the full year worked , but only on condition that such an employee managed to work in the company from 5½ to 11 months (clause 28 of the Rules).

IMPORTANT! The above rule applies only if the employee did not have time to work in the company for a whole year. Otherwise, upon dismissal, compensation for unused vacation will be calculated in accordance with the general procedure, that is, in proportion to the hours worked.

Other employees (who left the company not due to circumstances from clause 28 of the Rules) are also entitled to full compensation (as for a whole year), but only if they managed to work 11 months on the date of leaving the organization, but did not finish up to a whole year.

Calculation of compensation for unused vacation upon dismissal: formula

In general, the formula for calculating compensation for unused vacation upon dismissal is as follows:

R compensation. = Number of failed days × SR dn W r,

where: P compensation. - compensation amount ;

Number of failed days - the number of unused vacation days;

SR days W r - the employee's earnings on average for 1 working day.

In order to determine the value of SR dn Z r, it is necessary to have information about what salary was accrued to an employee who decided to leave the company during the last 12 months (before dismissal). In addition, you should know exactly how many days out of these 12 months the employee actually performed work functions (clause 5 of the Decree of the Government of the Russian Federation “On the calculation of average wages” dated December 24, 2007 No. 922).

How to calculate compensation for unused vacation: the formula for calculating the average salary

The formula for calculating the average salary of an employee for one working day in order to determine the amount of compensation for non-vacation leave upon dismissal is as follows:

SR dn Z p \u003d ZP / 12 × 29.3,

where: ZP - the salary that was accrued to the employee for the last 12 months;

29.3 is the average number of days in a month.

IMPORTANT! In order to calculate the average salary per day, all payments received by the employee and provided for by the labor or collective agreement are taken into account. At the same time, payments made outside the framework of labor relations (social benefits, material assistance, etc.) are not taken into account (clauses 2, 3 of Resolution No. 922).

If an employee under the Labor Code of the Russian Federation is entitled to leave not in calendar days, but in working days, then in order to correctly calculate compensation , average earnings per day should be calculated differently:

SR days W p \u003d ZP / K 6 days. slave. weeks ,

SR dn W r - the employee's earnings on average for 1 working day;

ZP - salary that was accrued to the employee for the last 12 months;

By 6 days slave. weeks = the number of days the employee worked based on the 6-day workweek calendar.

IMPORTANT! If the employee was not paid a salary for the 12 months preceding the day of dismissal, then the average salary for one day will be determined on the basis of data on earnings accrued for the previous period of a similar length (clause 6 of resolution No. 922).

The calculation methodology has not changed in recent years, therefore, compensation for leave upon dismissal in 2019 should be calculated according to the above formulas and rules.

In order to correctly determine how much money should be reimbursed to an employee for not having time to take the entire vacation, it is important to find out exactly how many days he has left in stock. However, this is not always easy to do in practice.

How to calculate compensation upon dismissal: counting days

First of all, it is necessary to find out what is the "holiday" experience of an employee who decides to quit. That is, for how many full months of fulfilling his duties in the company, he is entitled to the corresponding number of vacation days.

It is rare for someone to have an even number of months worked at the time of dismissal. Much more often in practice, a different situation is common: on the day of dismissal, a month has not been fully worked out. How to calculate compensation upon dismissal in this situation is described in clause 35 of the Rules:

if more than half a month has been worked out, such a month must be taken into account as a full one;
if less than half a month is worked, such a period is not taken into account.

IMPORTANT! For the purposes of calculation, a month is understood not as a separate calendar month, but as a month for the actual performance of labor functions by an employee in a particular company from the moment he was admitted to the company (for example, from June 16 to July 16).

After determining the "holiday" experience, the accountant must calculate the number of days of unused vacation. How to calculate compensation upon dismissal depends on which days the employee was accrued vacation - calendar or working.

If the vacation was provided in calendar days, then you need to proceed as follows.

For each month of work, an employee is credited with 2.33 vacation days (letter of Rostrud dated October 31, 2008 No. 5921-TZ). Further, by multiplying the value of 2.33 and the "holiday" experience, the total number of vacation days is calculated. After that, those days that the employee has already taken off earlier are subtracted from the total value.

IMPORTANT! The exception is those persons who managed to work in the company for more than 11 months, but decided to leave it without having worked in the company for a year. In such cases, the organization pays compensation in the full annual amount, that is, as if the year had been worked out in its entirety.

The formula for calculating unused vacation days is as follows:

Number of failed days = Number of months slave. × 2.33 - D isp. ,

Number of failed days . - the number of unused vacation days;

Number of months slave. - the number of months during which the employee was registered in the company;

D isp. - the number of vacation days used by the employee.

IMPORTANT! When calculating compensation, the days remaining from vacation should be rounded in favor of the employee (upwards), and not according to arithmetic rules.For example, an employee is admitted to the organization on 03/28/2019, and leaves on 06/05/2019. In this case, the number of days of unused vacation is 4.66 calendar days (2.33 calendar days for the period from March 28, 2019 to April 27, 2019 and 2.33 calendar days for the period from April 27, 2019 to May 26, 2019. The period from May 27 to 05.06 is not taken into account because it is less than half a month).

Consider how to calculate vacation compensation upon dismissal if an employment contract was concluded with the employee for the period of seasonal work. In this case, vacation is accrued according to the Labor Code of the Russian Federation in working days (Article 295). For 1 month of work, in this case, not 2.33 calendar days, but 2 working days of vacation are required (Article 139 of the Labor Code of the Russian Federation).

Therefore, the formula for calculating the remaining vacation days will be slightly different:

Number of failed days = Number of months slave. × 2 - D isp.

Calculation in non-standard situations

When calculating the payment for unused vacation, the following situations may arise:

The dismissed person worked for less than half a month - he is not credited with compensation (clause 35 of the Rules on regular and additional holidays, approved by the USSR TNKT on April 30, 1930 No. 169).
Income is present only in the month of dismissal. Then the average earnings are determined for this month by dividing the accrued salary by the estimated value of the average number of calendar days in it (clause 7 of Decree of the Government of the Russian Federation of December 24, 2007 No. 922), which is calculated from the number 29.3 in proportion to the share of calendar days of work in the total number of days in the month of dismissal (clause 10 of the Decree of the Government of the Russian Federation of December 24, 2007 No. 922).
There was no income in the billing period. Then, to calculate the average earnings, they take the same period preceding it (clause 6 of the Decree of the Government of the Russian Federation of December 24, 2007 No. 922). If there is no income in it either, then the average earnings are calculated from the salary or tariff rate (clause 8 of the Decree of the Government of the Russian Federation of December 24, 2007 No. 922).
In the calendar year considered for calculating the number of vacation pay days, there were vacations at their own expense, and their total duration for the year exceeded 14 calendar days. The difference between the actual length of holidays at one's own expense and 14 calendar days should reduce the period for which the holiday will be paid.
The employee took leave in advance and then leaves without having worked out the calendar year related to him in full. Overpaid vacation pay must be withheld from him (clause 2 of the Rules on regular and additional holidays, approved by the USSR TNK on April 30, 1930 No. 169), if there are no grounds for paying them in full.

Compensation for unpaid leave upon dismissal: payment procedure

IMPORTANT! If the resigning employee for some reason was not at the workplace on his last working day, then the company is obliged to pay all amounts due no later than the next day after the dismissed employee submitted the settlement request.

Therefore, on the last working day, an employee who decides to leave the place of work must receive compensation from the company for non-vacation leave.

Compensation for non-vacation leave can be documented using a form developed by the employer independently, or a unified form No. T-61.

How to calculate compensation for unused vacation upon dismissal, if the vacation is additional

Often there are situations when an employee who has decided to leave the company did not have time to spend not only his annual leave, but also did not take advantage of the days of additional leave.

IMPORTANT! Such leave is granted to an employee under a collective agreement. For example, a collective agreement may state that upon reaching a certain length of service in the company, several additional days are required for vacation.

In such a situation, it is important to remember that the days of additional leave must be compensated in accordance with the general procedure (described above), i.e., as if they were days of regular annual leave. This conclusion follows from Art. 127 of the Labor Code of the Russian Federation, which states that upon dismissal of an employee, the employer must compensate him (in monetary terms) for all unused vacations.

Therefore, when calculating compensation for unused vacation upon dismissal in 2019, it is important to clearly follow the general procedure described above.

We talked in detail about compensation for unused vacation without dismissal .

In addition to compensation for non-vacation leave, the employer is obliged to pay wages to the employee. Find out how to calculate it correctly.

Compensation for layoffs in 2019

A special situation arises if the company cuts staff and lays off workers. In this case, the dismissed employees are supposed to pay compensation upon reduction - in 2019 it includes severance pay, including compensation for non-vacation leave.

NOTE! In the event of dismissal due to staff reduction, it is impossible to deduct vacation pay paid in advance from the employee (part 2 of article 137, subparagraph 2 of part 1 of article 81 of the Labor Code of the Russian Federation).

Results

Calculating compensation for unused vacation upon dismissal of an employee is a task that requires the accountant to have a clear knowledge of the relevant labor laws, as well as an understanding of the specifics of calculating the average employee's earnings per day and, accordingly, vacation days due to him.

It is important to remember that the answer to the question of how to calculate vacation compensation upon dismissal depends on how the employee is supposed to accrue vacation days under the Labor Code of the Russian Federation: in calendar days or in working days. The organization must compensate for unused vacation to a departing employee on the last day when he works. At the same time, the calculation of compensation for unused leave upon dismissal should be made for all unused days of both annual and additional leave.

If the employee took vacation in advance and decided to quit, the employer has the right to withhold funds for unworked vacation days. Find out how to correctly calculate the amount to be withheld.