Nuances of calculating and paying compensation for unused vacation

Fired without compensation for unused vacation...

• unpaid wages;
• premium;
• money for untaken vacation;
• severance pay (optional).

If on the day of dismissal the employee does not receive compensation for all days of unused rest, the employer will face unpleasant consequences.

• Interest will accrue for each day of delay in payment at the rate of 1/300 of the refinancing rate.
• Payment of moral damages to an employee is possible (see: Art. No. 237 of the Russian Labor Code). Appointed by the court or established by mutual agreement.
• Fine (Article No. 237 of the Labor Code, Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

How to get money instead of vacation? The “vacation” schedule does not always coincide with the wishes and capabilities of workers. Therefore, people either use only part of, for example, 10 days, or completely postpone the planned vacation.

What to do if the boss delays the payment?

In the event that the required amounts have not been paid on time, the employee must take the following steps:

1. Contact your employer in writing with a complaint. In it, he must indicate exactly what amount was not paid, and within what period the former employer must pay it. This is not a mandatory stage, however, in a legal dispute, the lack of a response to the claim will be an additional trump card for the employee.
2. File a complaint with the supervisory authorities (Rostrudispectorate, prosecutor's office, etc.). Often this is where the dispute ends: by fulfilling the order, the employer pays off.
3. File a lawsuit to collect unpaid funds. In this case, you can demand additional compensation: compensation for moral damage (if non-payment caused moral suffering), interest for the use of other people's money, etc.

Liability and fines

If the management of an enterprise does not pay money to a dismissed employee on time, it is liable in the following order:

1. Civil law. Clause 55 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of 2004 established that in the event of a delay, the employer must index the amounts paid to the employee.
2. Labor. Art. 236 of the Labor Code of the Russian Federation indicates that for each day of delay a penalty is paid in the amount of 1/150 of the key rate of the Central Bank for each day of delay.
3. Administrative. Part 6 art. 5.27 of the Code of Administrative Offenses of the Russian Federation provides for a fine for delay in payments.
4. Criminal in accordance with Art. 145.1 of the Criminal Code of the Russian Federation.

You will find detailed information on the procedure for terminating an employment contract with an employee at the initiative of the employer in a separate article. Read our other materials about the dismissal of a disabled person, an employee on a probationary period, a pensioner, a part-time worker, as well as about the termination of a fixed-term employment contract.

The calculation provided for the dismissal of an employee at the initiative of the employer provides for the thorough payment of all compensation due to him. In case of violation, the culprit will face quite severe penalties.

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Compensation for vacation without dismissal

The Constitution of the Russian Federation guarantees every worker the right to leave, during which the employee retains his position and workplace. In addition, rest days are paid by the employer. Or compensation may be issued for unused vacation without dismissal.

It is calculated based on the employee’s average salary for the past year. What is a vacation? After 6 months of continuous work in one place, the employee has the right to leave.

After 11 months, the employer must provide the employee with paid leave. Subsequently, the team members go on vacation in accordance with the schedule approved by the organization no later than 2 weeks before the new year.

This article will look at a vacation pay calculator. Standard option Labor legislation guarantees a standard leave of 28 days.

How long is the rest?

The Labor Code mentions three types of annual paid rest:

• main leave;
• main extended;
• additional.

When an employee terminates his employment relationship, he will be reimbursed in cash for all accumulated but not completed trips to the sea. But what if he continues to work, can he be paid compensation for unused vacation without being fired?

Basic legislative principles regarding the first type of leave - basic:

1. Any working person needs to rest every year he works. During his vacation, he retains his position and average salary - 114 st. (all articles mentioned in this text are taken from the Labor Code).
2. The duration is the same for everyone - 28 days - 115 tbsp.
3. To qualify for vacation, you must earn personal vacation time. It is called a working year (12 months), and starts from the moment of entry into the enterprise, and not from the first of January - “Rules on regular and additional leaves” N 169.
4. You’ve just started work, and six months have flown by, and you can already take a vacation. As if in advance. In the following years (of course, if you continue to work here) you will be able to take vacation at any time, guided by the vacation schedule - Art. 122.
5. Vacation leave is calculated in calendar days.
6. You cannot deprive a hard worker of legal leave for two years in a row - Letter of Rostrud 473-6-0.
7. If someone has a vacation of more than 28 days, then these days can be compensated with money, with the consent of the boss - Art. 126.
8. Public holidays are not included in vacation - 120 Art.
9. Rest can be divided, but so that one part is not less than fourteen days - 125 tbsp.

There are situations when a trip to the sea needs to be postponed to another year.
Such cases are listed in Articles 124 and 125. For example, your absence disrupts the normal functioning of the organization. Which, of course, is flattering for you, but is often a reason for your bosses to disrupt your plans. Although Rules No. 169 were written by the Commissioners from the Labor Department in 1930, they are still valid today, of course, where they do not contradict the Labor Code (423 Art.)

And if an employee has not worked for 6 months, but needs a vacation, can he count on it?

Yes, there is a category of citizens who should be provided with rest upon request:

• young people under eighteen years of age;
• those who have adopted a baby under 3 months of age;
• women before maternity leave (as well as after) have the right to take off what is due - Article 122;
• husband, if his wife is on maternity leave – 123 Art.;
• parent of a child with a disability – Article 262.1;
• part-time workers who took leave from their main job – 286 Art.

The employee must express on paper his desire to take a break ahead of schedule. It would be better to receive confirmation of your request so that the application does not get “lost” among other papers on the personnel officer’s desk.

The following categories of citizens have extended basic paid leave:

• those under 18 years old can rest for 31 days at any time - 267 Art.;
• disabled people have 30 days - 181-FZ, Article 23;
• teachers rest for 42 or 56 days (depending on the position) - Article 334, Resolution No. 466;
• judges have 30 days at their disposal, and those working in the Far North – 51 (Law No. 3132-1). Moreover, travel to the sea and back is not included in the vacation period;
• employees of the Investigative Committee are allotted 30 days, and in harsh climates from 45 days, also without taking into account travel time - 403-FZ;

Prosecutors, civil and municipal employees, rescuers, federal firefighters, and police officers have similar extended leaves.
Another type of leave – additional – is not available to all citizens, but only to those who are mentioned in the Law and various regulations (Articles 116 – 119):

• holders of professions with hazardous working conditions - List of the USSR State Committee for Labor No. 298/P-22;
• who has an irregular day (Article 101);
• residents of the Far North and similar areas;
• workers in our country’s representative offices abroad – 339 items;
• athletes, coaches – 348.10 st.;
• some health workers (psychiatric, tuberculosis hospitals dealing with HIV-infected people) - Article 350, Resolution No. 482;
• doctors and nurses of general practice after 3 years of work in their specialty - Resolution number 1588;
• who has a special nature of work (seasonal, transport, aviation);
• victims of the Chernobyl nuclear power plant accident;
• who received disability at work - 125-FZ;
• working pensioners only on the initiative of their superiors - Article 128;
• judges, taking into account their experience.

The duration of additional leave may be longer than the established norms if management bothers. It cannot be used separately from the main one.

Vacation compensation without dismissal

In order to correctly calculate compensation for vacation days not taken off and for days exceeding standard rest, or upon dismissal, you should find out the employee’s average salary per day. The calculation is made based on the employee’s income received over the last 12 months.

And then it turns out that the average daily earnings will be: D/12/29.3. In this formula, D is the employee’s earnings for the year, 12 is the number of months in a year, 29.3 is the value that represents the average number of days in a month.

Payment amount

The size of payments, or rather the compensation included in them, mainly depends on several factors.

These can include:

• date of dismissal of the employee;
• salary amount;
• time elapsed since the last salary;
• time elapsed since last vacation.

All compensation is calculated using special formulas indicated below. In addition, severance pay is included in the amount of payments, if necessary.

How to calculate

If you can still sort out the calculation of wages, then compensation for unused vacation should be given more attention.

The basic formula for calculating compensation upon dismissal is the employee’s average daily salary multiplied by the number of vacation days.

To calculate, you first need to find the average daily salary (hereinafter M) and the number of days of unused vacation.

To calculate “M” you will need to find out the employee’s total income that he received during the calendar year before his dismissal. Once found, it must be divided by 12 (the number of months in a year) and 29.3 (the average number of days in a month). As a result, the average daily salary can be determined.

Now you need to calculate how many days the proposed vacation should last:

1. To do this, it is worth calculating the number of months that have been worked since the end of the last vacation.
2. The resulting number is multiplied by a factor of 2.33 and rounded to the nearest whole number.

It is worth clarifying that this formula is only effective for those organizations that provide employees with 28 days of vacation. The rest need to turn to the labor inspectorate for help.

To calculate it, you need to know the refinancing rate from the Central Bank (C), as well as the amount of debt (S) and the number of days that have passed since the end of the day of dismissal (D).

After all the circumstances have been clarified, it is enough to substitute the values ​​into the formula: “C/100% × 1/300 × S × D.”

An example of calculating severance pay and compensation for unused vacation upon dismissal

Petrova resigned on July 20, 2014 due to changes in working conditions. Severance pay should be calculated in a single amount (05.2014 and 06.2014 are taken into account). Petrova received a salary of 10 thousand rubles. She also received about 4 thousand rubles in hospital benefits (not taken into account when assigning severance pay).

Petrova did not have time to rest during her 28-day vacation.

• Let's calculate the average daily income (for the above 2 months, 33 days were worked):

10,000: 33 = 303 rubles.

• Salary calculation based on average monthly number of days (20):

303 x 20 = 6060 rubles - this will be the amount of severance pay.

• Amount of compensation for unprovided leave:

303 rubles x 28 days = 8484 rubles.

Is it subject to personal income tax?

For working employees, income and compensation for unused vacations are taxed, as well as severance pay amounts, the amount of which exceeds the established ones several times. Those who quit are exempt from taxes.

Taxation does not provide for personal income tax deductions from income that relate to payments to employees in the event of their dismissal.

This is also important to know:
How to draw up an order to dismiss an employee

The same applies to payments for unused vacations, as well as severance pay. But if the latter was not transferred and was included in the company’s income, then the employer is obliged to pay NNP. Vacation compensation upon dismissal in 2021 is mandatory.

Is it possible to fire an employee without compensation for unused vacation?

• workers of the Far North and territories that have a similar status;
• workers working in hazardous working conditions;
• workers with hazardous working conditions;
• other categories of workers listed in Art. 116 Labor Code of the Russian Federation.

Both basic and additional leave are paid. The amount of vacation pay depends on the employee’s average earnings over the last year.

According to Art. 139 of the Labor Code of the Russian Federation, to calculate the average salary, all labor payments to an employee for the last calendar year are taken into account.

Exchange a beach holiday for money

How to receive compensation for vacation without dismissal. Such payments will be completely legal for employees who have extended and additional vacations - Article 126.

If a worker has accumulated different types of leave, then for each part of the annual leave exceeding 28 days, he can ask for monetary compensation. But if the main vacations of normal duration have accumulated, then they cannot be replaced with money. Even if the boss really wants to meet you halfway. You will receive the full amount of vacation pay only after leaving the company - 127 Art.

But even among those with excess leave, there are exceptions for whom not a single extra day can be compensated with money!

This:

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

For the last listed citizens, the minimum amount of additional rest is 7 days.
If this figure is set higher by a collective or industry agreement, then the difference can be received in money. Let's look at a few possible situations:

1. Installer Petrov used 14 days of vacation in his first working year. Can he receive compensation for the remaining days next year? No. It is illegal. The labor inspectorate will detect a violation of the law. The fine will be paid by the employer from 30 thousand, and the director of the company 1-5 thousand rubles. – 5.27 st. Code of Administrative Offences.
2. Cashier Sidorov is disabled. He is entitled to extended leave. How many days of it can be replaced with money? Every year a disabled person has the right to replace 2 days of vacation (30 minus 28).
3. Installer Fedorov works in hazardous production, has a basic vacation of 32 and an additional 3 days. How many days can he exchange for money? Five (32 minus 28). Additional leave for harmful working conditions must be taken off; it is not subject to compensation - Art. 126.
4. Seamstress Kotova wants to relax before her maternity leave. The HR department considers it impossible to provide all vacation in advance, but allows you to take days in proportion to the time worked. Is this possible? No. Kotova has the right to receive 28 days of vacation. She needs to write a statement, record it as an incoming document, and go to rest. There is no need to wait for a positive answer and vacation pay. If the seamstress does not receive them, you will have to write a complaint to the State Tax Inspectorate.
5. Former serviceman Mayorov is a combat veteran. In Law No. 76-FZ “On the Status of Military Personnel,” he found that he was entitled to 15 days of additional leave. This is true? No. Law No. 5-FZ “On Veterans” provides the right to use days at a time convenient for them. And Article 11 76-FZ is not applicable to persons discharged from military service. Judicial practice confirms this position (decision of the Tomsk court in 2010 and the Sterlitamak city court in 2011)
6. The factory intends to introduce a condition into the collective agreement limiting the periods of annual leave (spring and summer). The workers don't mind. Is this legal? No. Internal agreements of the enterprise should not limit the rights or reduce the guarantees of a person in comparison with those adopted by law - Art. 9.

If an employee has a basis for several different additional leaves, they are added up and added to the main one.

Additional allowances for workers with hazardous conditions are not summed up; one of them is selected - Resolution of the USSR State Committee for Labor 273/P-20, clause 18.
Example. Asphalt paver Vorobyov works at an altitude of 2800 m above sea level. He has two grounds for additional allowance: as an asphalt concrete worker - 6 days, and as someone working at high altitude - 12 days. Vorobyov cannot get 18 additional days, but only 12.

But steelmaker Solovyov in the Norilsk workshop will add together two additional allowances: for harmful conditions - 12, plus northern ones - 24 days. And it can bask in the sun for 64 days (28 + 12 + 24) - Law N 4520-1, Art. 14.

You can spend unused vacation days according to the schedule, or agree with your superiors. It is not necessary to follow the chronological sequence - you can first use up the current and then last year's vacation.

Is it possible to fire an employee without compensation for unused vacation?

The statement states:

• to whom it is addressed (last name, first name, patronymic of the head of the institution);
• name of the institution (in full, without abbreviations);
• name of the appeal (statement);
• outlines the essence of the appeal, in which they are asked to pay compensation for unused vacation, it is necessary to clarify for what period and for how many days;
• As in every application, the application must be dated and personally signed by the applicant.

Here it is important to emphasize that it is the manager who decides to pay compensation for vacation, or offer to take a vacation at another time. This is entirely within his competence. If the employer has no objections, he imposes a corresponding resolution on the application, and an order is issued to the enterprise to pay compensation for unused vacation days.

Liquidation of the organization and non-payment of compensation

During periods of instability in the country, situations often arise when enterprises, their funds and divisions have to close and sometimes be liquidated.

The liquidation process consists of terminating the functioning of a legal entity without appointing legal successors. Employees must be notified of this no later than two months in advance under an open-ended employment contract, and those working on a fixed-term contract at least three days in advance.

Liquidation implies dismissal at the initiative of the employer; all categories of employees are dismissed, including pregnant women, those on maternity leave, sick leave, and childcare leave.

This is where the question arises about the amount due and payment of compensation upon dismissal for unused vacation.

The procedure is the same for everyone: employees have the right to this compensation and must receive it no later than the last working day. And also for wages and unemployment benefits.

It is calculated according to a general formula: for each full month worked, two days of vacation are entitled, if the employee worked for less than two months, he is not entitled to anything.

Important! If you worked less than fifteen days in a month, then it does not count.

So, for example, having worked 6 full months, you are entitled to twelve days of vacation, your income for this period was 63,000, the average daily earnings will be 350.00 rubles. Thus, 350 * 12 = 4200 is the amount of our compensation

If the employer does not accrue compensation, the employee has every right to contact the labor inspectorate or the district court with a complaint and claim, and also file for compensation not only for compensation, but also for moral damage.

What is the penalty for late payment of vacation compensation upon dismissal?

Upon termination of the employment contract, all amounts due to the employee must be paid on the day of his dismissal, and if the employee did not work on that day - no later than the next day after he requested payment (Article 140 of the Labor Code of the Russian Federation, hereinafter referred to as the Labor Code of the Russian Federation ).

Part one of Art. 127 of the Labor Code of the Russian Federation establishes that upon dismissal, an employee is paid monetary compensation for all unused vacations.

Failure by an employer to comply with these legal requirements may entail a number of negative consequences for him.

1. Financial responsibility

Article 236 of the Labor Code of the Russian Federation provides for the employer’s financial liability for delays in payments provided for by law, including compensation for unused vacation. If the established deadline is violated, the employer is obliged to pay the specified compensation with additional interest in the amount of not less than one three hundredth of the Bank of Russia refinancing rate in force at that time 1 on the amounts not paid on time. Interest is accrued for each day of delay, starting from the next day after the due date for payment until the day of actual settlement, inclusive.

The amount of monetary compensation paid to an employee may be increased by a collective or labor agreement. The obligation to pay interest in the event of a delay in settlement with the employee arises regardless of whether the employer is at fault.

In addition, Article 237 of the Labor Code of the Russian Federation provides for compensation for moral damage caused to an employee through the fault of the employer (illegal actions or inaction). In paragraph 63 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” it is explained that the Labor Code of the Russian Federation does not contain any restrictions for compensation for moral damage in the event of a violation by the employer of the property rights of an employee . Therefore, an employee with whom payments are not made in a timely manner has the right to compensation for moral damages according to the rules of Art. 237 Labor Code of the Russian Federation. Moral damage is compensated in cash in amounts determined by agreement of the parties to the employment contract. In the event of a dispute, the fact of causing moral damage to the employee and the amount of compensation for it are determined by the court, regardless of the property damage subject to compensation.

2. Administrative responsibility

Administrative liability for violation of labor legislation (including the requirements of Articles 127 and 140 of the Labor Code of the Russian Federation) is established by Art. 5.27 of the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation).

According to part one of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, violation of labor legislation entails the imposition of an administrative fine:

- for officials - in the amount of 1000 to 5000 rubles;

- for persons carrying out entrepreneurial activities without forming a legal entity - from 1000 to 5000 rubles. or administrative suspension of activities for up to 90 days;

If the violation was committed by a person who was previously subject to administrative punishment for a similar offense, this entails disqualification for a period of 1 to 3 years.

Offenders are brought to administrative responsibility if their actions do not contain signs of a crime.

3. Criminal liability

Criminal liability for non-payment of wages, pensions, scholarships, benefits, compensation and other payments is provided for in Art. 145.1 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation).

Failure to pay more than two months of wages, pensions, stipends, compensation, allowances and other payments established by law (including compensation for unused leave upon dismissal), committed by the head of an organization or an individual employer out of selfish or other personal interest, is punishable by:

- or deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years;

- or imprisonment for up to two years (part 1 of article 145.1 of the Criminal Code of the Russian Federation).

The same act, but resulting in grave consequences, is punishable:

- or imprisonment for a term of three to seven years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

Answer prepared by: Expert of the Legal Consulting Service GARANT Tatyana Tarasova

Response quality control: Reviewer of the Legal Consulting Service GARANT Zolotykh Maxim

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service. For detailed information about the service, contact your service manager.

1 From June 1, 2010, the refinancing rate of the Bank of Russia was set at 7.75 percent per annum (directive of the Central Bank of May 31, 2010 N 2450-U).

Types of compensation for dismissed employees

What is paid upon dismissal?

1. Compensation for dismissal of an employee due to poor health.
2. Payments upon dismissal at the initiative of the employee.
3. Payments upon dismissal by agreement of the parties.
4. Payments upon dismissal of an employee due to staff reduction.

For any reason for staff leaving the enterprise, the employer must make payments for annual leave that the workers did not have time to take. When leaving work occurred on the initiative of the authorities, those dismissed are also entitled to severance pay (in addition to payment for the time actually spent at the workplace while performing official duties).

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Compensation for early termination of an employment contract

Dismissal in case of early termination of an employment contract must be preceded by notification by the employer to the employee 2 months before the date of his actual departure from work. The employer does not have the right to force an employee to write a letter of resignation of his own free will, since this is beneficial exclusively to the employer, who will not have to pay his employee severance pay.

When reducing staff, the law generally prohibits specifying the reason for dismissal as “personal desire of the employee,” since two grounds for leaving work cannot arise simultaneously. In addition, an entry in the work book upon dismissal due to staff reduction is more beneficial for the worker both in terms of finding a new job and in terms of obtaining various benefits.

This is also important to know:
Dismissal of the director of an LLC at his own request: registration

The procedure for such dismissal is as follows:

1. The employee receives a notification and agrees to it.
2. The employer instructs the accounting department to pay the employee for the amount of compensation for unprovided vacation and severance pay.
3. The employee receives a compensation payment for early termination of his employment contract.

Additionally, compensation is assigned for the period remaining until the end of the notice period. In total, the fired person will receive his due salary with all allowances, compensation for rest that was not given, severance pay and compensation salary for the time that he could still work before the dismissal, but agreed not to work.

The purpose of imposing an obligation by law on an employer to pay severance pay is to provide a means of livelihood for an employee who, through no fault or unwillingness, has lost a source of income while he is looking for a new employer.

It is worth keeping in mind that any misconduct in the workplace that would not have been taken into account before, before dismissal, can serve as a reason for manipulation on the part of the employer in order to force the employee to resign of his own free will. At such a time, you should not allow lateness or other, even minor, disciplinary violations.

Compensation for vacation that the employee did not have time to take

For whatever reason, an employee leaves work, among the obligatory payments for him will be compensation for annual leave not provided before the date of dismissal. Moreover, if he had the right to vacation twice, but did not go on vacation for two years in a row, he will receive double compensation.

However, working for 2 years in a row without rest is illegal, and therefore the employer must give an explanation about this, except in cases where the employee has done something wrong. The procedure is this because compensation for unused vacation is not paid if the employee is fired for serious violations. The day of actual departure from the enterprise will be the last day of rest, and before that the employee will already be given all the compensation due to him for unused vacations.

Employee compensation for staff reductions

The dismissal of employees when reducing the company's staff is recognized by law as independent of the wishes of management and subordinates. Extra-budgetary funds are involved in the implementation of social programs aimed at providing for citizens who have lost their jobs through no fault or initiative.

Dismissed employees receive wages with the allowances and bonuses they are entitled to for the time actually spent at work, compensation for annual rest not provided (if any), severance pay, which is certainly paid in two cases:

• upon closure of the enterprise,
• when staffing is reduced.

The average salary is retained by a dismissed employee only until (but not more than 3 months, and only after such a decision is made by the Employment Service) he signs a contract with a new employer. And if we are talking about a part-time worker who still has a second job, then he is not entitled to severance pay at all.

If there is no part-time job, the dismissed employee contacts the Employment Service within 14 days and leaves an application to find a new job. And in the event that the Employment Center does not find a suitable position at another enterprise, it will receive from the former employer the amount of its average earnings for 3 months instead of the standard two.

Compensation for police officers upon dismissal

Police officers are entitled to full compensation for each vacation not used on time until January 1 of the year in which the dismissal took place (the reason does not matter). Compensation amounts for rest that the police officer did not take during the year of dismissal will be paid:

• upon length of service at which the right to pension payments arises, upon reaching the age limit, upon dismissal due to staff reduction or deterioration of health (for annual leave in full, and for other types of rest - in proportion to the length of service in the year of departure from service in the amount of 1/12 of the vacation for 1 full month of work);
• for all other reasons (for each entitled type of rest in the amount of 1/12 of the duration of leave for 1 full month of service based on the average salary).

This is also important to know:
What is the retention period for the personal files of dismissed employees?

When a police officer leaves service, he is entitled to:

1. Salary for the entire period of service.
2. Quarterly bonus calculated based on actual time served.
3. Compensation equal in value to at least two salaries for the year (if it was not paid in the relevant year).
4. A one-time financial incentive based on the results of 12 months is proportional to the time actually spent in service.
5. Compensation for vacation not provided before dismissal.
6. One-time benefit in the amount of:

• 5 average monthly salaries (dismissal due to age, health reasons, staff reduction, illness, after 10 years of service),
• 10 average monthly salaries (with 10-14 years of service),
• 15 average monthly salaries (with 15-20 years of service),
• 20 average monthly wages (with more than 20 years of service),
• 40% of the transferred amounts (if dismissed for other reasons),
• the transferred amounts + 2 salaries (if the policeman was awarded an order during his service or was awarded an honorary title).

The salary is the one that was assigned at the time of dismissal. Years of service are not rounded to full years. If dismissal occurs upon re-employment, payments are calculated with the offset of previously paid amounts for length of service. If the total length of service was less than 15 years, and the policeman was dismissed without the right to a pension, his salary is retained for 12 months after leaving service (annual indexation is taken into account).

When retiring

When retiring, an employee can receive not only compensation for vacations and wages.

He may also be entitled to additional payments. But only if the collective agreement specifies special conditions under which accruals are made to employees leaving due to retirement age. Sick leave after dismissal in 2021, according to the Labor Code, must be paid by the employer within a month.

Sick leave pay after dismissal

A former employee has the right to claim sick leave payment through the company from which he was dismissed, provided that no more than a month has passed from the date of registration of the event. Only those citizens who have not been employed since the termination of their employment contract should contact the head of a business entity. The certificate of incapacity for work must be presented no later than 6 months from the date of termination of the employment relationship. When calculating the amount of payment, length of service is not taken into account, and when determining its size, the salary is adjusted to 60 percent. If the sick leave was issued to a close relative, then it is not payable.

Dismissal during illness

In case of serious illness, the employee may be on sick leave for a long time. During this period, he has the right to resign for his own reasons or by agreement of the parties, due to the initiative of the employer due to the need to perform duties by a constantly absent person and assign them to a new employee.

The procedure for dismissing a person on sick leave is no different from terminating a contract with a working employee. He must notify the employer of his desire, and after two weeks receive a payment. For a dismissed employee with an open sick leave certificate, the payment amount can be calculated only after receiving a closed sick leave certificate issued by a medical institution. Payments are made on the nearest payday.

Compensation for unused additional leave without dismissal

Cash compensation for unused vacation without dismissal - payment that is due for days in excess of the minimum 28. This may be part of an additional vacation or a “non-vacation” main one, but only if it is more than the standard 28 days.

“Extra” days accumulate as a result of unused vacation days for the previous year (for example, a citizen took only 10 days), as well as if a person is entitled to extended / additional paid vacation for:

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• irregular workday;
• work in extreme conditions.

Then, having rested the legal 28 hours, the employee can continue to bask on the beach or at his favorite cottage, and can receive the cash equivalent of unused personal time.

The nuances of providing this monetary compensation are set out in Articles 114 – 116, 126 – 127, 139 of the Labor Code. Let's consider how to legally receive compensation and in what amount, who is entitled to it and who is not.

When should vacation pay be paid?

According to Article 140 of the Labor Code of the Russian Federation, payment of all amounts due to the employee is made on the day the employee is dismissed.

If the employee was absent from work on the day of dismissal, for example, was on a business trip, or was sick, payments must be made no later than the day following the day the employee’s request for payment was submitted. It turns out that if on the day of dismissal you were absent from work and the employer did not have the opportunity to give you a final payment, then if, for example, you came on September 22 and demanded a payment, it should be given to you no later than September 23, that is, the day following the day presenting a claim.

And if you were at work on the day of dismissal, you should be given a paycheck on the same day.

If an employee disputes the amount due to him upon dismissal, does not agree with its amount and a dispute arose for this reason, then the employer pays the amount not disputed by him, that is, the employer will pay the amount that he considers correct. And if the employee does not agree with the amount paid to him, then he has the right to go to court. How to do this is written in the next part of the article!

How to defend your rights, how to sue your employer and within what time frame?

To begin with, I would like to tell you what responsibility does an employer have if an employee’s rights to receive a payment are violated?

If, upon dismissal, the employer violates the established deadlines for the payment of wages, compensation for unused vacation and other payments due to the employee, then the employer pays such amounts with interest (monetary compensation). Interest will be paid for each day of delay, starting from the day when, by law, such payments should have been made to the employee. The amount of interest payable must be at least 1/150 of the key rate of the Central Bank of the Russian Federation in force at that time, of the amounts unpaid on time for each day of delay. Let's take a closer look!

Let's take the numbers as an example and calculate for clarity:

The key rate of the Central Bank of the Russian Federation is 10%

One hundred and fiftieth of the key rate of the Central Bank of the Russian Federation – 10/100/150 = 0.00066

We received 653 rubles for 28 days of delay. 30 kopecks

The amount is not large, but if it is collected in court, it will take longer and longer and the amount of interest may be 2 or 3 times higher.

Moreover, the obligation to pay such interest arises on the employer, regardless of whether he is to blame for the delay or not.

Indeed, on the basis of paragraph 55 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2, the court was considering a dispute arising on the basis of the employer’s refusal to pay interest to the employee for violation of the deadline for payment of wages, vacation pay, dismissal payments and other payments that are due by law employee, then it is necessary to take into account that, on the basis of Article 236 of the Labor Code of the Russian Federation, the court has every right to satisfy the claim, regardless of whether the employer is at fault for the delay in payments or not.

This must be taken into account when filing a lawsuit against an employer. Go ahead!

The Labor Code does not contain provisions on mandatory pre-trial settlement of disputes, so we do not send any claims to the employer, but immediately go to court.

You need to draw up a statement of claim against the employer and refer to the fact that the employer violated Part 1 of Article 127 of the Labor Code of the Russian Federation and Part 1 of Article 140 of the Labor Code of the Russian Federation.

How long do you have to sue your employer?

You have exactly 1 year to sue your employer. According to Part 2 of Article 392 of the Labor Code of the Russian Federation, to resolve an individual labor dispute about non-payment or incomplete payment of wages and other payments due upon dismissal (including vacation pay), an employee has the right to go to court within 1 year from the moment when the employer should have legally required to make these payments.

This is important to know: Payment of vacation pay: purpose of payment in the payment order

So you have exactly 1 year to go to court and recover money from your employer.

There is nothing complicated in drawing up a statement of claim, there are a lot of examples, you can find them yourself. And if it’s really difficult or you don’t have time, then contact a lawyer in your city, they will definitely help you.

Conclusions from the article!

As you can see, you may not always be illegally denied payment of compensation; sometimes the employee himself may get confused and think that he only took vacation that year and decide that the employer violated his rights. But employers themselves often sin and try to mislead employees, so it is necessary to request a vacation schedule from the employer.

Next, understand the situation thoroughly and if rights are violated, then within 1 year apply to the court to protect your rights.

Applicants for additional rest

Since the right to receive money for untaken leave arises only in 2 cases - upon dismissal and without it for all days beyond 28 - it is necessary to clarify which categories are entitled to additional paid leave. This:

• workers in territories falling under the concept of the Far North;
• workers working irregular hours;
• Chernobyl victims;
• people involved in enterprises that are harmful to health and hazardous industries.

A complete list of everyone who is entitled to “extra” days of rest is contained in Art. No. 116 of the mentioned code.

In addition, additional vacation pay can be given at the initiative of the organization.

Extended leave is due:

• minors;
• working disabled people;
• teachers, lecturers.

But even if you are among those who are entitled to a longer vacation, not everyone will be able to replace it with money.

Compensation for accumulated vacation without dismissal: who is not entitled to it?

There is an absolute taboo against replacing paid vacation days with money. It concerns certain categories of citizens.

The following do not receive compensation for vacation:

• employees under 18 years of age;
• pregnant women;
• those involved in “harmful” and heavy industries;
• customs officers and employees in the Ministry of Internal Affairs.

Important!

Pregnant women can take their additional leave whenever they want (before maternity leave, after it).

Payment of compensation to these categories of employees for unused vacation without dismissal is punishable by a fine.

Payment terms

The Labor Code provides that all payments to an employee resigning at his own request must be made on the last day of his work.

The sanctions for violating this norm are as follows: 1/300 of the Central Bank refinancing rate for each day of delay. Currently the rate is 10%.

If, in the above example, the employee was not paid vacation compensation on time, then for each day of delay the employer would pay the following fine: 10% / 300 * 32764.56 = 10.92 rubles.

Summarizing the above, we can come to the following conclusion: the basic dismissal payments required by law must be known to every employee. Knowledge of the formulas for their calculation and the ability to operate with them in front of the management and accounting service of the organization will make it possible to defend your rights in any situation.

Money for unpaid vacation without payment: fine

Cash reimbursements for vacations of less than 28 days are prohibited unless the person leaves work.

Employers sometimes neglect this rule, which entails administrative punishment in the form of a fine if inspectors reveal a violation of the Labor Code.

Example. The employee has accumulated exactly 28 days of vacation pay; there are no preferences or additional vacations. Last year he used 21 days. This means that the remaining 7 days can be added to the allotted ones this year (28+7). Or receive money for them upon settlement. Without dismissal, no payments are due for these remaining days and are punishable by a fine to the manager.

What part of the vacation (main and additional) can be compensated?

The possibility of making a compensation payment is legally linked only to that part of the rest time that is not mandatory for use. Mandatory use of the Labor Code of the Russian Federation requires:

• 28 days according to the calendar in relation to the main regular vacation (Article 115);
• 7 days according to the calendar in relation to additional leave due to work in harmful/dangerous working conditions (Article 117).

In both cases, the specified length of compulsory leave determines the number of days of rest, less than which the employer does not have the right to provide the employee for a fully worked calendar year. And this period of time (with the breakdown into parts allowed by Article 125 of the Labor Code of the Russian Federation) the employee must use in full annually (Article 122 of the Labor Code of the Russian Federation). And only in relation to the number of days exceeding these mandatory periods of rest can compensation be paid for unused vacation without dismissal (Articles 117, 126 of the Labor Code of the Russian Federation).

An increase in the duration of the provided leave is provided through:

• statutory longer duration of main leave:

• workers under 18 years of age (Article 267 of the Labor Code of the Russian Federation);
• teachers (Article 344 of the Labor Code of the Russian Federation, subparagraph 3, paragraph 5, Article 47 of the Law “On Education” dated December 29, 2012 No. 273-FZ);
• judges (clause 2 of article 19 of the law “On the status of judges” dated June 26, 1992 No. 3132-1;
• employees of the Investigative Committee (clauses 1, 2 of Article 25 of the Law “On the Investigative Committee” dated December 28, 2010 No. 403-FZ);
• municipal employees (clause 3 of article 21 of the law “On municipal service dated March 2, 2007 No. 25-FZ);
• prosecutors (clause 1 of article 41.4 of the law “On the Prosecutor’s Office” dated January 17, 1992 No. 2202-1);
• civil government employees (clause 3 of Article 46 of the Law “On State Civil ..." dated July 27, 2004 No. 79-FZ);
• employees of the Federal Fire Service (Clause 1, Article 58 of the Law “On Service in the Federal...” dated May 23, 2016 No. 141-FZ);
• employees of internal affairs bodies (Clause 1, Article 57 of the Law “On Service in Bodies...” dated November 30, 2011 No. 342-FZ);
• disabled people (Article 22 of the Law “On Social Protection...” dated November 24, 1995 No. 181-FZ);
• employees employed in the penal system (Clause 1, Article 59 of the Law “On Service in the Penitentiary...” dated July 19, 2018 No. 197-FZ);
• persons working with chemical weapons (Article 5 of the Law “On Social Protection...” dated November 7, 2000 No. 136-FZ);
• professional rescuers (clause 5 of article 28 of the law “On emergency rescue workers...” dated August 22, 1995 No. 151-FZ);

• legislative introduction of additional leaves for employees:

• with an irregular work schedule (Article 119 of the Labor Code of the Russian Federation);
• performing labor functions abroad (Article 339 of the Labor Code of the Russian Federation, Decree of the Government of the Russian Federation dated April 21, 2010 No. 258);
• who are coaches or athletes (Article 348.10 of the Labor Code of the Russian Federation);
• medical sphere (Article 350 of the Labor Code of the Russian Federation, Decrees of the Government of the Russian Federation dated 06/06/2013 No. 482, dated 12/30/1998 No. 1588, dated 04/03/1996 No. 391, Council of Ministers of the RSFSR dated 01/17/1991 No. 27);
• customs (subparagraph 1, paragraph 1, article 35 of the law of July 21, 1997 No. 114-FZ);
• workers in areas with special climatic conditions (Article 116 of the Labor Code of the Russian Federation, Article 14 of the Law “On State Guarantees...” dated February 19, 1993 No. 4520-1);
• among those whose work also requires an increase in the duration of the main leave are prosecutors, municipal employees, civil servants, rescuers, employees of the Investigative Committee, the Federal Fire Service, internal affairs bodies, and the criminal correctional system;

• increasing the duration of basic and additional vacations by enshrining such a decision in an internal regulatory act.

In all of the above situations (if they do not concern workers under 18 years of age, pregnant women, customs officers), part of the leave exceeding 28 and 7 days according to the calendar for the main and additional leave, respectively, can be replaced by a cash payment. For employees of the federal fire service and internal affairs bodies, instead of the number 28, the value is 30 days (clause 7, article 57 of the law dated May 23, 2016 No. 141-FZ and clause 7 of article 56 of the law dated November 30, 2011 No. 342-FZ). For rescuers, it is possible to pay without dismissal only compensation for unused additional leave (Clause 6, Article 28 of Law No. 151-FZ of August 22, 1995).

Payments for untaken vacation without leaving a position: main points

Legislative documents regulating the relationship between an employee and an employer include, first of all, the Russian Labor Code. Basic information on compensation for accumulated vacation days can be found in his articles.

• When and how much vacation is required?
• Art. No. 114 and 115 state that after six months of work, each employee can exercise his right to paid rest. He can be given either 14 days or a whole vacation in advance. In this case, the amount of vacation pay will not be calculated “in advance”, but according to the time worked.

Important point!

Having “taken off” the entire vacation “in advance” (before 11 months have passed from the date of hiring), the employee can continue to work in this organization, or he can quit. In the latter case, the amount of vacation pay for each day in excess of the required 14 will be withheld from him.

After a year, the duration of the main vacation will be at least 28 days (plus an additional day for some categories).

• Calculation of vacation pay and nuances of compensation for untaken vacation days without leaving work
• Art. No. 139 regulates the rules for calculating vacation pay (the average salary for the year plus all annual payments is taken into account).

Note!

When calculating compensation, the average salary, personal income tax and income tax are also taken into account.

It is not difficult to calculate this amount.

First, you need to add up the total number of payments for the last 12 months (or for the time worked, if it is less than 12 months).

We remind you! You can have your situation assessed by a lawyer - it's free! Call!

Secondly, divide the resulting amount by 12 (or by the number of full months of work).

Then the result of the division (average monthly salary) is divided by the accepted average number of days in a month (29, 3). It turns out the average salary for 1 workday.

The resulting number (average salary per day) is multiplied by the number of unused days of additional leave and the amount of compensation is obtained.

For example, you have 8 days of vacation left. The average salary for the year is 400 thousand rubles. Average daily salary = (400,000/12)/29.3=1137.6 rub. in a day. We multiply this number by 8: 1137.6 * 8 = 9100.8 rubles.

If the employee does not leave work, compensation is calculated and paid on the same day as salary.

• Art. No. 126 establishes the right to compensation. It states that if a person is not fired, receiving compensation payment is possible only for a period in excess of 28 days of vacation. Otherwise, the employer will face a fine.

Important!

The payment cannot be claimed by non-retiring employees. This is an act of goodwill, not the responsibility of the boss.

• Compensation upon dismissal
• TK, Art. No. 127 provides for compensation for employees leaving the enterprise if they have legal vacation days left.

The reasons for the calculation do not matter - after the appropriate order, the employee receives all the money due to him, labor and a certificate of average salary.

• unpaid wages;
• premium;
• money for untaken vacation;
• severance pay (optional).

If on the day of dismissal the employee does not receive compensation for all days of unused rest, the employer will face unpleasant consequences.

• Interest will accrue for each day of delay in payment at the rate of 1/300 of the refinancing rate.
• Payment of moral damages to an employee is possible (see: Art. No. 237 of the Russian Labor Code). Appointed by the court or established by mutual agreement.
• Fine (Article No. 237 of the Labor Code, Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Dismissal of an employee who has worked for 2 weeks, 1 month, 5 months, 6 months, 11 months

There are situations when an employee has to be fired at his own request or on the initiative of the employer, when he has worked very little, or has worked for less than a full month, or has not stayed at the enterprise until the end of the working year.
In such cases, the employer must competently carry out the dismissal procedure, otherwise the employee’s rights will not be respected. Most often, the dismissal of an employee who has worked only 2 weeks occurs:

• on their own initiative,
• based on the results of the probationary period (option for those dismissed after 2 weeks and 1 month of work).

This is also important to know:
Termination of an employment contract at the initiative of the employee

If it was decided to formalize the dismissal of an employee as having failed the test, you need to remember that for this a probationary period had to be assigned, and it could last no more than a month. Labor legislation does not establish an employer’s obligation to prescribe tests, and therefore, if the company’s policy does not provide for any testing of a candidate’s abilities for a job, then it will be possible to fire him only for absenteeism and violations, or at will.

If a decision is made to formalize the dismissal as a resignation of one’s own free will, the employee is obliged to notify about this 2 weeks in advance, which will subsequently have to be worked out if the employer requires it (if desired, the parties can agree on dismissal on any day without working out the required period). It happens that work is not possible due to the employee moving to another region, pregnancy, etc.

Payments upon dismissal at one's own request:

• issue wages for the time actually spent at work;
• make calculations and accrue compensation for vacation that could have been used, but which never came to pass (on average, for a month of work, the right to 2 days of rest arises, therefore, for 2 weeks of work and for 1 month of work, 1-2 days should be compensated non-vacation).

Dismissal after 5, 6 and 11 months of work can be motivated as follows:

1. The employee himself wished to leave the workplace.
2. The duration of the urgent contact has expired.
3. An employee is transferred to a new position in another company.
4. Staff reduction.
5. Liquidation of the enterprise.
6. Allowing employees to regularly violate labor discipline.

Even when an employee has not worked for a full six months or a year, he will be entitled to compensation for unused rest days. And if there has been a reduction in staff, or the employee’s departure from work was initiated by the employer for another reason, the employee is entitled to other types of compensation for early termination of employment.

Salary for less than a month of performance of official duties is calculated:

1. By the nominal number of days in a month (the average number of days in a month is determined by regulatory documents, in 2021 it is 29.4 days):

Salary = full salary: 29.4 x ChOD, where

• Salary - salary calculated based on the nominal number of days,
• FZP - actually assigned salary,
• CHOD - number of days worked.

1. Based on the actual number of days in a month:

ZP = FZP: KDM x CHOD, where

• Salary - salary calculated based on the actual number of days in the month,
• FZP - actual salary of the employee,
• KDM - number of days in a month,
• CHOD - number of days worked.

Additionally, holidays, weekends, days of absence are taken into account with the same salary.

How to get money instead of vacation?

The “vacation” schedule does not always coincide with the wishes and capabilities of workers. Therefore, people either use only part of, for example, 10 days, or completely postpone the planned vacation. The question arises: how to obtain compensation for this unused period of time without quitting?

Money for unused additional leave without dismissal

Who cannot replace a missed vacation with a cash payment?

The following cannot exercise the right to compensation for unpaid vacation without dismissal (Articles 117, 126 of the Labor Code of the Russian Federation):

• pregnant women;
• workers under 18 years of age;
• persons entitled to additional leave granted for work in harmful/dangerous conditions, within the limits of that part of this additional leave that is required by law to be used.

Also, compensation for leave without dismissal is not provided to customs employees (Clause 2, Article 35 of the Law “On Service in Customs...” dated July 21, 1997 No. 114-FZ).

In addition, those that cannot be replaced by cash payments include additional leaves, which are one of the measures of social support for persons exposed to radiation during the Chernobyl accident (Articles 14, 18, 19, 20 of the Law “On Social Protection...” dated May 15. 1991 No. 1244-1). Payment for such leave is not made from the employer’s funds, but is financed by the federal budget, therefore the Labor Code of the Russian Federation does not regulate the issues of its provision (letter of the Ministry of Labor of the Russian Federation dated March 26, 2014 No. 13-7/B-234).

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Registration procedure

The first step is submitting an application. It is written in any form (or according to a template accepted at the enterprise) addressed to the manager.

Please provide your details in your application:

• FULL NAME.,
• job title,
• organization (in full, without abbreviations),
• number of days for which you want to receive compensation payments.

Don't forget to autograph and date it below.

Important!

As stated above, it depends only on the manager whether they will pay you compensation or offer you, after all, to finally rest.

The next step is to register the application in the accounting book, after which the employer will transfer it to the accounting department to calculate the amount paid. Then the manager will issue the order. You will need to read it carefully, check the indicated amount with your own calculations, and only then sign.

Thus, the further course of action will depend on the will of the leader. He can even meet the employee halfway and pay him for all the untaken days of the main 28-day vacation without dismissal, which is a violation of the law.

Monitoring the timely use of basic leave by employees is the task of the HR department.

Legal compensation for vacation: conditions for receiving without dismissal and upon dismissal

Compensation is due to the employee under the following conditions:

• he has not used his vacation right during all his working years;
• the employee was unable to rest over the past year for one or another important reason;
• he leaves on his own initiative, and the vacation remains unused in whole or in part;
• the term of the contract has expired, but the right to leave has not been exercised;
• seasonal work under the contract has ended;
• staff reduction, liquidation of an enterprise;
• the employee worked part-time;
• dismissal at the initiative of the manager for violations.

Important!

If, when calculating compensation for additional / extended leave for the billing period, the salary has increased, the calculated amount will be indexed by the increase factor.

List of legislative sources on the topic

1. TK, articles:

• No. 122, part 1 and art. No. 124 part 4;
• № 139;
• №237.

Dismissal due to circumstances beyond the control of the parties

According to Art. 83 of the Labor Code of the Russian Federation there are grounds for termination of an employment agreement:

• conscription for military service;
• a court decision or State Labor Inspectorate on the reinstatement of an employee who previously performed this work;
• failure to be elected to office;
• imprisonment, which will not allow you to continue working;
• the person is declared incompetent;
• death or recognition as missing of a worker or employer;

Important

In connection with the death of a worker, the payments due to him, according to Art. 141 of the Labor Code of the Russian Federation, will be received by his family or a person dependent on the deceased on the day of his death.

• emergency situations (for example, martial law);
• disqualification or other administrative punishment that prevents the employee from performing his job duties;
• deprivation of the right to work in a specific position or conduct a specific activity for a period of more than 2 months;
• loss of access to state secrets.

Upon dismissal under this article of the Labor Code of the Russian Federation, the organization must make payments:

• Salary;
• compensation for missed vacation days (if any).

Additionally, some groups of workers are entitled to severance pay in the amount of two weeks' earnings. These groups include:

• those leaving for military or alternative conscription service;
• citizens who are recognized as disabled;
• workers whose contract was terminated due to the reinstatement of a previously dismissed employee.

Popular questions

Question:

The employee has not taken vacation for 2 years. He is not entitled to an additional or extended one. Due to his difficult financial situation, he asks to replace the number of days he did not take off with a monetary compensation, but does not want to pay. Can the personnel officer calculate the appropriate amount for him?

Answer:

Such payment is due only upon dismissal. In other cases, it is punishable by a fine.

A fine is also provided for a person’s lack of legal rest for 2 consecutive working years.

Let's summarize. In 2018, no cash equivalent will be paid for untaken basic leave without leaving the duty station.

The legal opportunity to receive compensation arises only if there are days of additional / extended leave available, if the employee spent a minimum of 4 weeks on vacation. Excluding categories of citizens who cannot receive cash for their remaining vacation days (pregnant women, minors, etc.). But paying this money or offering the employee time to rest is entirely within the competence of the manager.