Procedure for calculating compensation
The key rules are:
- Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 “On the specifics of the procedure for calculating average wages.”
- Federal Law of July 24, 1998 No. 125-FZ “On compulsory social insurance against accidents at work and occupational diseases.”
Let's look at how compensation is calculated for unused leave for a maternity leave upon dismissal, as of the current moment:
- Determine the average daily earnings for the 12 months before the date of dismissal. It is necessary to take the period before going on maternity leave, since in fact the person did not work (clauses 5 - 6 of Appendix RF PP No. 922). To do this, you need to divide the total income for the period by the number of months. The result obtained is the average monthly income. We need to find out the daily average. To do this, the result obtained is divided by 29.3 (the average number of days in a month established by law).
- Determine the number of unused rest days on the date of dismissal. See below for more details.
- Multiply both numbers. This is the amount of payment due to a resigning woman.
The formula looks like this:
The main difficulty lies not in the calculation itself, but in the accuracy of determining the average daily earnings. Very often situations arise when an employee does not work for the entire month. In such a situation, it is necessary to determine the number of calendar days in fully worked months and add to them the number of calendar days in incompletely worked months. The latter also needs to be determined separately. Calculation formula:
IMPORTANT!
If a person has worked less than a full month, but more than half, then this period, when determining the number of vacation days, is taken into account as a full month (rounded up).
Seasonal workers who work on the basis of a fixed-term contract (usually concluded for a period of up to two months) also have their own characteristics. In accordance with Art. 291 of the Labor Code of the Russian Federation in such a situation, the number of vacation days is calculated as 2 days for 1 month worked. Another important nuance for calculating the number of days of unused vacation: this is greatly influenced by the days when a person was absent from the workplace without a good reason. An exception is made only for leave without pay. The reason here is valid, but the period of such leave is taken into account as length of service only if it does not exceed 14 days per year (Article 121 of the Labor Code of the Russian Federation).
It is noteworthy that in accordance with clause 12 of Appendix RF PP No. 922, even if a person worked part-time, compensation is calculated according to the scheme presented above, and not on the basis of average hourly earnings, as one might assume.
Can they be fired if the employee was busy caring for a child?
If, during an employee’s maternity leave, a metamorphosis occurred in the organization—liquidation or staff reduction—the law is still on the mother’s side (we talked about the specifics of dismissing a maternity leave due to the liquidation of an enterprise here, and from this article you will learn about how you can whether to reduce a woman with a child under 3 years old.
Responsibility for the situation when a woman has nowhere to go to work after maternity leave lies entirely with the employer. This is a violation of labor legislation, and Article 5.27 of the Code of Administrative Offenses of the Russian Federation provides for liability (fine or suspension of activities).
The only acceptable case of dismissal on maternity leave is the termination of the activities of an individual entrepreneur or the liquidation of an organization (enterprise). The employer is obliged to notify the employee of dismissal no later than 2 months in advance and obtain her written consent. The work book says: “dismissed due to the liquidation of the organization.”
Read about whether an employee on maternity leave can be fired here, and from this material you will learn about when it is legal to lay off a woman with children under 3 years of age and when it is not.
What amount is due in this case?
The calculation for dismissal by a person on maternity leave is equal to the amount of the average monthly salary. In addition, the employer is obliged to pay the average monthly salary for the period while the woman is looking for a new job (no more than 2 months).
If the average monthly pay of a maternity leaver was 25,000 rubles, then upon dismissal from maternity leave due to layoffs (clause 2 of Article 81 of the Labor Code of the Russian Federation) or liquidation of the organization (clause 1 of Article 81 of the Labor Code of the Russian Federation), she will receive 25,000 rubles of severance pay + compensation for two months (25000*3=75000 rubles).
What periods can be compensated?
It will be possible to decide how to calculate compensation for dismissal after maternity leave only after it becomes clear for how long it is necessary to compensate for unused leave. The decree is actually divided into:
- Maternity leave. In accordance with Art. 255 of the Labor Code of the Russian Federation, it is 70 days before birth and 70 days after birth. In some cases (complications, multiple pregnancies): 84 days before and 110 days after birth.
- Leave to care for a child until he reaches the age of three (Article 256 of the Labor Code of the Russian Federation).
The peculiarity is that in accordance with Art. 121 of the Labor Code of the Russian Federation, child care is not taken into account when calculating length of service, which gives the right to paid rest, compensation for which is paid upon dismissal. An exception is for those who worked part-time on maternity leave.
The nuances of dismissing an employee
...with a three-year-old child
Most often, the mother herself takes care of the baby up to three years of age (in some cases, these responsibilities can be performed by the father, guardian or other relative). In this case, a notice indicating the last vacation day as the date of dismissal is included in the application requesting the appropriate leave.
Procedure:
- The application is submitted within the time limits specified by law (two weeks or three days, depending on the type of employment contract).
- Based on this document, management issues a decree, which is presented to the employee against signature.
- After which payments are calculated, and notes are made in the personal file, as well as in the work book. Both documents indicate the registration number of the order, the basis for the calculation and references are made to the corresponding article of the Labor Code.
- All accrued money is paid on the last working day. At the same time, a work book is issued against signature along with any certificates that the employee may request (for example, about the amount of wages or insurance contributions).
...with a child under fourteen years old
- Raising children under fourteen years of age is also a legal basis for leaving a job. An employee only needs to submit a notice to the management of the organization or enterprise citing a valid reason (the need for care) in order to receive a payment.
- Usually the document is submitted within two weeks, and if the two parties agree, you can leave without “working off” - here everything depends on the conditions of leaving, recorded in the document and agreed with the employer.
- The correct formulation of the reason for the calculation in the notification, and then the order and work book, will serve as the basis for receiving benefits as an unemployed person (subject to registration at the local employment center).
It should be noted that violation of the deadlines for sending the notice may cause the employer to extend work activity for a period of two weeks (if the notice is submitted on a general basis).
An order is issued by the management of an organization or enterprise on the basis of an agreement document or on the basis of a notification received from an employee.
Payments are calculated and all necessary documents are processed as standard.
…with a child with a disability
When leaving due to the need to raise a child or children with disabilities, the employee must indicate this reason in the notification application.
Additionally, a certificate from a medical institution is attached (it will not be required if the necessary information is already available in the HR department). The notice may indicate the period of care (for example, up to eighteen years), but it may also omit this information.
Calculation of payments and documentation of calculations occurs in the general manner.
Find out in our detailed article whether it is possible to apply for sick leave retroactively. Our material is devoted to the topic of proper dismissal of an employee at his own request. Complete information on this topic will allow you to do everything correctly.
Find out here about violations of registration and compliance with sick leave. This is a serious topic that should not be neglected.
Calculation example
Now let’s look at how to calculate compensation for unused leave for a maternity leave using an example, taking into account everything said above and RF PP No. 922. Let us assume that unused vacation, taking into account absence from work due to pregnancy and childbirth, but not taking into account three years of child care, is 20 days.
In the case of calculating the payment amount, it is necessary to take the average monthly number of days per year. In accordance with clause 10 of Appendix RF PP No. 922, this figure is 29.3 days. 12 months before going on maternity leave, the woman received 360,000 rubles. This means that the average monthly income will be 360,000/12=30,000 rubles. Due to the fact that it is necessary to obtain the average daily figure, we divide the average monthly payment by the average number of days: 30,000/29.3 = 1,023.89 rubles.
Thus, compensation for leave after maternity leave upon dismissal should be 1,023.89 x 20 = 20,477.80 rubles.
IMPORTANT!
The example presented above is relevant if the rest is provided in calendar days.
How to leave correctly?
To provide notice to the employer, the general rules applicable to any employee apply.
The document is transferred to the management of the enterprise or organization in
fourteen day period. During this period, the employer will be able to complete all the necessary documents and find a new employee for the vacant job.
For seasonal or temporary workers who have entered into fixed-term contracts, dismissal is formalized within three days. Representatives of the management team, athletes or coaches, will be able to leave one month after sending the notice.
The legislation also provides three ways or reasons to receive payment immediately. This:
- recorded violations by management that grossly violate the rights of employees (for example, changes may be made to the contract or money earned may not be paid on time);
- signing a document by agreement of both parties is one of the best ways to reach an amicable agreement with management;
- leaving at the initiative of the employee, subject to providing evidence of a valid reason for leaving and the inability to continue working.
The reason for termination of work, along with relocation or illness, may also include the need to care for children.
It should be noted that when leaving by agreement of the two parties, as well as in case of violations by management, or there are reasons that do not allow work, the woman is not required to work for two weeks (or three days for persons who have signed a fixed-term contract).
This “working off” is a period of waiting for the final payment. In the exceptional cases mentioned above, all documents are processed and payments are made in a short time, that is, on an urgent basis. And there can be no talk of “working off”.
The basis for issuing the order is the notification application submitted by the employee. Or an agreement document voluntarily signed by both interested parties. In this case, a note is made in the work book about the payment at one’s own request due to the need for care. The legislative norm of labor legislation is also mandatory - Article 77, part three.
For this preferential category, no additional guarantees in the form of maintaining continuous work experience are applied. Corresponding changes were made to the Labor Code in January 2007.
Payment terms
In accordance with Art. 140 of the Labor Code of the Russian Federation, compensation for unused vacation before maternity leave must be paid on the day of dismissal or, if the employee did not work (the latter is relevant within the framework of this article), the next day after submitting a request for payment.
Read more: how to write a resignation letter.
