Is the right to leave retained upon dismissal by transfer?

Leave upon transfer to another organization

We see a different picture when an employee moves to another employer.
For the employee, such dismissal has a number of advantages. One of the most important advantages of such a transition to another company is the guarantee of employment. This condition is usually fixed in writing in the form of a letter from the new employer addressed to the current one. Previously, when the concept of “continuous service” was used, dismissal by transfer guaranteed its continuity. Nowadays, this can no longer be called an advantage, because “continuous service” in the calculation of sick leave has been replaced by “insurance service,” and it is calculated in total. And it has nothing to do with continuity.

What happens to unpaid vacation when transferred to another company?

A transfer to another employer implies dismissal from the current company (Part 2 of Article 72.1 of the Labor Code of the Russian Federation). In this case, the employment relationship is completely terminated. The employee is issued a work book with the corresponding entry. Dismissal orders and other personnel documents are signed. And in accordance with Art. 127 of the Labor Code of the Russian Federation, compensation is paid for unused vacation upon dismissal by transfer. In this case, there is no way to transfer the vacation to a new employer.

And even if you think logically, why should a new company fulfill the obligations of the previous employer and pay for the rest days of a new employee. This will be a direct cost for her.

Therefore, upon dismissal by transfer, the employee is fully compensated for the days of vacation not taken, both main and additional. Days of compensation are calculated according to the general rule: 2.33 k.d. for one month worked. In monetary terms, it looks like this: the number of days of compensation is multiplied by the average daily earnings calculated for the calendar year.

Also, the person resigning has the opportunity to take leave with subsequent dismissal, both for the entire number of days not taken off, and for part of them. And the rest will also be taken as monetary compensation. However, this requires the consent of the current employer. With this method, the day of dismissal will be considered the last day of vacation.

In the new organization, such an employee will have the right to another vacation only after 6 months of work. The same as for other categories of personnel (Article 122 of the Labor Code of the Russian Federation). The provision of rest in the first year of work for such employees will be effectively stated in the employment contract. Since it will no longer be possible to include it in the vacation schedule.

In practice, sometimes there are cases when employers agree and transfer vacations from one to another. However, in doing so they violate labor laws. After all, the Labor Code does not provide for such a possibility. And the original employer may well be held liable for violation of the law in accordance with Art. 5.27 Code of Administrative Offenses of the Russian Federation. And even a written statement from the employee requesting to postpone vacation days will not help in this situation.

Also read about when the court will not allow dismissal for absenteeism, how to detain an employee who wants to quit and how to return the money you spent on an apartment.

Transfer during maternity leave

Maternity leave is considered to be sick leave for pregnancy and childbirth and parental leave.

Maternity leave is not an obstacle when transferring an employee. To do this, it is enough to have a corresponding statement from her. In this case, maternity leave can be continued with the new employer.

Annual vacations are not transferred to the new employer. Upon dismissal, appropriate compensation is paid.

A transfer within the company will not require payment of compensation for vacation. And the translation will take place according to the standard scheme.

Vacation pay calculation

The company from which the employee is resigning must necessarily pay him compensation for vacation that was not used during the entire period of employment. In the case where a person has not been there for several years, the amount of payments is accordingly made for all this time. If a citizen terminates his employment relationship with an organization on his own initiative, and the period of work is not completely completed, then in this case deductions are made from his salary for the vacation used. In this case, the accounting department will have to calculate the exact number of days or months of work of the person.

The amount of vacation pay upon dismissal is calculated as follows:

The number of days of annual paid leave is taken, for example 28. Then it is divided by the number of months in the year, i.e. 12. Then the resulting number (2.33) is multiplied by the number of months worked in the working period, for example 4.
If you multiply 2.33 by 4, you get 9.32 unused vacation days. This number is then multiplied by daily earnings, for example 900 rubles. It turns out 8388 rubles. This is the money that a person is entitled to as compensation for unused vacation. Personal income tax will be withheld from the same amount - 13%.

Responsibility for late payments to a dismissed person

Salary payment

All types of pay (vacation pay, salary, benefits) are transferred on the day of dismissal of the employee. If the director of the enterprise does not pay the settlement within the established time frame, the dismissed employee has the right to appeal to the labor inspectorate, the court and the prosecutor's office.

Moreover, a complaint can be submitted to these three authorities simultaneously. As for the statute of limitations for disputes about delay or non-payment in full, a claim can be filed with the court within 3 months after dismissal.

In addition to salary and other compensation payments, the employee has the right to demand from the former employer payment of interest for days of delay at the rates established by the Central Bank.

Procedure for issuance and retention

It is understood that all monies due must be paid to the employee. At the same time, some of them can sometimes be withheld. In a specific case, we are talking about vacation pay when an employee is dismissed for the rest that he took, but the period of work was not fully worked out, and the citizen decided to terminate his relationship with this organization and wrote a letter of resignation.

But there is one more important nuance. Money for used vacation will not be withheld by the employer from a person’s salary upon his dismissal only if his departure from work is due to staff reduction or liquidation of the organization. In this case, the employee will also have the right to severance pay in the amount of average income for two months, and if he did not get a job, then for the third month. The final payment upon dismissal of a citizen occurs on the last day of his work activity. And he is paid: salary, compensation for unspent vacation, severance pay, if applicable.

Leave when transferring within the organization

The transfer of an employee from one enterprise to another is considered a common occurrence. This procedure has some advantages for the employee and is regulated by this legislation of the Russian Federation. If dismissal occurs by transfer, leave is retained under certain conditions

It is important for both parties involved in the translation process to know this.

Types of translation

To understand whether compensation is paid for unused vacation upon transfer, it is important to know where the employee will be transferred. There are two types of employee transfer:

internal movement of people between departments of one institution;
external transfer from different departments, which occurs by calculation.

Options for moving from one enterprise to another, ending with transfer, are determined by the initiative of each party. They are as follows:

Transfer of employees at their own will. With this option, the head of the department sends an invitation letter to the current manager, which contains a notification of readiness to hire the required employee. The notice may be sent by mail or delivered in person. If the manager agrees to transfer the employee to another organization, he needs to submit an application for dismissal in connection with the move. Then an order is issued with information entered into the work book and personal file. The employee receives all documents and compensation payments, if such right exists. After this, a position in the new institution takes place.
Transfer of an employee at the initiative of the manager. This may happen due to a reduction in the workforce at the enterprise. Next, the employer searches for work for his subordinates. After that, the leaders discuss the terms of the move. Employees must agree. This is fixed in a tripartite agreement, which provides for an indication of the position, payment and working conditions.

Both options have a number of features. The manager must complete the documentation correctly in compliance with legal regulations.

Translation and its forms

5 hours 1 tbsp.

As Art. 72.1 of the Labor Code of the Russian Federation, transferring an employee to another place of work is permitted only with his written consent. This requires breaking the contract for the old workplace, which is provided for in paragraph 5 of Art. 77 Labor Code. Consequently, the transition of an employee from one enterprise to another through transfer is carried out in two stages:

It is necessary to dismiss the employee from his previous workplace.
Legal employment in another department.

Each stage must take place only in accordance with the norms of the current legislation of the Russian Federation.

The advantage of a transfer for an employee is the fact that he already has a mandatory right to employment with another employer, without yet leaving his old workplace. Such a guarantee is stated in a special document. It is sent by the new employer to the place of work of the employee who will be transferred.

The continuity of work experience that a transfer provides remains important. An article providing for leaving on one's own initiative does not provide such a basis. Previously, this affected the disability benefit, the amount of which could be significantly reduced. After 2007, changes occurred in the current legislation, and continuity of service became irrelevant. His settlement began to add up.

It is important to know whether vacation compensation is paid upon dismissal by transfer and under what circumstances. As mentioned above, the law provides for mandatory monetary compensation for the unused part of the vacation

An employee can also use his vacation entitlement before dismissal. It is also worth remembering that leave can be requested at a new place of work only after six months of employment.

Types of payments

Regardless of the reasons for termination of the employment contract, a final settlement is required. Mandatory payments include:

employee salary;
compensation for vacation that was not used;
severance pay upon termination of the relationship between the parties to the agreement under clause 2, part 1, art. 81 Labor Code of the Russian Federation.

Additional types of monetary support include: dismissal benefits by agreement of the two parties, as well as other types of material compensation established by the collective agreement.

Features of calculating average daily earnings upon dismissal

Since the amount of payments for performing work duties may vary, the Government of the Russian Federation has developed regulations for determining average earnings. Resolution No. 922 of December 24, 2007 states that the average salary is calculated in all situations that are provided for by the labor legislation of the Russian Federation. In particular, this happens in connection with a reduction in the company's workforce, during the liquidation of an enterprise, or when a specialist is dismissed.

How to calculate average daily earnings upon dismissal? Next, let's see how to calculate the indicator.

Basic rules for calculating SDZ:

Regardless of what operating mode is in effect at the enterprise, the calculation takes into account wages for the year, that is, for the 12 months preceding the moment the payment is calculated. In this case, only the actual time worked and the actual accrued salary are taken. A calendar month is defined as the period from the 1st to the last day of the month.
The following are subject to exclusion from the billing period, as well as from the accrued salary: cases of continued earnings; cases of disability, maternity leave; downtime due to the fault of the enterprise (for independent reasons); periods of strikes; unpaid holidays; paid additional days provided for the purpose of caring for disabled children; periods of release from work duties with full or partial retention of earnings.
If the billing period is not fully worked out, the actual earnings for the time worked are taken into account.
The use of SDZ is allowed when calculating vacation pay, and the average daily earnings are also taken when calculating compensation for unused vacations.
The formula for calculating SDZ takes the average monthly number of days equal to 29.3.
When calculating the amount of earnings, you should take into account all types of remuneration to staff for performing work duties according to the organization’s SOT (remuneration system). The source of the salary does not matter.

Base for calculating average earnings

The next indicator necessary to calculate the average daily earnings for compensation upon dismissal is the base. This is the sum of all employee payments for the period defined as settlement.

Not all employee benefits need to be included in the calculation. Only income that is directly related to the performance of work duties is subject to accounting.

You need to include in the average earnings base:

salary;
bonuses accrued based on the results of various periods (month, quarter, half-year, year) are taken into account in a special order, which is described below;
other incentive payments for labor achievements, according to the bonus system.

All other accruals are not subject to inclusion in the calculation of average daily earnings for compensation. That is, there is no need to take into account vacation pay, compensation for unused vacation days, sick leave, benefits, financial assistance, prize payments, travel allowance, compensation for travel, food, communications, etc.).

What payments are taken into account when calculating SDZ:

Accrued salaries to staff according to approved salaries (rates) for time worked.
Accrued wages for piece workers at accepted rates.
Earnings given in kind.
Earnings accrued in the form of commissions or percentages of sales revenue.
Cash remuneration for employees filling government positions.
Salary accrued to municipal employees.
Media employee fees.
Earnings for teachers of educational institutions for hours of teaching, regardless of the accrual period.
Earnings calculated at the end of the year.
All types of additional payments and allowances - for length of service, professional skills, combination, class, knowledge of foreign languages, work with state secrets, management, increase in volumes, etc.
All types of payments related to the characteristics of working conditions, including increasing coefficients for wages due to overtime, hard work, employment in dangerous (harmful) conditions, night shifts, work on holidays and weekends.
Additional remuneration for the work of class teachers and teaching staff.
Bonuses and other remunerations to personnel for the performance of labor duties approved by the LNA of the enterprise.
Other types of payments in accordance with the payment procedure adopted by the employer.

Social benefits - various benefits, including sick leave.
One-time payments – financial assistance, etc.
Some compensation payments are payment for rest, travel, food, accommodation, utilities, health care, use of personal transport, etc.

Arbitrage practice

Currently, many former employees are turning to court to protect their rights, which they believe were violated by the manager upon dismissal. Especially if the issue concerns cash payments that were not issued to the employee in a timely manner and in the required amount. In practice, there are even cases when employers, making payments to a citizen when reducing staff, made deductions from his income for vacation that was previously used. And this ultimately led to lawsuits and complaints.

Let's give a colorful example from practice. The employee was dismissed from the organization due to staff reduction. The boss paid him in full, but when paying the money, he made deductions for the vacation, which the citizen had already used in June. In addition, the dismissal procedure for layoffs was violated by the employer in that he did not offer available vacancies to the employee. But at the same time, he accepted other persons into vacant positions, which is prohibited when carrying out measures for dismissal on such grounds. Having counted his earned money and discovered violations of labor legislation, the former employee applied to the judicial authority with an application for reinstatement at work and payment for forced absenteeism, which occurred through the fault of his boss.

Having considered all the materials of the case, the court came to the conclusion: the employer carried out the layoff procedure without complying with the labor code. In addition, he made a completely incorrect calculation with the employee. He simply failed to make the final payment upon dismissal (2016). He grossly violated the norms of the labor code, in connection with which the citizen was reinstated in his position, and the employer paid him moral damages and compensation for the vacation used, which he had previously illegally withheld. That is why managers need to be especially careful when paying employees and avoid violations on their part, so as not to later prove their case in the courts.

The calculation procedure for dismissal for any reason is regulated by Article 140 of the Labor Code of the Russian Federation. In accordance with its requirements, the employer is obliged to give the employee all amounts and documents due to him on the last working day. The payment terms are directly regulated by labor legislation and can only change if the citizen did not work on the day of his dismissal (in this case, the corresponding amounts must be paid no later than the next day after the payment request is submitted). The full calculation should include:

wage balances for actual days worked;
amounts of vacation pay compensation for days of unused vacation;
other compensation payments (depending on the reason for termination of the employment contract and its terms).

Let's look at each of these amounts in more detail and understand exactly how to calculate severance pay upon dismissal.

Leave when transferring within the company

There are often cases when employees get promoted or change the department in which they work. All these situations are internal transfers, i.e. movements within one company (legal entity). At the same time, the employee continues to work in the previous organization without changing the employer. There is no layoff.

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Consequently, such an employee retains most of the previous constants, such as a personnel number, an employment contract, the right to rest and the number of days off. Since the employee is not fired, he remains included in the vacation schedule and can go on it as planned. Unless a situation arises where the employer has the right to postpone vacation dates.

Changes in leave when transferred to another position within the company

When transferring, leave is retained if such transfer was made within the same enterprise. In the process of formalizing the transfer of an employee from position to position, an additional agreement to the employment contract is drawn up. The text of the agreement must specify all changing terms of the contract:

new position, division;
new salary (tariff rate);
new rules for calculating vacation, etc.

According to the labor code, all workers can count on 28 calendar days of vacation. Therefore, it is impossible to reduce its duration during translation. In addition, if the employee is given an irregular schedule or new working conditions are harmful to his health, he is entitled to additional leave.

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The amount of additional rest, as a rule, is prescribed in the collective agreement or other company regulations. It would not be superfluous to indicate the additional size. vacation in an additional agreement to the employment contract.

Note! The calculation of length of service for the next vacation for a transferred employee will not change and will be counted from the date of admission. Whereas he has the right to an additional one only after moving

And, accordingly, the countdown of the calendar year will begin from the date of transfer.

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Severance pay: its calculation and amount

In a situation where the employer initiates the termination of the employment relationship, the citizen has the right in a number of cases to receive compensatory benefits. It is also called a day off. In this case, the amount of this payment can be in the amount of two weeks or one month’s earnings. Cash allowance in the amount of the employee’s salary for two weeks can be in the following cases:

If a person’s health condition does not allow him to continue working in this organization. Or when he refuses to move to another position, and the boss has nothing more to offer him.
In case of complete loss of a citizen’s ability to work.
If the terms of the employment contract change.
When a person is called up for military or alternative service.

In the amount of monthly earnings, the benefit is paid:

upon termination of an employment contract due to layoffs;
in case of liquidation of the organization.

Also, the collective agreement may establish other circumstances when such benefits are issued to an employee. However, payment of the final payment upon dismissal, including compensatory benefits, must be made on the last day of the person’s work activity. In addition, when calculating this type of compensation, it is necessary to take into account the payment of taxes if the amount of monetary compensation exceeds the employee’s salary three times. Otherwise, personal income tax is not paid.

How to calculate and pay vacation when transferring to another job

It happens that it happens in a company that one of the employees is transferred to another position, which differs not only in the amount of wages, but also in the number of vacation days due to him.

And then the question arises of how to correctly calculate the number of days he should rest and how much vacation pay he needs to pay in connection with these changes.

For example, if an employee previously worked in a position where he was entitled to fifty-six days of vacation, and he worked in this position for some time, and the remaining time he worked in a position where he was entitled to only twenty-eight days of vacation.

How to calculate vacation days?

Severance pay

In some cases, employers, in accordance with Article 178 of the Labor Code of the Russian Federation, must include severance pay in the calculation. It varies in size and depends on the reasons for termination of the employment contract and the category of employees. In particular, persons who were fired due to:

inability to continue working due to health reasons;
conscription for military or alternative civilian service;
reinstatement of the employee who previously performed this work;
a person’s refusal to transfer due to the organization’s relocation to another location.

In the amount of average monthly earnings, severance pay will have to be paid:

upon dismissal due to liquidation of the organization;
when reducing the number or staff of employees.

In addition, such employees have the right to receive compensation in the amount of average monthly earnings for the period of employment for a maximum of two months from the date of dismissal. However, these amounts are not included in the calculation upon dismissal, since they are paid later.

Transfer leave when required

When is leave due upon transfer? What are the rules for providing it? Let's figure out who has the right to such a vacation or compensation for it

new position, division;
new salary (tariff rate);
new rules for calculating vacation, etc.

And, accordingly, the countdown of the calendar year will begin from the date of transfer.

Previously, when the concept of “continuous service” was used, dismissal by transfer guaranteed its continuity. Nowadays, this can no longer be called an advantage, because “continuous service” in the calculation of sick leave has been replaced by “insurance service,” and it is calculated in total. And it has nothing to do with continuity.

Vacation on Saturday and Sunday. Maybe?

And even if you think logically, why should a new company fulfill the obligations of the previous employer and pay for the rest days of a new employee. This will be a direct cost for her.

Maternity leave is considered to be sick leave for pregnancy and childbirth and parental leave.

When it is impossible to make deductions for unworked vacation

In a number of cases provided for by law, deduction for vacation upon dismissal is not made. The following situations fall into this category:

Liquidation of the employer's organization.
Staff reduction.
Termination of an employment contract when a citizen is unable to perform duties due to illness.
Conscription into the army.
With a complete loss of previous working ability.
Reinstatement to previous position by court decision.
Termination of an employment contract upon the occurrence of circumstances beyond the control of the parties.

In any of the above cases of dismissal of a person, the boss must make a final settlement with him on the last day of his work and pay all funds due by law. Otherwise, the person has every right to defend his interests in the prosecutor’s office and the judiciary.

Is vacation retained when transferred through dismissal?

It must contain: involves carrying out a full settlement with the previous one. This means that employees are entitled to compensation:

for unused vacations.
for hours worked;

the person being dismissed is a minor;
going on maternity leave;
the dismissed person adopted a child under 3 months old.

has some advantages, which include:

guaranteed employment;
no need to undergo a probationary period.

Significant disadvantages include failure to maintain previous earnings. After all, the third-party organization is in no way connected with the previous one. In addition to this, in

Dismissal by transfer to another organization: registration procedure and documents

In this case, the employee is left without protection before the new manager.

If the dismissal occurs at will, then there will be no one to file a claim with. In case of dismissal due to transfer, the dismissing party may force the employee to work for a 2-week period.

During this time, the manager will be able to find an employee who will replace the fired one.

The employment contract may be terminated early, by agreement of all parties.

In this case, the employee will not have to work the required 2 weeks. Dismissal due to transfer can be external or internal.

Internal transfer (transfer within the company) is when the employer remains unchanged, but the employee’s position, place of work, etc. change.

d. such a transfer can be either permanent or temporary.

External transfer (transfer to another company) – occurs when an employee moves from one employer to another.

In this case, the day of dismissal is considered the last day of vacation. 28. When dismissing an employee who has not used his right to vacation, he is paid compensation for unused vacation.

Therefore, I will not cite the articles of the Labor Code of the Russian Federation, but the article itself from the net https://www.inauka.net/soxranyaetsya-li-otpusk-pri-perevode.

The rest days of the future vacation are - the number of rest days for which monetary compensation has already been received upon transfer + vacation days for the months of work after the transfer. Cash

How to save vacation time when transferring to another employer?

** on the decision of the Meshchansky District Court.

Moscow dated July 23, 2015, which decided: To satisfy the claim of Sh. ** against the State Unitary Enterprise "Mosgortrans" for declaring the actions illegal, declaring the refusal to grant leave illegal, the obligation to make changes to the periods of calculating leave - to refuse, At the hearing of the court of first instance The plaintiff and his representative appeared and supported the claim.

appeared and supported the arguments of the appeal.

Having listened to the plaintiff and his representative, discussed the arguments of the appeal, and checked the materials of the case, the judicial panel finds no reason to cancel the court's decision.

Leave when transferring within the organization

It is calculated from the day a person starts working.

If an employee worked as a head of a warehouse department, then he was transferred to a warehouse manager in the same structural unit, does the working year in the T-2 card change when transferred to another position?

According to the general rules, a transfer to another position is not a basis for changing the working year for which annual paid leave is provided in the employee’s personal card, Form T-2. In accordance with part one of Article 121 of the Labor Code of the Russian Federation, it is included in the length of service that gives the right to annual basic paid leave.

If a company plans to transfer an employee to another job (another position), then the employee must be notified of new job functions two months in advance.

Based on this document, the personnel service employee issues an order using the unified form No. T-5 (approved by the Decree of the State Statistics Committee of Russia dated January 5, 2004.

№ 1)

If you are dismissed by transfer, do you still have the right to leave or do you have to wait 6 months?

"Article 122.

Procedure for granting annual paid leave Paid leave must be provided to the employee annually.

Leave for the second and subsequent years of work may be granted at any time of the working year in accordance with the order of provision of annual paid leave established by a given employer.” The Labor Code directly spoke about this in Part 2 of Article 71. The procedure for granting vacations

Care on your own initiative

The final payment upon dismissal of one's own free will must be made to the person on the last day of his employment duties, which includes:

salary for the entire period of work;
compensation for vacation or vacations if a person worked without annual rest for several years in a row.

An important fact should be noted here. If the vacation was used by a citizen, but the period of work was not fully completed, accordingly, upon termination of the contract at the request of the latter, the employer has the right to withhold previously paid funds from his money.