E.A. answered questions. Shapoval, lawyer, Ph.D. n.

Compensation for leave upon dismissal: frequently asked questions

Often, by the time of dismissal, it turns out that the employee still has unpaid vacation. In this case, he needs to calculate and pay compensation Yu Art. 127 Labor Code of the Russian Federation.

If an employee has worked for less than half a month, no compensation is paid.

N.M. Somova, Tula

Do we understand correctly that an employee who was hired on February 1, 2011 and quits on February 11, 2011 does not need to be paid compensation for vacation?

We warn the employee

If an employee has worked for you for less than 15 calendar days, then he is not entitled to compensation for vacation.

: Right. Compensation is paid in proportion to the time worked. In this case, the time worked may include full and partial months. If the month is incomplete and the employee worked less than half the month, he is not entitled to compensation for such a month. And if he worked for half a month or more, then for such a month you need to pay compensation as for a full month ts Art. 423 Labor Code of the Russian Federation; , approved NKT USSR 04/30/30 No. 169,. But please note that we are not talking about a calendar month, that is, about the period from the 1st to the 30th (31st) (in February - to the 28th (29th)) day of the month inclusive. When determining the right to payment of compensation for unused vacation, the months worked must be taken into account. That is, from the moment you start working until this date next month. For example, if an employee was hired on January 24, 2011, then the month he worked will expire on February 23, 2011. If this employee resigns voluntarily on February 9, 2011, he must be paid compensation for unused vacation, since he worked in organization 17 calendar days, that is, more than half a month. In your case, the time worked accounts for 11 calendar days. This means there is no need to pay compensation.

We calculate compensation when more than half a month has been worked

O.A. Vasilyeva, Tomsk

The employee with summarized working hours was hired on February 1, 2011, his last day of work was February 16, 2011. He worked all shifts as scheduled. For the time worked, he was credited with 20,680 rubles. The duration of vacation for an employee is 28 calendar days. How do we calculate compensation for unused vacation?

: The employee is really entitled to compensation, since he worked in your organization for 16 calendar days, that is, more than half a month. Time worked should be rounded up to 1 month A Art. 423 Labor Code of the Russian Federation; clause 28 of the Rules on regular and additional leaves, clause 35 of the Rules on regular and additional leaves.

The procedure for calculating compensation for employees with summarized working hours is exactly the same as for other employees. V Art. 139 Labor Code of the Russian Federation; pp. 1, 2 Regulations on the specifics of the procedure for calculating average wages, approved. Decree of the Government of the Russian Federation dated December 24, 2007 No. 922(hereinafter referred to as the Regulations), clause 4 of the Regulations, clauses. 9, 10 Provisions:

STEP 1. We determine the number of unused vacation days in calendar days:

In your case, the employee is entitled to compensation for 2.33 days (1 month x 28 days / 12 months).

Rounding the number of unused vacation days is not provided for by law, but is not prohibited either. According to the Ministry of Health and Social Development of Russia, the organization has the right to decide on rounding And Letter of the Ministry of Health and Social Development of Russia dated December 7, 2005 No. 4334-17. But in this case, rounding can only be done in favor of the employee, for example, 2.33 - up to 3 calendar days. Otherwise, the employee’s situation worsens A Articles 8, 9 of the Labor Code of the Russian Federation.

STEP 2. We determine the salary amount.

Your employee did not have a salary in the billing period (February 2010 - January 2011), since he was not yet working in your organization. Therefore, to calculate compensation, you need to take the salary for the days worked by the employee before dismissal I clause 2 of the Regulations, clause 7 of the Regulations, that is, 20,680 rubles.

STEP 3. We determine the estimated number of calendar days.

This should be done not for the billing period, but for the month of dismissal (February 2011), since the employee did not work for you during the billing period. It is determined in the same way as for an incompletely worked month of the billing period A clause 10 of the Regulations:

For the time worked by the employee in February 2011, the estimated number of calendar days will be 16.8 days. (29.4 days / 28 days x 16 days).

STEP 4. We determine the amount of compensation for unused vacation. The compensation you need to pay to the employee is calculated using formula (1):

RUB 20,680 / 16.8 days x 2.33 days = 2868.12 rub.

Forced absenteeism is included in the length of service for vacation, but is not taken into account for compensation

E.V. Utkina, Smolensk

The employee was fired at the initiative of the employer on November 22, 2010. He went to court. By court decision, he was reinstated at work with pay for forced absence from November 23, 2010 to February 7, 2011. On February 11, 2011, the employee resigned of his own free will. Is it necessary to include the period of forced absence into the vacation period when calculating compensation for unused vacation? Is this period included in the calculation period for calculating compensation?

: You need to include the time of forced absence from November 23, 2010 to February 7, 2011 in your vacation experience A Art. 121 Labor Code of the Russian Federation. That is, when determining the number of days of unused vacation for which compensation must be paid, take this period into account.

But when calculating compensation, this time and the amount of payment for forced absence must be excluded from the billing period. After all, the time of forced absence is paid according to the average salary at Art. 394 Labor Code of the Russian Federation. And all periods paid according to average earnings, with the exception of breaks for feeding the child, must be excluded from the calculation period A subp. “a” clause 5 of the Regulations.

This was confirmed to us by the Russian Ministry of Health and Social Development.

From authoritative sources

Deputy Director of the Department of Wages, Labor Safety and Social Partnership of the Ministry of Health and Social Development of Russia

“ The period of forced absence is always paid based on the employee’s average earnings A Art. 394 Labor Code of the Russian Federation. And periods when the employee is paid average earnings are excluded from the calculation period for calculating average earnings. I subp. “a” clause 5 of the Regulations. Therefore, the period of forced absence and the amount of payment for it are not included in the calculation of average earnings.”

If the day of dismissal is the last day of the month, then this month is included in the billing period

E.A. Tandelova, Ufa

The employee resigns of his own free will. His last day of work falls on February 28, 2011. Should February 2011 be included in the calculation period for paying him compensation for unused vacation?

: Need to. The calculation period for compensation is 12 full calendar months preceding the period paid in the amount of average earnings. If the day of dismissal, that is, the last day of work, coincides with the last calendar day of the month, then this month is full and must be included in the pay period d Art. 139 Labor Code of the Russian Federation; Letter of Rostrud dated July 22, 2010 No. 2184-6-1.

Therefore, in your situation, the estimated period will be “March 2010 - February 2011”.

Compensation for minors working for up to 2 months is considered according to a more profitable option for them

CM. Kirillova, Moscow

We hired a minor under a fixed-term employment contract (from February 1 to February 28, 2011) with a salary of 5,000 rubles. Workers under the age of 18 are entitled to leave of 31 calendar days. At the same time, employees who have entered into an employment contract for a period of up to 2 months are entitled to vacation at the rate of 2 working days per month of work. How many days does our employee need to pay compensation for unused vacation: 2 working days or at the rate of 31 calendar days per year of work?

: In your case, both of these rules apply to a minor employee s Art. 267 Labor Code of the Russian Federation, Art. 291 Labor Code of the Russian Federation. Therefore, you need to determine when the compensation amount will be higher.

STEP 1. We determine the amount of compensation for unused vacation as for an employee under the age of 18.

We determine the number of vacation days for which the employee is entitled to compensation, based on the fact that he, as a minor, is entitled to vacation of 31 calendar days per year of work s Art. 139 Labor Code of the Russian Federation, art. 267 Labor Code of the Russian Federation; pp. 9, 10 Provisions, according to formula (2):

1 month x 31 days / 12 months = 2.58 days

Since the minor employee worked completely in February 2011, he is included in the calculation period “March 2010 - February 2011”. And the estimated number of calendar days for the billing period is 29.4 days .clause 10 of the Regulations

The amount of compensation for unused vacation is determined by formula (1):

2.58 days x 5000 rub. / 29.4 days = 438.78 rub.

STEP 2. We determine the amount of compensation for unused vacation as for an employee who has entered into a fixed-term employment contract for a period of up to 2 months.

We calculate compensation at the rate of 2 working days per month of work s Art. 291 Labor Code of the Russian Federation; clause 11 of the Regulations:

The amount of compensation for unused vacation with this calculation will be:

RUR 434.78 (5000 RUR / 23 days x 2 days)

STEP 3. We compare the amounts received.

In your situation, you need to pay compensation to a minor employee at the rate of 31 calendar days per year of work, since its amount is larger.

But in another situation, the amount of compensation may be greater at the rate of 2 working days per month. Therefore, in any case, you will have to calculate both compensations and choose the one whose size is larger.

Part-time workers are also entitled to compensation for unused vacation

HELL. Voronova, Chelyabinsk

We hired a part-time worker under a fixed-term employment contract. Is it necessary to pay such an employee compensation for unused vacation upon termination of an employment contract with him?

: Need to. Compensation is also due to part-time workers working under a fixed-term employment contract, just like any other employee. m Art. 127 Labor Code of the Russian Federation, art. 287 Labor Code of the Russian Federation.

We always fire an employee on a working day

T.A. Ivanova, Suzdal

The employee submitted his resignation on February 7, 2011. Do we understand correctly that he must be dismissed on Friday, February 18, 2011, since the two-week notice period expires on Sunday, February 20, 2011?

: No, that's not correct. The notice period for dismissal must be counted from the day following the day the employer receives the employee’s resignation letter. And Art. 80 Labor Code of the Russian Federation. Therefore, if the employee submitted the application on February 7, 2011, the two-week notice period will not expire on Sunday, February 20, 2011, but on Monday, February 21, 2011.

If an employee wants his last day of work to be Friday, then a resignation letter of his own free will must be submitted two weeks in advance, but not on Monday, but also on Friday.

But if, after all, 2 weeks after the employee gave notice of dismissal expired on a day off, then you would need to fire the employee on the next working day following the last day of the notice period I Art. 14 Labor Code of the Russian Federation.

It may turn out that Sunday is your working day. Then you fire the employee on Sunday, that is, on the last day of the notice period.

Any compensation for vacation must be subject to insurance premiums.

M.I. Demina, Ryazan

The employee has a vacation of 56 calendar days. In January 2011, at the request of the employee, we paid him compensation for part of the unused vacation for 2010. Do I need to charge insurance premiums for it?

: Need to. You pay compensation for part of the vacation for 2010 in 2011. And from January 1, 2011, any compensation for vacation (both upon dismissal and at the request of the employee without dismissal) must be charged insurance premiums, including contributions “for injuries » subp. “and” clause 2, part 1, art. 9 of the Federal Law of July 24, 2009 No. 212-FZ “On Insurance Premiums...”; subp. 2 p. 1 art. 20.2 of the Federal Law of July 24, 1998 No. 125-FZ “On compulsory social insurance against industrial accidents and occupational diseases”.

An employee is entitled to full vacation per working year.

E.I. Krasikova, Serpukhov, Moscow region

Do we understand correctly that an employee who was hired on March 1, 2010 and quits on February 1, 2011, if he took a full vacation (28 calendar days), does not need to withhold anything for unworked vacation days?

: Wrong. Although your logic is clear. Annual leave is included in the length of service giving the right to leave To Art. 121 Labor Code of the Russian Federation. At the time of dismissal, the employee’s length of service in your organization was 11 months, including vacation. This means he is entitled to a full vacation. To Art. 423 Labor Code of the Russian Federation; clause 28 of the Rules on regular and additional leaves.

However, an employee is entitled to full leave not for 11 months of service in your organization, including vacation, but for a working year, that is, for 12 months of service in your organization, including vacation To Art. 115 Labor Code of the Russian Federation.

Therefore, in your case, at the time of dismissal, the employee had not worked 1 month towards the vacation provided to him in advance. And you can (but are not obliged) to withhold from him the overpaid amount of vacation pay for 1 month unworked at the time of dismissal, that is, for 2.33 days I Art. 137 Labor Code of the Russian Federation.

03/26/2019, Sashka Bukashka

If a citizen does not have the opportunity to rest this year, then the vacation period can be postponed to the next calendar year. We talked about the current rules and subtleties of transfer in a separate article: “”.

How is compensation for unused vacation calculated?

The due amount of compensation for unused vacation is determined based on the average salary of a specialist, calculated for the previous 12 months, and the number of calendar unused vacation days.

The formula for calculating vacation compensation is as follows:

The accounting department or human resources department usually knows how many days of unused vacation an employee has left. And for this, all wages and bonuses for 12 months are taken and this amount is divided by the number of calendar days.

This is how the amount a person should receive is calculated - by the way, we have a convenient one on our website. You can use it and calculate it for yourself.

But please note that you will receive 13% less than the calculated compensation amount. This money, like salary, is subject to income tax. They are also subject to insurance contributions (for pensions and healthcare) in the amount of 30%, but paying them is the responsibility of the employer, who is obliged to make these contributions from his own funds.

Vacation if the employee has not worked for a year

In this case, compensation for unused vacation is due on a general basis. It doesn’t matter how long a person has been in the organization, even a week, for all this time he should be given compensation upon dismissal.

If the period of work was 11 months, then compensation for vacation is calculated as for 12. This is a condition that is specifically stipulated in the legislation.

Oksana, there is no way to dismiss an employee due to the liquidation of the enterprise. You have the right to make a claim for the provision of a Saturday amount in accordance with Art. 154 Labor Code of the Russian Federation.
It is necessary to notify the employer in writing about the accrual of an old-age pension, and for a period of up to 10 days.
I draw your attention to the fact that, by virtue of Article 90 of the Labor Code of the Russian Federation, for reasons related to changes in organizational or technological working conditions
(as amended by Federal Law dated June 30, 2006 90-FZ)
(see text in the previous edition)
Article 236 of the Labor Code of the Russian Federation. Pay on weekends and non-working holidays
Work on a weekend or a non-working holiday is paid at least double the amount:
for piece workers - at least at double piece rates,
employees whose work is paid at daily and hourly tariff rates - in the amount of at least double the daily or hourly tariff rate,
an employee who has a disabled child under the age of eighteen, a single mother raising a child under the age of fourteen, a father raising a child under the age of fourteen (a disabled child under the age of eighteen), as well as a person caring for a sick family member in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, mothers and fathers raising children under the age of five without a spouse, employees with disabled children, and employees caring for sick members of their families in accordance with a medical report,
issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation. At the same time, disabled people and women with children under three years of age must be informed of their right to refuse overtime work upon signature.
The duration of overtime work should not exceed 4 hours for each employee for two consecutive days and 120 hours per year.
The employer is required to ensure that each employee's overtime hours are accurately recorded.
About the upcoming dismissal due to the liquidation of the organization, reduction in the number or staff of the organization’s employees
When carrying out measures to reduce the number or staff of an organization's employees, the employer is obliged to offer the employee another available job (vacant position) in accordance with part three of Article 81 of this Code.
Employees are warned by the employer personally and against signature at least two months before dismissal about the upcoming dismissal due to the liquidation of the organization, reduction in the number or staff of the organization's employees.
The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the period specified in part two of this article, paying him additional compensation in the amount of the average salary of the employee, calculated by regulatory work, institutions of commercial organizations, as well as for compliance with the laws issued by them. acts.
With respect to you,
Head of the Consumer Rights Protection Department 1. Protection of consumer rights is carried out by the court. 2. Claims for the protection of consumer rights may be brought, at the choice of the plaintiff, to the court at the place:
location of the organization, and if the defendant is an individual entrepreneur, his residence, residence or stay of the plaintiff,
conclusion or execution of a contract.
If a claim against an organization arises from the activities of its branch or representative office, it may be brought to court at the location of its branch or representative office.
Consumers and other plaintiffs in claims related to violation of consumer rights are exempt from paying state duties in accordance with the legislation of the Russian Federation on taxes and fees.
If documents certifying ownership are not available, the person submits a claim for a refund of overpaid tax and is obliged to put a mark on the transfer of funds in monetary terms within 10 days. In addition, according to Article 185 of the Civil Code of the Russian Federation, they are not subject to satisfaction in the execution of enforcement documents, collection of the amount under enforcement documents containing security on behalf of the relevant territorial body (branch, representative office), its deputies and the chief accountant (clause 2, part 1, art. 45 of the Civil Code of the Russian Federation), property tax deduction in the amount of 100,000 rubles. Thus, you missed the deadline for using it at the price established by the Government of the Russian Federation. After this, the divorce will not be resolved. And if you were carried out for free, then accordingly forget about the activity as you will not receive payments. In this case, the privatization of the apartment is not free; it can only be used within the limits of the provision of all residents. In this case, both participants are not eligible. If your neighbors are on the receiving end, then you can move out to the apartment yourself.
Good luck.

The only current regulatory document explaining the procedure for calculating compensation for unused vacation remains the Rules on regular and additional vacations, approved by the People's Commissar of the USSR on April 30, 1930 No. 169 (hereinafter referred to as the Rules).

According to paragraphs 28, 29 and 35 of the Rules, an employee who has worked in an organization for 11 months, which are subject to credit towards the period of work giving the right to leave, receives full compensation for unused leave. The amount of full compensation is equal to the amount of payment for vacation of the established duration.

According to clause 28 of the Rules on regular and additional leaves, approved by the People's Commissariat of Labor of the USSR on April 30, 1930 N 169, upon dismissal of an employee who has not used his right to leave, he is paid compensation for unused leave.

You can receive compensation for all unused days of annual paid leave only upon dismissal (based on Article 127 of the Labor Code of the Russian Federation).

For an employee who continues to work, upon his written application, only that part of the annual paid leave that exceeds 28 calendar days can be replaced with monetary compensation (based on Article 126 of the Labor Code of the Russian Federation).

When calculating the terms of work that give the right to compensation for leave upon dismissal, surpluses amounting to less than half a month are excluded from the calculation, and surpluses amounting to at least half a month are rounded up to a full month (clause 35 of the Rules).

Please note: even if the employee has not been on vacation for more than two years, which is prohibited by law (Article 124 of the Labor Code of the Russian Federation), upon dismissal he is entitled to compensation for the entire period. After all, as already mentioned, compensation should be paid “for all unused vacations.”

There is one more subtlety: employees with whom civil contracts have been concluded are not entitled to compensation for unused vacation, since the norms of the Labor Code do not apply to them.

Example 1

The employee was hired by the organization on March 16, 2009, and left on February 8, 2010. During this period, he was on annual paid leave for 28 calendar days and on leave without pay for 17 calendar days. It is required to determine the number of calendar days of compensation for unused vacation upon dismissal.

The period from March 16 to February 8 of the following year accounts for 10 months and 23 days. Of the number of calendar days of unpaid leave, 3 days cannot be included in the length of service giving the right to annual leave (17 days - 14 days) (see Article 121 of the Labor Code of the Russian Federation.)

Thus, the employee is entitled to vacation for a period of 10 months and 20 days. Since 20 days are more than 15 days, the employee’s length of service, from which the duration of the vacation is determined, is 11 months. In this case, the employee is entitled to full compensation for 28 calendar days. Considering that he has already used his vacation, he has nothing to compensate upon dismissal. Employees who have worked from 5.5 to 11 months also receive full compensation if they quit due to:

• liquidation of an enterprise (institution) or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work;
• entry into active military service;
• business trips in the prescribed manner to universities, technical schools, and preparatory departments at universities;
• transfers to another job at the suggestion of labor bodies or their commissions, as well as professional organizations;
• revealed unsuitability for work.

Example 2

The employee was hired on March 1, 2008. He used 28 calendar days of annual basic paid leave in 2008. Resigns on October 1, 2009 due to the liquidation of the enterprise. The length of service for calculating compensation for unused vacation will be 7 months. (from March 1 to October 1, 2009 inclusive). This is more than 5.5 months. Consequently, the employee is entitled to compensation for a full vacation, i.e., 28 calendar days.

An employee who has not worked in an organization for a period giving him the right to full compensation has the right to proportional compensation for calendar days of vacation. In this case, based on paragraph 29 of the Rules, the number of days of unused vacation is calculated by dividing the duration of vacation in calendar days by 12. Based on this, with a vacation duration of 28 calendar days, the amount of compensation will be 2.33 calendar days for each month of work included in the length of service, giving the right to receive leave.

Current legislation does not provide for the possibility of rounding days of unused vacation to whole numbers (2.33 days, 4.66 days, etc.).

In accordance with paragraph 8 of Article 255 of the Tax Code of the Russian Federation, for profit tax purposes, only the amount of compensation for unused vacation that is calculated in accordance with generally established rules can be recognized as expenses. Rounding the number of days of unused vacation upward (from 4.66 days to 5 days) will lead to an overestimation of the amount of payments made in favor of the employee and to an understatement of the tax base for income tax. Rounding down (from 2.33 days to 2 days) will result in payment to the employee of less than the amount required by law.

There is no rounding to whole values ​​of the number of days of unused vacation in the calculations given as examples in letters of Rostrud dated July 26, 2006 No. 1133-6, dated June 23, 2006 No. 944-6.

As a rule, the last month of vacation experience is incomplete. If 15 calendar days or more have been worked, this month of service is rounded up to the full month. If less than 15 days are worked, the days of the month are not taken into account (Article 423 of the Labor Code of the Russian Federation, clause 35 of the Rules, letter of Rostrud dated June 23, 2006 No. 944-6).

Example 3

An employee of the organization was hired on September 27, 2008, and since May 4, 2009, he resigns at his own request. It is necessary to determine how many months he is entitled to compensation for unused vacation if he has never been on vacation.

According to paragraph 35 of the Rules and Article 423 of the Labor Code of the Russian Federation, when determining the number of vacation days for which an employee is paid compensation upon dismissal, it is necessary to take into account that if the employee worked for less than half a month, the specified time is excluded from the calculation, and if half or more than half a month was worked, then the specified period is rounded to the nearest full month. The period for granting leave is from September 27, 2008 to September 26, 2009. From September 27, 2008 to April 26, 2009, the employee worked fully for seven months. The period from April 27 to May 4 is eight calendar days, which is less than half a month. Therefore, this period is not taken into account.

Thus, in this case, the total number of months for which the employee is provided with compensation is seven. The number of days of unused vacation is calculated using the formula:

Kn = Co x 2.33 days - Co,
where Kn is the number of days of main vacation that the employee did not take off at the time of dismissal; Co - the duration of the vacation period in full months; Ko - the number of days of main vacation that the employee took off at the time of dismissal.

Example 4

The employee was hired on December 3, 2008, and fired on October 31, 2009. In June 2009, he was on basic leave for 14 calendar days, and in August 2009, he was on leave without pay for 31 calendar days. In total, the employee worked for the organization for 10 months and 29 days.
Since the duration of leave at one’s own expense exceeded 14 calendar days per working year, the employee’s total length of service should be reduced by 17 calendar days (31 - 14).
The employee's vacation period will be 10 months and 12 calendar days (10 months 29 days - 17 days). Since 12 calendar days are less than half a month, they are not included in the calculation.
Consequently, 10 full months are counted towards the length of service giving the right to leave.
The employee took two weeks off from work. There is no need to pay compensation for them. Thus, in the case under consideration, the employee is entitled to compensation for 9.3 calendar days (10 months x 2.33 days - 14 days).

Compensation upon dismissal is paid at the rate of two working days per month of work:

• employees who have entered into an employment contract for a period of up to two months (Article 291 of the Labor Code of the Russian Federation);
• seasonal workers (Article 295 of the Labor Code of the Russian Federation).

Example 5

A short-term employment contract was concluded with the employee to perform work from March 27 to May 5, 2009 inclusive. It is required to calculate the amount of compensation for unused vacation upon dismissal.

During the period from March 27 to May 5, 2009, 1 month and 8 days were worked. Since 8 calendar days are less than 15, they are not taken into account. Consequently, 1 month of work is counted towards the length of service giving the right to receive compensation for vacation.

Since a short-term employment contract has been concluded with the employee, the rules of Article 291 of the Labor Code of the Russian Federation apply. Compensation for unused vacation will be 2 working days.

If an employment contract is concluded with an employee for an indefinite period, but for some reason it is interrupted before the end of the two-month work period, the provisions of Article 291 of the Labor Code of the Russian Federation cannot be applied.

Example 6

An employment contract for an indefinite period was concluded with the employee on November 2, 2009. The employee resigns of his own free will on December 14, 2009. It is required to calculate the number of calendar days of compensation for unused vacation upon dismissal.

The duration of work in the organization was 1 month and 12 days. Vacation compensation is due to any employee who has worked for more than 15 calendar days.

The contract with the employee was concluded for an indefinite period, therefore the rules established by Article 291 of the Labor Code of the Russian Federation for employees with whom a contract was concluded for a period of up to two months cannot be applied. The amount of compensation is determined based on the generally established vacation duration of 28 calendar days. The length of service giving the right to leave is 1 month. Therefore, the employee is entitled to compensation in the amount
28 days / 12 months x 1 month = 2.33 days

In educational budgetary organizations, teachers and professors who resign after 10 months of the academic year have the right to receive compensation for the full duration of vacation of 56 calendar days. If a teacher resigns during the academic year, he is entitled to proportional compensation at the rate of 4.67 days for each month worked.

Example 7

It is required to calculate the amount of compensation for unused leave upon dismissal for 5 months for a secondary school teacher.
For 5 months of work, the teacher is entitled to proportional compensation at the rate of 56 days. / 12 months x 5 months = 23.33 days

For teaching employees whose vacation duration is set at 42 calendar days, upon dismissal, full compensation for unused vacation is paid in the amount of full vacation if the employee worked for 11 months in the corresponding calendar year.

If by the day of dismissal the employee has worked for less than 11 months, proportional compensation is calculated, the amount of which is 3.5 days for each month worked.

Example 8

It is required to calculate the amount of compensation for unused leave upon dismissal for 10 months for a secondary school teacher.
For 10 months of work, proportional compensation is due at the rate of: 42 days. / 12 months x 10 months = 35 days

Article 127 of the Labor Code of the Russian Federation also provides, instead of receiving monetary compensation for unused leave upon dismissal, the possibility of providing paid leave with subsequent dismissal, with the exception of cases of dismissal on culpable grounds.

In this case, the day of dismissal should be considered the last day of vacation, and therefore the vacation days granted upon dismissal should also be included in the length of service, on the basis of which the duration of the vacation provided is determined.

Example 9

The employee is dismissed on March 25, 2009 under clause 1 of part 1 of Article 77 of the Labor Code of the Russian Federation “by agreement of the parties.” In his application, the employee requests that he be provided with unused vacation for the last working year before dismissal (28 calendar days). On the day of dismissal, the employee worked 8 months and 9 days in the current working year. It is necessary to determine the length of service for granting leave, the actual duration of leave and the date of dismissal.

The date March 25, 2009 is not the day of dismissal, but the day before the start of the vacation. As of this date, the employee worked 8 months and 9 days in the current working year. According to rounding rules, 9 days are discarded (since 9 days are less than 15 days), therefore leave must be provided for 8 months in the amount of:
28 days / 12 months x 8 months = 18.66 days

Leave is granted from March 26 to April 13, 2009. This means that April 13 is the day the employee is dismissed, and therefore, until April 13, 2009, the length of service that gives the right to paid leave must be taken into account.

The period from the beginning of the working year to April 13, 2009 is: 8 months. 9 days + 19 days = 8 months 28 days According to rounding rules, 28 days make up a whole month (since 28 days are more than 15 days), therefore, the indicated period accounts for 9 months of vacation experience. Therefore, leave must be provided for 9 months in the amount of 28 days. / 12 months x 9 months = 20.99 days

The employer is required to keep records of the time periods for which the employee is granted basic leave. The personnel service reflects these periods in the order (instruction) on granting leave to the employee, drawn up in form No. T-6 (T-6a). Based on the order, marks are made on the employee’s personal card (Form No. T-2), on the personal account (Form No. T-54, T-54a), and on the calculation note for granting leave to the employee (Form No. T-60). All forms of these documents and instructions for filling them out are approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1.

Amount of compensation for unused vacation

The procedure for calculating compensation follows from paragraph 8 of the Regulations, approved by Decree of the Government of the Russian Federation dated April 11, 2003 No. 213, and the decision of the Supreme Court of the Russian Federation dated July 13, 2006 No. GKPI06-637.
Based on these documents, the following formula can be derived:

Accounting

Compensation for unused vacation associated with dismissal is reflected in accounting as part of expenses for ordinary activities, namely as part of labor costs (clause 8 of PBU 10/99).

A resigning employee is entitled to monetary compensation for unused vacation. Moreover, compensation is paid for vacations accumulated over the entire period of work with a particular employer. To determine it, it is important to know the number of vacation days to which the employee was entitled at the time of dismissal and his average earnings.

Pavel Sutulin,
expert of the Legal Consulting Service GARANT

Upon dismissal, the employee is paid monetary compensation for all unused vacations. The amount of this compensation is determined by multiplying the number of vacation days not used by the employee at the time of dismissal by the employee’s average daily earnings. In turn, the number of days of unused vacation is the difference between the number of vacation days to which the employee became entitled at the time of dismissal and the number of vacation days used by the employee.

Determining the number of vacation days earned at the time of dismissal

The proportion in this case should look like this:

M 0: 12 = K y: K 0,

Where
Mo - the number of months worked by the employee;
12 - number of months in a year;
Ku - the number of vacation days to which the employee became entitled at the time of dismissal;
Ko - the number of days of the employee’s annual paid leave.

Thus, the number of vacation days earned by an employee is determined by the following formula:

K y =(M 0 * K 0) : 12

This formula is also used by courts when calculating the number of days of unused vacation.

Example

The duration of an employee's vacation is 28 days. The employee resigns of his own free will, having worked 8 months in the current working year. The number of vacation days due to him will be 28 days. x 8 months : 12 months = 18.67 days.

At the same time, there is a slightly different approach to the procedure for determining the number of vacation days to which the employee became entitled at the time of dismissal. This position is based on the explanations of Rostrud, according to which each month worked by an employee gives him the right to 2.33 (28 days: 12 months) days of vacation (with a vacation duration of 28 days). In turn, the final value of the number of vacation days earned by the employee is determined by multiplying this value by the number of months of vacation experience.

Thus, in essence, Rostrud proposes to split the above formula into two separate arithmetic operations:

1. divide the number of vacation days by 12;
2. multiply the resulting value by the number of months worked by the employee.

However, this approach seems to the author to be contrary to common sense and leading to deliberately distorted calculation results. The fact is that the value resulting from dividing 28 by 12 is an infinite decimal fraction 2, (3), and the number 2.33 is obtained as a result of rounding. Consequently, the use of this intermediate approximate value also negatively affects the accuracy of all subsequent calculations, and in the direction of reducing the number of days earned by the employee, that is, worsening his situation.

The application of this calculation procedure leads to the emergence of obviously absurd situations.

Example

The duration of an employee's vacation is 28 days. The employee resigns of his own free will, having worked 6 months in the current working year. It seems obvious that, having worked exactly half of the working year, the employee has the right to exactly half of his vacation, that is, 14 days. However, if you apply the calculation method of Rostrud, you get a slightly different value:

2.33 days x 6 months = 13.98 days.

At the same time, the application of the Rostrud methodology is reflected in judicial practice.
However, even if the employer considers it acceptable to use this approach to calculating the number of vacation days earned by an employee, please note that it is not possible for all employees, without exception, to determine the number of allotted vacation days based on 2.33 calendar days of vacation for each month of service. 2.33 days of vacation per month of service are due only to those employees whose annual paid vacation is 28 calendar days. If the full vacation is more than 28 days, then the number of vacation days per month of service will be more than 2.33. For example, a teacher whose vacation is 56 calendar days is due 4.67 calendar days of vacation per month of vacation experience (56 days: 12 months).

It should also be noted that current legislation does not provide for the possibility of rounding the resulting number of vacation days. The letter from the Russian Ministry of Health and Social Development noted that it is possible to round the number of days of earned leave, including to whole numbers, but not according to the rules of arithmetic, but in favor of the employee. However, this approach is valid only for those cases where rounding is the desire of the employer and is carried out, for example, in order to facilitate further calculations. If rounding is an objective necessity, then the employer is obviously forced to carry it out, regardless of the fact that the legislation does not regulate the procedure for such an action. According to the author, generally accepted arithmetic rounding principles can be used in this case.

Example

The duration of an employee's vacation is 28 days. The employee quits with 1 month of vacation experience. The number of days of vacation earned by him in this case will be the result of dividing 28 by 12, that is, 2, (3). However, the periodic fraction cannot be used by the employer in further calculations, and therefore he is forced to resort to rounding the resulting value. In this case, in accordance with established practice, rounding is done to hundredths. That is, the result will be 2.33 days. If the employer wants to round the resulting value to tenths or to a whole number, then in this case he will be forced to round up, that is, to 2.4 and to 3, respectively.

At the same time, the position of the Russian Ministry of Health and Social Development once again proves the illegality of the procedure for calculating the number of vacation days proposed by Rostrud. Since there is no need to use the value 2.33 as an intermediate value for further calculations, in this case the number 2.(3) would have to be rounded up, that is, to 2.34.

Determining the number of months of an employee’s vacation period

Separately, it is necessary to mention the peculiarities of determining the number of months of an employee’s vacation period. When calculating the periods of work that give the right to leave, surpluses amounting to less than half a month are excluded from the calculation, and surpluses over half a month are rounded up to a full month. At the same time, it is not specified what should be understood by half a month. Nevertheless, from the examples given in the Rules, we can conclude that 15 days are always taken as half a month when calculating length of service, regardless of the number of calendar days in the month in which they fall.

It should also be noted that in this paragraph we are talking about working months, not calendar months, and, accordingly, those surpluses that remain after determining the number of full working months are subject to rounding.

Example

The employee was hired on April 14 and fired on May 16, 2014. In this case, his length of service giving him the right to leave is 1 month and 3 days. Surplus amounting to less than half a month is not taken into account in further calculations. Thus, the employee’s vacation period is 1 month.

As mentioned above, paragraph 28 of the Rules establishes a number of cases when an employee has the right to full leave for a working year that has not been fully worked.

Thus, employees dismissed for any reason who have worked for the employer for at least 11 months, which are subject to credit towards the period of work giving the right to leave, receive compensation for full leave.

This legal norm is applicable as long as it is not inconsistent. After all, annual paid leave is included in the vacation period and is granted as a general rule during the working year for which it is due. In other words, 11 months of experience giving the right to vacation is always enough to make a full working year together with a full vacation.

Rostrud confirms this conclusion.

The right of employees to compensation for full vacation with at least 11 months of service is also recognized by the courts.

Since paragraph 28 of the Rules does not say that the right to full compensation is given by 11 months of vacation service only in the first working year, this provision applies to any working year in which the employee resigns. No judicial practice has been found that would refute this conclusion.

The question arises whether employees are entitled to full leave if their service is 11 months only as a result of rounding. For example, an employee worked 10 months and 18 days in the current working year. Based on paragraph 35 of the Rules, the excess of 18 days is rounded up to a full month, the vacation period is equal to 11 months. However, the author believes that the employee actually worked for less than 11 months and does not have the right to full leave on the basis of paragraph 28 of the Rules. He is entitled to compensation for 11/12 of his full vacation.
Obviously, full compensation is due to the employee who has not yet taken vacation for the corresponding working year. Consequently, 11 months of service giving the right to full leave should not include the time spent on the actual leave in question.

Example

The employee has the right to annual paid leave of 28 calendar days. The employee’s next working year began on 04/01/2013. From 08.11.2013 to 21.11.2013 (14 calendar days) he used part of the paid leave for this working year. The date of dismissal is March 14, 2014. There were no periods not included in the vacation period.
Vacation experience without time spent on vacation is exactly 11 months. Therefore, the employee acquired the right to full vacation. Since 14 days of them have already been used, compensation must be paid for the remaining 14 calendar days.

Employees who have worked from 5.5 to 11 months also receive full compensation for unused vacation if they are dismissed due to the liquidation of an enterprise or institution or its individual parts, reduction of staff or work, enlistment in military service, etc.
Judicial practice on the application of this rule is ambiguous.
Often, courts, when considering cases where the grounds for dismissal were the reasons listed in paragraph three of clause 28 of the Rules, recognized the right to full compensation for employees who worked from 5.5 to 11 months.
However, there are judicial acts with the opposite point of view: the rule of paragraph three of paragraph 28 of the Rules on full compensation should not be applied, since it contradicts, which enshrines the principle of proportional calculation of compensation for unused vacation.

Among those who consider paragraph three of paragraph 28 of the Rules to be valid, there is also no unity on all issues related to its application. Thus, Rostrud specialists indicate that the procedure for paying full and proportional compensation for work experience of up to 11 months applies only to employees who have worked in the organization for less than a year; compensation for the second working year is paid in proportion to the time worked. Some courts adhere to a similar position.

However, the author does not agree with the opinion of officials and judges and believes that the rules on full compensation should apply to all employees dismissed on the grounds specified in paragraph three of paragraph 28 of the Rules, regardless of how long they have been working for a given employer, if in the current their work experience is more than 5.5 months in the working year. The arguments in favor of this point of view are as follows. Clause 28 of the Rules exhaustively lists cases of payment of not only full, but also proportional compensation. The Rules do not contain provisions according to which employees who have worked for more than a year are always paid proportional compensation for unused vacation. They generally do not have separate legal regulation of the payment of compensation for unused vacation to employees who have been working for the employer for several years. Therefore, the choice between full and proportional compensation should not depend on the working year in which the employee quits. A different interpretation violates the principle of equality of rights and opportunities for workers, since with the same length of service in the current working year, it allows compensation for a different number of vacation days for this year. Similar conclusions can be found in judicial practice.

Taking into account the above, the number of vacation days to which an employee will be entitled upon dismissal if the duration of his vacation is 28 calendar days, depending on the length of leave and the basis for dismissal, is equal to the following values ​​(see table below). Also on this issue, see the materials in the information block “Encyclopedia of Solutions. Labor relations, personnel”, presented in the GARANT system.

The number of vacation days to which an employee is entitled upon dismissal, depending on the vacation period (with a vacation duration of 28 calendar days).