The employer's retreat upon dismissal of an employee. Dismissal payments. For calculating the severance pay, it is taken into account
Payments of salaries, unused vacations, overtime schedules, etc. We will discuss this in more detail later in the article.
Two ways to voluntarily change employers
The Labor Code provides for two articles of leaving work without negative consequences for the employee:
- By on their own.
- Dismissal by agreement of the parties.
Payments provided by law without fail will be the same.
Legal differences
Dismissal by mutual agreement in most cases implies that there is a certain conflict between the employee and the employer at the workplace. As well as other situations when an employee must leave the place of work:
- selection of fresh personnel by the new director;
- the specialist has ceased to meet the requirements;
- the conditions for the profitability of the enterprise have changed;
- reorganization and much more.
But if the employee is not going to write or, as provided in the Labor Code, terminate the contract on his own initiative, then he is offered dismissal by agreement of the parties. Payments in this case are somewhat different from other methods of termination of the contract. That is, such an employee is entitled to mandatory payments, as with any other method of dismissal, but he is also offered additional payments.
This is the fundamental difference. Mutual agreement, as a rule, is always supplemented by any "compensation" from the former employer. This can be a one-time benefit equal to an annual salary, a lifetime product discount, a constant profit share, and more. Thus former employee compensate for voluntary dismissal.
In the event of dismissal of his own free will, this is not provided, even if the employee is psychologically pressured and forced to leave the organization.
Judicial practice shows that it is almost impossible to recover after mutual consent. But you can cancel it on the initiative of the employee. It is enough to give the arguments that the administration will prove.
It is important to know what are the payments laid down by law, and the deadlines, upon dismissal of their own free will. So, upon termination of the contract on his own initiative, an employee can receive:
- wages;
- compensation for unused vacation;
- other transfers, in accordance with the law.
Deadlines for dismissal of your own free will: will payments be made immediately or will you have to wait?
The main question that worries employees the most is how long to wait for the due payments? The law does not provide for "tolerate". Payment of dismissal benefits and all calculations must be made on the day of dismissal. But what if the employee is absent for any reason (sick leave, day off)? In this case, all payments must be made no later than the next day after the application.
The employer doesn’t figure out what to do?
It should be noted right away that the final settlement on the day of dismissal is not a gift from the company, but an obligation.
If this does not happen, you must immediately contact either the prosecutor's office or labor inspection... After this, as a rule, the organization always has money. And the managers themselves pay considerable fines for violating labor laws.
How to calculate compensation for unused vacation
In order to find out what amount of payment will be discussed, you need to know the following:
- The number of days worked since the last paid annual leave.
- How many days per year is an employee supposed to be on vacation (for example, teaching staff have about two months).
- Average salary.
Calculation examples
Suppose an employee has the right, according to labor contract, for 30 paid calendar days a year. average salary he has 20 thousand rubles a month. This is approximately 670 rubles a day. Divide the amount calendar days at 30.
It turns out that for every 12 days of work, one day of paid leave is provided. The employee worked for 3 months, that is, 91 days. It is necessary to divide this number by 12 (this is how many vacation days the employee earned).
We multiply the result by 670. Therefore, in our example, for 91 days worked, an additional payment of a little more than 5080 rubles for unused annual paid leave is supposed.
This calculation formula is conditional. It is provided for a better understanding of the additional payment. Depending on the individual labor characteristics employee, accounting may use a different method. In any case, all formulas and pay sheets must be requested from the company without fail.
Labor Code of the Russian Federation (Labor Code): dismissal in compliance with the law
It is important to know that there are many cases when an employee is dismissed "under the article", and not of his own free will. Of course, this is all conditional, since in any case, one of the norms of the labor code serves as the basis for this.
But by “article” many people mean dismissal not at the initiative of the employee. The synonym here is the word “kicked out”. And in order to avoid a negative "article", it is necessary to carry out all legal procedures upon dismissal of your own free will. Payments, of course, the employer is obliged to make in any case, regardless of the reason, but the employee also has a number of responsibilities. And the most important of them is to notify the administration 2 weeks before the planned dismissal. Many people mistakenly call this term working off.
main feature
Working off is a must job responsibilities within a certain period. The Labor Code of the Russian Federation does not imply this in this case. It is enough to deliver a written notice that the employee is going to leave work two weeks in advance.
You can go on vacation, sick leave, etc. In this case, no work is provided. This was not in the Labor Code (Article 32 also provided for a warning), and it is not in the new Labor Code (Article 80).
A common mistake of the "smartest"
Some employees know that there is no working off, and they conclude from this that they can write and end the labor relationship any day. But this misconception very often leads to dismissal for absenteeism, which is negatively reflected in subsequent employment.
Therefore, it is very important to know upon dismissal what payments are due, and how correctly, from the point of view of legislation, to change employers.
Features of calculating sick leave payments
There are times when an employee is sick for a long time. During sick leave he decides to quit and sends a formal notice. for wages in this case, they are obliged to do on the last day of the two-week period, despite the fact that it falls on the sick leave.
It's just that a note appears in the order that with the content of this document it is impossible to acquaint a person. Although you can send documents or notifications by registered mail.
With regard to payments for sick leave, then they are calculated within 10 days from the date of submission of the certificate from medical institution and are made on the general day of transfer wages employees.
Every citizen of the Russian Federation who works officially has every right to receive monetary compensation for unused vacation.
However, few people know which nomes of the law regulate this? How to write a statement? How is monetary compensation calculated in a given situation?
What will happen to the employer if he does not pay compensation in full?
Let's consider these issues in more detail.
Legislative regulation
To date, the question of the very procedure for calculating vacation days, as well as receiving monetary compensation for its non-use, is regulated directly by the Labor Code of the Russian Federation.
In particular, we are talking about such articles:
- Article 423, which regulates the procedure for calculating vacation days for every citizen of the Russian Federation who works officially;
- article number 127, article number 126, which regulate the issue of payment of monetary compensation for unused vacation, including.
In addition to these laws, the Tax Code of the Russian Federation is also taken into account, which regulates the issue of taxation of monetary income received for unused main or additional vacation.
Determining the number of days
First of all, it is necessary to understand that the Labor Code of the Russian Federation does not have a clear procedure for determining the number of vacation days. But at the same time, when calculating the days of unused vacation, you must pay attention to article No. 423 of the Labor Code of the Russian Federation, which indicates: financial compensation paid pro rata days of unused vacation.
In order to understand the principle of determining vacation days, it is recommended to refer to the so-called cheat sheet, which will help determine the number of vacation days for which compensation is due:
When are these payments possible?
According to Articles No. 127 and No. 126 of the Labor Code of the Russian Federation, monetary compensation for unused vacation is paid to employees who provided a corresponding statement.
To understand who is entitled to monetary compensation, the best option will list those categories that can't get instead of vacation compensation.
In particular, we are talking about such as:
- pregnant women;
- employees under the age of 18;
- employees who carry out work activities, including hazardous ones.
The rules for paying this monetary compensation are described in the following video:
Calculation procedure
Upon dismissal
Upon dismissal, employees who are eligible for monetary compensation must write an appropriate statement.
Wherein basic settlement rules is as follows:
In order to understand the principle of calculating compensation for unused vacation, let us turn to an example.
Gribinyuk M.V. worked at the Proletary enterprise since July 2018. In June 2019, Gribinyuk made a decision on his dismissal and wrote a corresponding statement. His average earnings for a month was about 20 thousand rubles.
In the calculation itself, it should be noted that the time period of 12 months has been worked out in full.
According to this information, the calculation procedure is as follows:
Definition cash payments for the entire annual period: 12 * 20,000 = 240,000 rubles.
Quantity vacation days per year - 28 days (according to the Labor Code of the Russian Federation).
Determination of the average earnings per day for the employee M.V. Gribinyuk. To do this, you need to divide the average annual earnings by 12, and then by 29.4. When calculated, this figure will be about 680 rubles per day.
After that, calculation of monetary compensation for unused vacation is carried out as follows: 680 * 28 = 19,040 rubles.
And how to calculate if the time period is not fully worked out?
Let's consider an example:
Consider a situation when Gribinyuk worked at the Proletary enterprise from July 2018 to April 2019. He also had an average earnings of 20,000 rubles.
In this case, calculation of monetary compensation is carried out in this way:
- was taken into account - whether Gribinyuk issued a vacation in 2018. If you took a vacation, then it is not taken into account;
- it also determines how many months he worked - in this option 10;
- the income for 10 months is determined - 200,000 rubles;
- vacation days are calculated: refer to the above "cheat sheet" and see: 23.3 days;
- we determine the number of calendar days - 29.4 * 10, then add 29.4 / 28 days and multiply again by 28 days. Thus, 323.4 are the number of calendar days in a year;
- divide 200,000 by 323.4, and we get 14,409 rubles.
No dismissal
If we talk about the procedure for calculating monetary compensation for leave without dismissal, then the algorithm itself is completely identical to that of dismissal. There are no special features in this version.
Writing a statement
If we talk about the application itself, then there is no clear form for writing it in the current legislation. However, some rules still need to be followed.
In this case, we are talking about such rules, how:
Tax issues
It is necessary to understand that monetary compensation for unused vacation subject to taxation.
In turn, deducted in accordance with article 217 Tax Code RF only in such cases as:
- if monetary compensation is paid to the employee directly on the last working day;
- if compensation is paid on the day of receipt of wages, but the employee does not leave.
In other cases, personal income tax is not charged.
Income tax not taken into account.
It is worth remembering one key point - corporate income tax should not directly affect the amount of monetary compensation for employees.
Monetary compensation to any of the employees must be included and included in the company's expenses, which are necessary to make payments to its employees. This is enshrined in article 255 of the Tax Code of the Russian Federation.
Unified social tax, contributions to the Pension Fund and Social Insurance Fund are not paid.
The employer himself must obligatorily transfer all the necessary contributions if the company base itself has been reduced, only if the employee has decided:
If you analyze this point, then on the one hand it is so, but on the other hand, the legislation of the Russian Federation states that all employees who work officially are completely exempt from such types of taxation.
In addition, the Tax Code, in particular Articles No. 238, No. 11, states that the monetary compensation that is charged for the main vacation is not taxable.
Moreover, according to Article 255 of the Tax Code of the Russian Federation, additional leave cannot be taxed either.
In the event that the employer subjects this compensation to taxation, the employee has the right to apply to the court or to law enforcement agencies to protect his rights.
Features of calculating compensation in some situations
Decretress
The issue of providing monetary compensation for is regulated by such rules of law as:
- article No. 127 of the Labor Code of the Russian Federation;
- The rules on additional vacations, in particular, paragraphs 28 and 29.
When counting for a given category taken into account:
- the total number of vacation days for which compensation can be obtained;
- average daily earnings of a pregnant woman.
Each employer needs to pay attention to the fact that the calculation of monetary compensation for this category of citizens is strictly controlled by the Government of the Russian Federation. For this reason, if the rules are not followed, sanctions may be imposed on the employer.
Part-time
The current legislation of the Russian Federation does not divide the procedure for calculating compensation for unused vacation for ordinary employees and those categories who work part-time.
According to article No. 114 of the Labor Code of the Russian Federation, the calculation procedure is carried out in a standard way.
Upon dismissal by transfer
According to article No. 127 of the Labor Code of the Russian Federation, the calculation procedure for these categories of citizens is carried out in the same way as in the case of a regular dismissal. There are no special features.
For additional leave
The process of calculating monetary compensation, according to the Labor Code of the Russian Federation, is completely standard, as for regular main leave.
In the event that the employee has decided to receive monetary compensation for additional leave, accordingly, he should receive it on the day when the payment of wages is made.
The monetary compensation is calculated as follows: the number of days of additional vacation is multiplied by the average earnings per day. That's the whole feature.
Failure to pay or underpayment of compensation
In the event that the employer has not paid monetary compensation for unused vacation in full or in part, then there is a possibility of such sanctions, how:
- an administrative fine in the amount of 120 thousand rubles or in the amount of the employee's average annual earnings;
- deprivation of the right to hold leadership positions for a period of 1 year;
- the court may decide on forced labor for up to several years;
- prison term up to 1 year;
- a fine of 100 to 500 thousand rubles if the employer refuses to pay compensation.
Sometimes employers are obliged to pay the employee upon dismissal not only the salary for the time worked in the month of dismissal and compensation for unused vacation, but also other amounts.
It is with their calculation and payment procedure that difficulties often arise, since the Labor Code of the Russian Federation does not determine the exact procedure for their calculation or their payment.
And if you do something wrong, there may be complaints from the employee and the labor inspectorate, if he complains there. Claims from the inspectors cannot be avoided if an incorrect calculation of these payments will lead to an underestimation of the taxable base for income tax, personal income tax and contributions.
What payments and when are due to the employee
Upon dismissal for some reason, the obligation to make payments and their amount depend on who is the employer - the organization or the entrepreneur.
WE TELL THE EMPLOYEE
The employment authority will issue solution for receiving from the former employer earnings for the third month employment, if within 2 weeks after the dismissal, the employee contacts this body and does not have a job Art. 178 of the Labor Code of the Russian Federation.
If an entrepreneur dismisses employees in connection with the termination of activities and p. 1 h. 1 tbsp. 81 of the Labor Code of the Russian Federation or downsizing or downsizing item 2 h. 1 tbsp. 81 of the Labor Code of the Russian Federation, then severance pay and earnings for the period of employment, the dismissed employees are paid in the amount stipulated by the employment contract Art. 307 of the Labor Code of the Russian Federation... If nothing is spelled out in the contract with the employee, then nothing is paid at all The cassation ruling of the Kirov Regional Court dated 06.09.2011 No. 33-3185; The cassation ruling of the Khabarovsk Regional Court dated 09.07.2010 No. 33-4591; Determination of the Moscow Regional Court dated 05/27/2010 No. 33-8604.
Payments to employees upon dismissal on other grounds are the same for organizations and entrepreneurs.
Severance pay
The Labor Code obliges to pay severance pay only upon dismissal for the following reasons.
| Grounds for dismissal | Severance pay |
| Liquidation of the organization p. 1 h. 1 tbsp. 81 of the Labor Code of the Russian Federation | Average monthly earnings for all employees, excluding m Art. 178 of the Labor Code of the Russian Federation:
|
| Reduction of the number or staff of employees of the organization item 2 h. 1 tbsp. 81 of the Labor Code of the Russian Federation | |
| Refusal of an employee to transfer to another job for medical reasons clause 8 h. 1 art. 77 of the Labor Code of the Russian Federation | Two-week average earnings to Art. 178 of the Labor Code of the Russian Federation |
| Military conscription (recruitment for alternative service) p. 1 h. 1 tbsp. 83 of the Labor Code of the Russian Federation | |
| Reinstatement at work by a court decision or labor inspectorate of an employee who previously performed this work at item 2 h. 1 tbsp. 83 of the Labor Code of the Russian Federation | |
| Refusal of the employee to transfer to work in another locality together with the employer m Clause 9, Part 1, Art. 77 of the Labor Code of the Russian Federation | |
| Recognition of an employee as completely incapable of labor activity in accordance with the medical report m p. 5 h. 1 tbsp. 83 of the Labor Code of the Russian Federation | |
| The employee's refusal to continue working due to changes in the terms of the employment contract for reasons related to changes in the organizational or technological conditions of work Clause 7, Part 1, Art. 77 of the Labor Code of the Russian Federation | |
| Violation, through no fault of the employee, of the rules established by law for concluding an employment contract, if this excludes the possibility of his continuation of work and it is not possible to transfer him to another job at Clause 11, Part 1, Art. 77 of the Labor Code of the Russian Federation* | Average monthly earnings to Art. 84 of the Labor Code of the Russian Federation |
* Such violations include cases of concluding an employment contract with persons and Art. 84 of the Labor Code of the Russian Federation:
- who are deprived by a court verdict of the right to hold certain positions or engage in certain activities;
- for whom specific work is contraindicated for medical reasons;
- who do not have a certificate of education, and according to the legislation, the performance of work requires special knowledge;
- who are disqualified, deprived of a special right or expelled from the Russian Federation;
- who are dismissed from the state or municipal service if there are legislative restrictions on their employment;
- who are prohibited by law from engaging in certain types of work (for example, minors cannot be hired for harmful work Art. 265 of the Labor Code of the Russian Federation).
Severance pay is a payment for the very fact of being fired. Therefore, it must be paid to the employee on the day of dismissal. h. 4 tbsp. 84.1, art. 140 of the Labor Code of the Russian Federation... The basis for its payment is an order, which indicates the appropriate basis for dismissal. There is no need to issue a separate order for the payment of benefits.
Earnings for the period of employment
This payment is due only to employees who are dismissed from organizations on two bases m Art. 178 of the Labor Code of the Russian Federation:
- in case of liquidation of the organization;
- in the event of a reduction in the number or staff of employees.
| Employee category | For what period is the average monthly earnings paid |
| Seasonal workers | Not paid |
| Employees hired for up to 2 months | Not paid |
| Part-timers | Not paid |
| Persons working in the Far North and equivalent areas | Until the moment of employment, but not more than 6 months after dismissal Art. 318 of the Labor Code of the Russian Federation |
| Other employees | Until the moment of employment, but no more than 3 months after dismissal Art. 178 of the Labor Code of the Russian Federation |
Upon the expiration of the first month after the dismissal of the former employee nothing is paid because on the day of dismissal, severance pay has already been paid articles 178, 318 of the Labor Code of the Russian Federation.
Earnings for the period of employment should provide laid-off workers with material support after dismissal, provided that they did not immediately find another job. Therefore, it is paid only after the employee confirms that he has not yet found a new job.
Sometimes the employee (especially in the event of liquidation of the organization) earnings for the period of employment are paid immediately on the day of dismissal, without waiting for confirmation that the employee has not found a job. Such a payment is economically unjustified, since the employer has no evidence confirming its validity Art. 252 of the Tax Code of the Russian Federation.
What documents must be required from a former employee to pay wages for the period of employment, depends on which month after dismissal it is paid.
| Period | The amount of the payment and the documents on the basis of which it is paid articles 178, 318 of the Labor Code of the Russian Federation |
| After the second month after dismissal for ordinary employees | Average monthly earnings
|
| Upon the expiration of the second and third months after dismissal for persons working in the Far North and equivalent areas | |
| After the third month after dismissal for ordinary employees | Average monthly earnings*, if former employee will present:
|
| After the fourth, fifth and sixth months after dismissal for persons working in the Far North and equivalent areas |
* If the former employee gets a job before the expiration of the second or subsequent months after the dismissal, then the average monthly earnings must be paid to him in proportion to the "unemployed" period on the basis of a written application and a copy of the work book certified at the new place of work. articles 178, 318 of the Labor Code of the Russian Federation.
** It must be copied, certified and stored.
An employee can apply for this payment at any time, even one year after dismissal.
Compensation for early dismissal
WE TELL THE EMPLOYEE
If organization located in the process of liquidation, but also not excluded from the Unified State Register of Legal Entities, for earnings saved for the period of employment, the employee must contact liquidation commission... After all, after the exclusion of the organization from the Unified State Register of Legal Entities, it will no longer be possible to receive this payment.
When the organization is liquidated or its size or staff is reduced, the employer must notify employees in writing about the upcoming dismissal at least 2 months in advance. h. 2 tbsp. 180 of the Labor Code of the Russian Federation... At the same time, with the consent of the employee, the employment contract with him can be terminated before the expiry of the notice of dismissal with payment additional compensation, in addition to severance pay and average earnings retained by the employee for the period of employment.
The amount of additional compensation is determined based on the average monthly earnings of the employee, in proportion to the time remaining before the expiration of the warning period h. 3 tbsp. 180 of the Labor Code of the Russian Federation... For the organization, the payment of such additional compensation is not entirely profitable, because the employee will receive it not for work, but for agreeing to early dismissal.
Compensation for top managers
The Labor Code provides for special compensation for dismissal and Art. 181, paragraph 2 of Art. 278, art. 279 of the Labor Code of the Russian Federation:
- in connection with the change of the owner of the property of the organization - for its head, his deputies and the chief accountant.
Change of the owner of the property of the organization - these are, in particular:
- privatization of state or municipal property Art. 1 of the Law of December 21, 2001 No. 178-FZ;
- transfer to state ownership of property owned by the organization and clause 2 of Art. 235 of the Civil Code of the Russian Federation;
- sale of an enterprise as a property complex articles 559-566 of the Civil Code of the Russian Federation.
There is no change in the owner of the property of the organization when the composition of the participants of an LLC or JSC changes clause 1 of Art. 66, paragraph 3 of Art. 213 of the Civil Code of the Russian Federation; Clause 32 of the Resolution of the Plenum of the Armed Forces dated March 17, 2004 No. 2;
- without explanation - for the head of the organization in the absence of any culpable actions on his part.
Compensation to top managers must be paid on the day of dismissal in the amount of at least three monthly earnings per Art. 181, paragraph 2 of Art. 278, art. 279 of the Labor Code of the Russian Federation... In these cases, top managers are not paid severance pay and average monthly earnings for the period of employment.
Other payments upon dismissal
An employment or collective agreement may provide for payments to a dismissed employee on other grounds, as well as increased payments upon dismissal in cases established by the Labor Code of the Russian Federation x Articles 178, 279 of the Labor Code of the Russian Federation.
Calculation of payments upon dismissal
The calculation period for all these payments, including for the average earnings saved for the second and subsequent months of the employment period, is the same. This is 12 calendar months prior to dismissal. Moreover, if you fire an employee on the last day of the month (that is, this is the last day of work for an employee), then this month is included in the billing period. If the dismissal is made on any other day of the month, then the settlement period is 12 calendar months before the month in which the employee was dismissed. Art. 139 of the Labor Code of the Russian Federation; p. 4 of the Regulations, approved. Government Decree of December 24, 2007 No. 922 (hereinafter - the Regulation).
The calculation of payments upon dismissal is not affected in any way by the system of remuneration used in the organization: salary, piecework, based on hourly, daily or monthly tariff rates.
Under normal working hours accounting, payment is due for working days for the months after dismissal on a five-day or six-day basis. working week, depending on the mode of operation of the organization, falling on the paid period, that is, for a specific month after dismissal clause 9 of the Regulations... In this case, the severance pay paid on the day of dismissal must be calculated for working days falling on the first month after the day of dismissal.
To calculate the severance pay (earnings for the period of employment), the average monthly earnings in this case can be calculated using the formula e
If you change your place of work, it is very important that there is a full settlement between you and the employer. financial resources that you were entitled to. And that is why, it is very important to know your labor rights in order to prevent their violation. We will talk about this right now.
Features of dismissal and payments
Dismissal is the termination of work under an employment contract. It is made on the grounds that are provided for in Chapter 13 of the Labor Code of the Russian Federation. The day of dismissal is the last day of the employee's work. Regardless of the reason for dismissal, the employer must always make full payments to employees. The procedure and conditions for payment of compensation and severance pay is specified in the Labor Code of the Russian Federation. According to its provisions, upon dismissal, an employee must receive:
· Salary for actually worked time in the current month;
· Compensation for unused vacation (all days of vacation for different years);
· Severance pay, the amount of which is determined by law.
As a rule, salaries to dismissed persons are paid no later than the day of dismissal (in accordance with Article 140 of the Labor Code of the Russian Federation). If the person did not work on the last working day, then the money is paid no later than the day following after the latter submits a demand for final settlement.
Basic payments
So, let's talk in more detail about what payments are made by the employer upon termination. The first is the salary for the hours actually worked during the month the employee quit. It includes all available allowances, bonuses and surcharges.
According to article 127 of the Labor Code of the Russian Federation, an employee upon dismissal is also entitled to monetary compensation accrued for unused vacation. In this case, the employee can submit a written statement that unused vacations can be provided to him along with the dismissal. This does not apply to cases of dismissal on the basis of guilty actions - in this case, the last day of the vacation is considered the day of dismissal. All amounts due to the employee are paid before he goes on vacation.
If the leave for the current year was provided to the employee as an advance, and the year at the time of dismissal has not fully worked, then the amount of average earnings for the days not worked is subject to withholding. However, retention is not carried out in the following situations:
· Termination of activity or liquidation;
· Reduction in the number of employees;
· Inadequacy of the employee for the position or duties for health reasons;
· Change of the owner of the company's property;
· Conscription of an employee for military service or assignment to alternative service;
Reinstatement of an employee in the workplace who previously performed his duties by a court decision or state inspection labor;
· Recognition of the employee as completely incapacitated;
· Death of the employer or employee;
The onset of extraordinary circumstances that prevent the continuation of labor relations.
With regard to severance pay, upon dismissal, the average monthly wage is paid. Also, for the period of employment, the employee retains the right to receive an average monthly salary, but not more than 2 months from the date of dismissal.
Severance pay is paid regardless of the subsequent employment of employees in the presence of circumstances provided for by the Labor Code of the Russian Federation. As for the average wage, it can be retained for a dismissed employee only if he does not get a job. new job... So if you want to be paid average monthly salary for the period of employment for the second month, you need to confirm that you did not work at this time. To do this, you will need to submit a work book.
This information will help you get all your termination payments.
According to the provisions of article 115 of the Labor Code Russian Federation the employer must provide the employee with an annual basic paid leave of 28 calendar days. Certain categories of workers are granted extended basic leave (i.e., more than 28 days). V Labor Code there are also cases when the replacement of unused vacation days is prohibited. Let's consider this issue in more detail.
According to the provisions of the normative acts that establish the norms labor law, unused vacation days can be replaced with monetary compensation in the following cases:
at the request of the employee - a part of the annual paid leave exceeding 28 calendar days ();
persons employed in harmful and hazardous working conditions (Article 117 of the Labor Code of the Russian Federation);
workers with irregular working hours (Article 119 of the Labor Code of the Russian Federation);
employees working in the Far North and equivalent areas ();
athletes and coaches (Article 348.10 of the Labor Code of the Russian Federation);
persons working in representative offices of the Russian Federation abroad (Article 339 of the Labor Code of the Russian Federation);
honey. employees (Article 350 of the Labor Code of the Russian Federation);
employees who are guaranteed such leave federal laws(part 1 of article 116 of the Labor Code of the Russian Federation).
The following persons are entitled to extended leave:
groups of persons defined by federal laws (part 2 of article 115 of the Labor Code of the Russian Federation).
It is worth remembering that for certain categories of workers, the replacement of annual paid compensation with monetary compensation is not allowed. These workers include:
persons under the age of 18 (part 3 of article 126);
pregnant women (part 3 of article 126 of the Labor Code of the Russian Federation);
employees customs authorities(Clause 2, Article 35 of Law No. 114-FZ);
police officers (part 3 of article 45 of the Regulations approved by the Decree of the RF Armed Forces of December 23, 1992 N 4202-1 "On approval of the Regulations on service in the internal affairs bodies of the Russian Federation and the text of the Oath of an employee of the internal affairs bodies of the Russian Federation").
employees of drug control authorities (clause 105 of the Regulation approved by the Decree of the President of the Russian Federation of 05.06.2003 N 613 "On law enforcement service in the bodies for control over circulation drugs and psychotropic substances ");
persons employed in work with harmful and / or dangerous conditions labor. Exceptions are payments of monetary compensation for unused leave upon dismissal, as well as for a part of the annual additional paid leave exceeding its minimum duration - seven calendar days (part 3 of article 126 and part 2, 4 of article 117 of the Labor Code of the Russian Federation);
workers exposed to radiation from the Chernobyl disaster.
Note: In accordance with Part 2 of Art. 122 of the Labor Code of the Russian Federation, the right to use leave for the first year of work arises from the employee after 6 months of his continuous work. By agreement of the parties, paid leave may be granted to an employee even before the expiration of 6 months.
An employee is entitled to additional leave for work in harmful conditions if he actually worked in such conditions for at least 11 months in a working year (paragraph 2, clause 8 of Instruction N 273 / P-20). If he has worked less than this period, then additional leave is provided to him in proportion to the time worked in such conditions (clause 9 of Instruction N 273 / P-20, Letter of Rostrud dated 18.03.2008 N 657-6-0);
Additional leave for work in irregular working hours does not depend on the length of time worked in the working year under conditions of irregular working hours (Letter of Rostrud dated 05.24.2012 N PG / 3841-6-1);
Registration of monetary compensation for vacation
To pay monetary compensation for vacation, the employer must perform the following sequence of actions:
receive a written statement from the employee;
issue an order;
enter information on the replacement of part of the vacation in the employee's personal card and the vacation schedule.
Note: Study leave is not related to annual paid leave, but is considered an additional targeted leave associated with training (Art. 173-176 of the Labor Code of the Russian Federation). Therefore, the employer does not have the right to replace the employee's study leave with monetary compensation (Letter of the Federal Tax Service for Moscow dated December 27, 2006 N 20-12 / 115069).
Payment of monetary compensation for unused leave upon dismissal
In accordance with Part 1 of Art. 127 of the Labor Code of the Russian Federation upon dismissal, the employee is paid monetary compensation for all unused vacation days. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day.
Upon dismissal, full monetary compensation is received by employees who have worked for the employer for at least 11 months, or employees who have worked for more than 5.5 months and dismissed on one of the following grounds:
liquidation of an enterprise;
staff reduction;
transfer to another job at the suggestion of labor authorities;
admission to active military service;
reorganization or temporary suspension of work;
sending in the prescribed manner to universities, technical schools (or to preparatory courses of these educational institutions);
unsuitability for work.
In other cases, compensation is paid in proportion to the hours worked.
Note. In accordance with Art. 291, 295 of the Labor Code of the Russian Federation to employees hired for a period of up to 2 months, or employed in seasonal work, monetary compensation upon dismissal is paid at the rate of two working days per month of work.
When calculating the number of days of unused vacation, the length of service includes:
actual work time;
the time when the employee did not actually work, but for him in accordance with labor legislation and other acts containing labor law norms, collective bargaining agreements, agreements, local regulations, the employment contract retained the place of work, including the time of annual paid leave, non-working holidays, days off and other days of rest provided to the employee;
time of forced absenteeism illegal dismissal or suspension from work and subsequent reinstatement at the previous job;
the time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year;
the period of suspension from work of an employee who has not passed the mandatory medical checkup through no fault of their own.
The length of service does not include:
time of absence of an employee at work without good reason, including as a result of his suspension from work in the cases provided for;
parental leave until the child reaches the legal age.
Note: In accordance with Art. 121 of the Labor Code of the Russian Federation, the vacation time without pay, not exceeding 14 calendar days during the working year, is included in the vacation experience.
The total amount of compensation for unused vacation is paid based on average earnings. In accordance with Art. 139 of the Labor Code of the Russian Federation, the average daily earnings for paying compensation for unused vacations are calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and by 29.3 (the average monthly number of calendar days).
About Pull & Bear brand Polon Bir official
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