Replacement of annual paid leave with monetary compensation. We replace vacation with compensation. Replacement of vacation with monetary compensation
The fact that when an employee is fired for unspent vacation days, he is entitled to monetary compensation, probably every accountant knows. Is it possible to pay compensation to a working employee who has not taken all the vacation days prescribed for the year? provides such an opportunity, but in strictly limited cases. In addition, for you as an employer, replacing vacation with employee compensation is a right, not an obligation. That is, if you wish, you can refuse the employee to pay money instead of vacation. And if you still agree to such a replacement, read the article for details on how to properly arrange it.
Note.Vacation replacement monetary compensation- this is the employer's right, not his duty.
Who cannot replace vacation with monetary compensation
The employee asks you to replace the vacation with cash compensation. And before satisfying his request, you should make sure that the employee is not among the persons for whom you cannot replace the vacation with money. The list of such persons is provided for by part 3 of article 126 of the Tax Code of the Russian Federation. These include:
Pregnant women;
Employees under the age of 18;
Workers exposed to radiation as a result of the disaster at Chernobyl nuclear power plant(see also the letter of the Ministry of Labor of Russia dated 03.26.2014 N 13-7 / B-234);
Workers engaged in work with harmful and (or) hazardous working conditions. Here, however, there is an exception.
So, you can replace with monetary compensation a part of the annual additional paid leave for Chernobyl victims, exceeding its minimum duration - 7 calendar days(parts 2 and 4).
Accordingly, if your employee does not fit into any of the specified categories of persons, then you can replace his vacation with monetary compensation.
How many vacation days can be replaced
There is no legal limit on the number of vacation days that can be replaced with compensation. However, you also do not have the right to replace the entire vacation of the employee with monetary compensation.
The provisions of Part 1 of Article 126 of the Labor Code of the Russian Federation allow to pay compensation only for that part of the vacation that exceeds 28 calendar days.
Consequently, your workers can only be eligible for replacement if you provide them with an extended core or additional leave(Articles 115 and 116 of the Labor Code of the Russian Federation). The table on p. 28 we have cited the categories of workers who are legally entitled to extended main and additional holidays.
The list of employees who are obligatorily granted extended main or additional leave
Grounds for granting leave | Minimum vacation time |
|
Extended main leave |
||
Employees under the age of 18 | Art. 267 of the Labor Code of the Russian Federation | 31 calendar days |
Working disabled people (regardless of the disability group) | Art. 23 Federal law dated 24.11.95 N 181-FZ | 30 calendar days |
Additional vacation |
||
Workers engaged in work with harmful and (or) dangerous working conditions | Art. 117 of the Labor Code of the Russian Federation | 7 calendar days |
Workers with a special nature of work | Art. 118 of the Labor Code of the Russian Federation | The term is determined by decrees of the Government of the Russian Federation |
Workers with irregular working hours | Art. 119 of the Labor Code of the Russian Federation | 3 calendar days |
Workers working in the Far North (including part-time jobs) | Art. 321 of the Labor Code of the Russian Federation | 24 calendar days (16 calendar days - for areas equated to the regions of the Far North) |
Workers exposed to radiation from nuclear tests at the Semipalatinsk test site | P. 15 Art. 2 of the Federal Law of 10.01.2002 N 2-FZ | 14 calendar days |
Workers exposed to radiation from the Chernobyl disaster | Item 5, Art. 14 of the Law of the Russian Federation of 05.15.91 N 1244-1 | 14 calendar days |
But even if your employees do not fall under the specified list, you can set additional leave for them yourself (part 2 of article 116 of the Labor Code of the Russian Federation). In this case, be sure to write it down in the collective agreement or other local normative act the procedure and conditions for granting such leave.
Note.The employer has the right to grant additional vacations to employees at his own discretion.
If in one working year the employee did not take part of the leave of 28 calendar days and transferred them to the next year, he cannot replace these days with compensation. Only vacation days exceeding 28 calendar days of the main vacation of each year are subject to monetary replacement.
Example 1. M.E. Sobolev has been working at AvtoLombard LLC since May 14, 2012. According to the employment contract, he is entitled to paid leave of 28 calendar days for each working year. In the first working year (from 05/14/2012 to 05/13/2013), he used 21 calendar days of vacation. In the second working year (from 05/14/2013 to 05/13/2014) - 26 calendar days. In two working years, out of 56 calendar days (28 calendar days + 28 calendar days), he used only 47 days. 9 calendar days remained unused. Can he replace these unused days with monetary compensation? No, in this case, the employee does not have the right to replace part of the vacation with monetary compensation. Since the duration of his annual paid leave is only 28 calendar days. And only days exceeding the specified limit for each year of work are subject to replacement.
How to arrange for the replacement of vacation with monetary compensation
To replace part of the vacation with monetary compensation, you need:
Receive an application from the employee with a corresponding request;
Issue an order;
Enter a record on the replacement of vacation with compensation in the employee's personal card;
Enter information about the replacement of vacation in the vacation schedule.
Let's consider these steps in more detail.
Step 1. Employee application. The replacement of vacation with monetary compensation is made at the request of the employee, which he reflects in his application. It should be written in the name of the head of the company ( individual entrepreneur). The legislation does not establish the form of such a statement, therefore the employee can draw it up in any form.
Step 2. Order of the employer. If you agree to replace part of the employee's vacation with monetary compensation, you must issue an appropriate order.
There is also no unified form for such an order. Therefore, compose it in any form. Indicate in it the full name and position of the employee, the number of days of the billing period and vacation to be replaced with monetary compensation. Also reflect the reason for the publication of this order - the details of the employee's application.
Step 3. Personal card of the employee. After issuing the order, information on replacing part of the paid leave with monetary compensation must be reflected in the employee's personal card. This information is reflected in section VIII "Vacation".
Step 4. Vacation schedule. You should also reflect the information about replacing part of the vacation with monetary compensation in the vacation schedule. To do this, make an entry in column 10 "Note". Be sure to indicate the number of vacation days to be replaced and the details of the order. The entry in column 10 of the vacation schedule may be as follows: "Part of the additional paid vacation in the amount of 4 (four) calendar days has been replaced with monetary compensation on the basis of order No. 136-ls dated July 29, 2014".
How to calculate compensation
To determine the amount of cash compensation to be paid to an employee, you need to multiply the average daily earnings by the number of days replaced by compensation.
Note.The amount of monetary compensation paid in exchange for vacation is calculated based on the employee's average daily earnings.
Average daily earnings in this case are calculated according to the rules for calculating vacation pay. They are established by article and paragraph 10 of the Regulation on the specifics of the procedure for calculating the average wages(approved by Decree of the Government of the Russian Federation of 12.24.2007 N 922).
So, if the employee has worked in full for the billing period, you should divide the actual amount of the employee's wages for this billing period by 12 and by 29.3 (the average monthly number of calendar days).
If one or several months of the billing period are not fully worked or there were excluded periods in it, then the average daily earnings are calculated as follows. First, determine the number of calendar days in fully worked calendar months:
KDMP = KMP x 29.3,
where KDMP is the number of calendar days in fully worked months of the billing period;
KMP - the number of months fully worked;
29.3 is the average monthly number of calendar days.
KDMN = 29.3: KKDMN x CODE,
where KDMN is the number of calendar days in a month that is not fully worked out;
ККДМН - the number of calendar days of the month that has not been fully worked out;
CODE - the number of calendar days worked in a given month.
If there are several months not fully worked, then the number of calendar days must be determined for each of them. And then add up the results.
Then calculate the total number of calendar days taken into account when determining the average earnings:
KKD = KDMP + KDMN,
where KKD is the number of calendar days taken into account when calculating the average earnings.
Finally, determine your average daily earnings:
SZ = SV: KKD,
where SZ is the average daily earnings;
SV - the amount of payments accrued to the employee in the billing period.
Example 2. An employee of LLC "AvtoLombard" O.V. Simonova, according to the employment contract, is entitled to an additional vacation in the amount of 4 calendar days. She applied to the employer to replace this part of the leave with monetary compensation. The settlement period is from August 1, 2013 to July 31, 2014. From April 1 to April 28, 2014, O.V. Simonova was in next vacation 28 calendar days. And in January 2014, the employee was ill for 10 days. The remaining months of the billing period have been fully worked out.
Over the past 12 calendar months, payments to the employee amounted to 420,500 rubles, of which vacation pay - 29,800 rubles. and payments for sick leave - 9,200 rubles. We will calculate the amount of compensation that is due to the employee.
First, let's determine the number of calendar days in fully worked months. It is 234 days. (8 months x 29.3 days). Now let's calculate the number of days in months that are not fully worked. For January 2014 it is equal to 19.85 days. (29.3 days: 31 days x 21 days), for April 2014 - 1.95 days (29.3 days: 30 days x 2 days). Total amount days in the months not fully worked out amounted to 21.8 days. (19.85 days + 1.95 days).
The number of calendar days taken into account when calculating the average earnings is 255.8 days. (234 days + 21.8 days). Payments taken into account do not include average earnings maintained while on vacation and temporary disability benefits. Therefore, vacation pay should be calculated on the basis of 381,500 rubles. (420,500 rubles - 29,800 rubles - 9,200 rubles). The average daily earnings for calculating compensation will be 1,491.4 rubles. (381,500 rubles: 255.8 days). The amount of compensation to be paid O.V. Simonova, will amount to 5965.6 rubles. (1264.04 rubles x 4 days).
Note that the labor legislation does not define the period in which you must pay the employee compensation in exchange for vacation. But we recommend that you do this on the next day set for the payment of wages.
Note. FAQ
Is it possible to substitute monetary compensation for study leave?
No. Labor legislation allows replacing with monetary compensation only a part of the annual paid leave (Articles 126 and 127 of the Labor Code of the Russian Federation). And your employee's study leave is not related to paid annual leave. It is considered an additional targeted leave associated with training (Art. 173-176 of the Labor Code of the Russian Federation).
What will happen to us if we replace the employee's vacation with money, which does not exceed 28 calendar days?
In this case, you may be held liable under article 5.27 of the Code of Administrative Offenses of the Russian Federation for violation of labor laws. The head of the company faces a fine in the amount of 1,000 to 5,000 rubles. For a repeated violation, he can be disqualified for a period of one to three years. And an organization can be fined in the amount of 30,000 to 50,000 rubles, and an entrepreneur - from 1,000 to 5,000 rubles. Instead of a fine, the organization and the merchant may face suspension of activities for up to 90 days. True, this violation can be detected only if Labour Inspectorate will come to you with a check.
What taxes and contributions should be charged on the compensation paid
By general rule the compensation paid in return for vacation is the employee's income. In the list of payments that are not subject to personal income tax, it is not named (Article 217 of the Tax Code of the Russian Federation). Accordingly, you need to calculate, withhold and transfer personal income tax to the budget from its amount. About this - the letter of the Federal Tax Service of Russia dated 03.13.2006 N 04-1-03 / 133. Personal income tax should be paid to the budget on the day the money is received from the bank for the payment of compensation or on the day it is transferred to the employee's bank account.
Also, the amount of compensation paid to the employee is subject to contributions to the Pension Fund of the Russian Federation, FSS and FFOMS. This is directly provided for by subparagraph "and" of paragraph 2 of part 1 of article 9 of the Federal Law of July 24, 2009 N 212-FZ and paragraph 13 of subparagraph 2 of paragraph 1 of Article 20.2 of the Federal Law of 24.07.98 No. 125-FZ. This conclusion is also confirmed by the regulatory authorities (letter from the Federal Security Service of the Russian Federation of 11/17/2011 N 14-03-11 / 08-13985).
The law prohibits working without vacation, receiving a cash equivalent instead of once a year of rest. But this does not mean that there are options for how to get compensation for unused vacation, No. They not only exist, but are quite legal and can be used in situations permitted by law.
Under what conditions will vacation compensation be paid
Any employee is entitled to annual paid leave (Article 114 of the Labor Code of the Russian Federation). The duration of the main vacation is 28 calendar days. There is also an additional vacation that is provided:
- in the conditions of the Far North and regions equated to them;
- in harmful and dangerous working conditions;
- in special conditions, with irregular working hours, etc.
If there are doubts about whether it is possible to receive compensation for unused vacation, then referring to the Labor Code, you can understand that the answer is unequivocally affirmative.
An equivalent for not taken rest can be assigned if:
- the employee quits;
- the rest allowed for him exceeds 28 calendar days (Article 126 of the Labor Code of the Russian Federation).
Upon resignation, an employee has the right to receive benefits for all days of rest earned. The amount of compensation is calculated based on the number of vacation days and the average earnings for the last year.
The second case in which reimbursement is possible is a vacation of more than 28 days. Then for all additional days or part of them, the cash equivalent is charged. For example, if you are entitled to a vacation of 34 days, then you need to use 28 of them for vacation, and get compensation for the remaining 6 days.
However, the law does not oblige the employer to strictly follow this rule. The employer has the right not to pay for additional vacation days, but to demand their use for rest.
Please note! The rule does not apply to pregnant women, workers under 18 years of age, workers employed in hazardous and hazardous industries. They must use the additional leave for the intended purpose.
Why is the transfer of vacation allowed?
The legislator stipulated the occurrence of situations during rest, when the annual vacation should be interrupted or provided at a different time. Such cases are:
- transfer of vacation due to sick leave;
- the need to fulfill public duties, for the time of which exemption from work is granted by law;
- in other cases.
Failure to pay vacation pay, notice of the granting of vacation less than 14 days before its start also become the basis for transferring the vacation to another period agreed with the employee.
If manufacturing process requires the presence of an employee and his leave on vacation paralyzes the activities of the organization; with the employee's consent, the vacation is also postponed to another period of time. Moreover, it must be used during the year following the year of provision. That is, work for 2 years without vacation is permissible.
Therefore, if you need to find out whether it is allowed to replace the vacation with monetary compensation if it is postponed, remember that in this case the legislator says “no” (Article 124 of the Labor Code of the Russian Federation).
Employees who are less than 18 years old, as well as those employed in hazardous and hazardous industries, must be granted leave annually, transfers are not allowed.
Taking leave before dismissal
According to article 127 of the Labor Code of the Russian Federation, when intending to terminate the contract, an employee can take the leave due to him from subsequent dismissal on on their own... They write a statement indicating the date of dismissal, which should be the last day of the vacation. If the term has expired employment contract, the employee has the right to use before dismissal due vacation and the date of termination of the contract will also be the last day of the vacation.
This date may not coincide with the previously set expiration date of the employment contract. If the leave is taken by an employee who wrote a letter of resignation of his own free will, he has the right to change his mind, pick up the letter of resignation before the start of the vacation. If another employee is accepted in his place, then the withdrawal of the application for dismissal is not allowed (Article 127 of the Labor Code of the Russian Federation).
How to get cash coverage
As mentioned above, if the employee is not sure whether it is possible to replace the vacation with monetary compensation in 2020, it is worth asking for an explanation to the article of the law. The rule stipulates that compensation is paid only upon dismissal, for all the prescribed vacation days, or if non-basic days are not used. To get it, you need to do the following:
- Submit a freeform application. If there is special form form - on the form. The “head” of the application indicates the position of the person who will endorse the application and his full name. Next, the name of the applicant is indicated.
- The name of the document is “application”.
- Directly text representing a request to replace vacation days cash equivalent... Indicate the circumstances under which additional leave was given, its duration and refer to Article 126 of the Labor Code of the Russian Federation on the right to receive compensation.
- Date and handwritten signature.
After 10 days or on the date of the next issue of wages accepted at the enterprise, the payment must be issued to the applicant. The main vacation is not allowed to substitute compensation. This is a violation of the law and the guilty person is brought to administrative responsibility in the form of a large fine. The dilemma of whether it is possible to take compensation for unused vacation, if it is not the main one, without imposing a penalty on the employer, suggests the answer: yes, you can.
Watch the video about compensation for leave before dismissal:
Upon dismissal, the employee is required to pay compensation for all days of vacation. If it has not been provided for two years, then for two years.
If an employee does not have the right to receive additional leave, then he does not have the right to compensation for vacation days, for example, not used for 2 years and, accordingly, doubled.
How to take a vacation not all at once
According to the Labor Code of the Russian Federation, the division of leave into parts is possible upon agreement with the employer. At the same time, one of the parts must not be less than 14 calendar days (Article 125 of the Labor Code of the Russian Federation). The rest of the days can be taken in any proportion. In particular, twice for 7 days, twice for 5 days and 4 days, and so on.
The specialist answers questions in the comments to the article
We all know that paid annual leave or part of it can be replaced by monetary compensation. Meanwhile, not everything is so simple - sometimes the employer is simply obliged to refuse the employee to pay compensation, and sometimes he does not even need the employee's statement. After reading the article, you will find out in which cases vacation can be replaced with compensation, for which workers such a replacement cannot be made, how to document the replacement of part of the vacation with monetary compensation, how to calculate compensation for unused vacation upon dismissal.
The Labor Code provides for two cases of replacing leave with monetary compensation:
- Art. 126 establishes that the part of the annual paid leave exceeding 28 calendar days, upon written application of the employee, can be replaced with monetary compensation;
- Art. 127 determines that upon dismissal, the employee is paid monetary compensation for all unused vacations.
Compensation for part of the vacation during work
So, consider the first option for replacing vacation with monetary compensation - in accordance with Art. 126 of the Labor Code of the Russian Federation.On the basis of this article, employees who are entitled to extended vacations (teachers ( Art. 334 of the Labor Code of the Russian Federation), disabled people ( Art. 23 of Law no. 181-FZ), minors, etc.) or additional vacations (for irregular working hours ( Art. 119 of the Labor Code of the Russian Federation), harmful or dangerous working conditions ( Art. 117 of the Labor Code of the Russian Federation), work in the regions of the Far North and equivalent areas ( Art. 321 of the Labor Code of the Russian Federation), athletes and coaches ( Art. 348.10 of the Labor Code of the Russian Federation), medical workers ( Art. 350 of the Labor Code of the Russian Federation)).
First of all, we note that this provision gives the employer the right, but does not oblige him to pay such compensation to the employee. That is, the employer can refuse the employee and grant him full leave.
A prerequisite for the payment of compensation is the employee's application. Thus, the Astrakhan regional court changed the decision of the district court, which recovered compensation from the employer for a part of the leave that exceeded its normal duration. In particular, the regional court indicated that for the employer to have the obligation to pay the employee monetary compensation instead of unused leave in excess of the normal duration, the employee must apply to the employer with a statement of the appropriate content. As established by the court, the employee did not apply with such a statement, and his appeal to the court for payment of monetary compensation instead of providing the actual vacation cannot replace his appeal to the employer with a corresponding statement. Thus, the employer did not have an obligation to pay monetary compensation ( The appeal ruling of the Astrakhan Regional Court dated 12.12.2012 in case No. 33‑3535/2012 ).
But even if the employer agrees to replace part of the vacation with compensation, he must refuse to employees of some categories. So, according to h. 3 tbsp. 126 of the Labor Code of the Russian Federation it is not allowed to substitute monetary compensation for the main annual paid leave and annual additional paid leaves:
- pregnant women;
- employees under the age of 18.
The annual additional paid leave granted to the employee on the basis of Clause 5 of Art. fourteenRF Law of 15.05.1991 No. 1244-1 "O social protection citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant ", due to the fact that this law does not provide for the possibility of such compensation ( Letter of the Ministry of Labor of the Russian Federation dated 03.26.2014 No.13-7 / B-234).
In addition, additional paid leave for work in harmful or dangerous conditions cannot be substituted. However, the following should be considered. By virtue of h. 2 tbsp. 117 of the Labor Code of the Russian Federation the minimum duration of additional annual paid leave for employees working in such conditions is 7 calendar days. Meanwhile, if the employee is entitled to leave of a longer duration, for example 10 days, then by virtue of h. 4 tbsp. 117 of the Labor Code of the Russian Federation on the basis of a sectoral (intersectoral) agreement and collective agreements, as well as the written consent of the employee, drawn up by concluding a separate agreement to the employment contract, the part of the annual additional paid leave exceeding 7 days can be replaced by a separately established monetary compensation in the manner, in the amount and by conditions that are determined by the sectoral (intersectoral) agreement and collective agreements. That is, in our example, an employee can count on compensation for 3 days of additional leave for work in harmful or dangerous conditions.
Suppose an employee did not take leave for the previous period, but this year he decided to take 56 vacation days at once. At the same time, he wrote a statement with a request to replace part of the leave exceeding 28 days with monetary compensation. The question arises: is it possible to compensate for something at all, and if so, how much? And the answer is contained in h. 2 tbsp. 126 of the Labor Code of the Russian Federation: when summing up annual paid leave or transferring annual paid leave to the next working year, monetary compensation may replace a part of each annual paid leave exceeding 28 calendar days, or any number of days from this part... Consequently, in the example under consideration, the employee is not entitled to payment of monetary compensation, the employer is obliged to provide 56 calendar days annual leave.
Consider another situation that deserves attention. If an employee is entitled to an extended vacation (for example, 42 calendar days as teacher), can he count on compensation? On the one hand, extended leave is the same guarantee for certain categories of workers as 28 days for everyone else. And the courts say that the law does not provide for the replacement of the main annual paid leave with monetary compensation (see, for example, Determination of the Moscow City Court dated December 26, 2011 No. 33‑41006 ). On the other side, Art. 126 of the Labor Code of the Russian Federation allows you to replace a part of the annual leave with compensation in excess of 28 calendar days. Of course, “basic paid vacation” and “annual paid vacation” are different concepts, because the latter consists of basic and other types of vacations. And if we proceed from the terminology, then the employer has no right to replace 14 days (42 - 28) of vacation. But since until now there are no explanations of officials on this issue, a practice has developed in which employers satisfy the employee's request and compensate in cash for part of the extended vacation exceeding 28 days.
For clarity, here is an example of calculating the number of days to be compensated.
I. I. Ivanov works as a packer cosmetics from 15.09.2012. He is entitled to 30 calendar days of basic paid leave as a disabled person of the III group. In the first working year, he used 20 days of vacation, in the second - 21 days. How many vacation days can he replace with monetary compensation?
For two full years of work, I.I.Ivanov is entitled to 60 calendar days of vacation, but he used only 41 days (20 + 21). Meanwhile, I.I. Ivanov has the right to replace with compensation only part of the leave exceeding 28 days ( Art. 126 of the Labor Code of the Russian Federation). That is, he can apply to the employer with an application for compensation for 4 days of vacation (2 days for each year of work), and the remaining 15 days of vacation (28 + 28 - 41) he will have to take a walk.
We will briefly tell you about the registration of the payment of compensation. In order for a part of the leave to be replaced by an employee with compensation, he must apply to the employer with a corresponding statement. The employer, on the basis of such a statement and when deciding on the payment of compensation:
1... Issues an order which might look like this (see sample on page).
With regard to the calculation of compensation, let's say the following. Monetary compensation for a part of vacation that exceeds 28 calendar days is determined by multiplying the average daily earnings, calculated according to the rules for calculating vacation pay, by the number of days replaced by compensation.
Society with limited liability"Winter"
"LLC" Winter ")
About replacing part of the vacation with monetary compensation
In accordance with Art. 126 of the Labor Code of the Russian Federation
I ORDER:
Replace with monetary compensation a part of the annual paid leave provided for the period of work from 09/15/2013 to 09/14/2014, exceeding 28 calendar days in the amount of 2 days to the packer Ivan Ivanovich Ivanov.
Reason: statement by I.I. Ivanov dated 11.11.2014.
Director Tsarev P. P. Tsarev
2. Enters information into a personal card (for an example, see below) and a vacation schedule (column 10 "Note" is filled in).
VIII... VACATION
| Vacation type (annual, educational, unpaid, etc.) | Work period | Number of calendar days of vacation | date | Base | ||
| with | on | start | endings | |||
| 1 | 2 | 3 | 4 | 5 | 6 | 7 |
| Annual main | 15.09.2013 | 14.09.2014 | 28 | 01.10.2014 | 28.10.2014 | Order from |
| paid | 24.09.2014 | |||||
| № 20 | ||||||
| Annual main | 15.09.2013 | 14.09.2014 | 2 | Replacement | leave | Order from |
| paid | monetary | compensation | 13.11.2014 | |||
| № 25 | ||||||
Based Art. 139 of the Labor Code of the Russian Federation and Provisions on the specifics of the procedure for calculating average wages approved Decree of the Government of the Russian Federation of December 24, 2007 No. 922 , the average daily earnings for paying for vacations and 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).
Let's use the conditions of example 1. I. I. Ivanov is supposed to compensate for 2 days of vacation. I. I. Ivanov's salary is 20,000 rubles, the calculation period has been fully worked out.
The settlement period is from 01.11.2013 to 31.10.2014.
The average daily earnings of I. I. Ivanov will be 682.59 rubles. ((20,000 rubles x 12 months) / 12 months / 29.3). Compensation for a part of the vacation exceeding 28 calendar days will be equal to 1,365.18 rubles. (682.59 rubles x 2 days).
Dismissal compensation
We repeat that upon dismissal, all unused vacations are subject to compensation ( h. 1 tbsp. 127 of the Labor Code of the Russian Federation).Before calculating the number of vacation days to be compensated, and, accordingly, the amount of compensation, it is worth remembering that all unused vacation can be granted to an employee with subsequent dismissal (except in cases of dismissal for guilty actions). In this case, the last day of vacation is considered the day of dismissal. But keep in mind that the employee must write a statement with a corresponding request, and the employer should not mind the employee taking leave.
For your information
There is no obligation for the employer to provide leave with subsequent dismissal, even if the employee asked for it in writing.
Some employers, when considering an application for a vacation with subsequent dismissal from an employee working under a fixed-term employment contract, immediately refuse, because they are afraid that fixed-term contract is transformed into an indefinite one: the vacation will go beyond the expiration of the contract and then it will be impossible to dismiss the employee ... This opinion is erroneous. Part 3 of Art. 127 of the Labor Code of the Russian Federation determines that upon dismissal due to the expiration of the term of the employment contract, leave with subsequent dismissal may be granted even when the vacation time in whole or in part exceeds the term of this contract. In this case, the last day of the vacation is also considered the day of dismissal.... However, on the last working day on which the employer must issue work book, make the final settlement with the employee and perform other actions related to dismissal, will be the last working day before the start of the vacation.
That is why, when granting leave with subsequent dismissal upon termination of the employment contract at the initiative of the employee, the latter has the right to withdraw his letter of dismissal before the day of the start of the vacation, unless another employee is invited in his place by way of transfer.
If the employee has not expressed a desire to use leave with subsequent dismissal or the employer is against, we proceed to counting the days to be compensated.
How to determine the number of days of unused vacation? Labor Code does not establish the order in which they are counted. Therefore, employers still focus on Rules for regular and additional vacations approved NKT of the USSR 04/30/1930 No. 169 (act in part that does not contradict the Labor Code of the Russian Federation), and clarifications of the Ministry of Labor.
So, according to p. 28 of these Of the Rules employees who are dismissed for whatever reason, who have worked for this employer for at least 11 months, subject to offset in the period of work that gives the right to leave, receive full compensation. According to this rule, if an employee, for example, worked for a year and 11 months and did not use his vacation, he is entitled to compensation for 56 calendar days (28 days for the first year of work and 28 for the second).
Full compensation (that is, for 28 days) is also received by employees who have worked from 5.5 to 11 months, if they leave due to:
- liquidation of an organization or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work;
- admission to active military service.
Note!
To determine the number of days to be compensated upon dismissal of an employee, a working year is taken, which is different for each employee and begins to run from the date of employment, and not a calendar year.
In all other cases, workers receive proportionate compensation. Thus, those who have worked from 5.5 to 11 months receive proportional compensation if they leave for any other reason other than the above (including of their own free will), as well as all those who have worked less than 5.5 months, regardless of the reasons layoffs.
To calculate, you need to determine how many vacation days an employee is entitled to per month. To do this, divide 28 vacation days by 12 and get 2.33 days per month.
The employee has been working in the organization since 10.03.2011. He was on annual paid leave in 2012 - 21 calendar days, in 2013 - 16, in 2014 - 21. He leaves 07/08/2014. For how many days of unused vacation is he entitled to compensation?
During the period of work:
- from 03/10/2011 to 03/09/2012 - he is entitled to 28 days;
- from 03/10/2012 to 03/09/2013 - 28;
- from 03/10/2013 to 03/09/2014 - 28.
If an employee had resigned in the situation described in the example a little earlier, for example on 06/22/2014, he would have received compensation for fewer days of unused vacation. And that's why. According to Clause 35 of the Rulessurpluses of less than half a month are excluded from the calculation, and surpluses of at least half a month are rounded up to a full month... Thus, it would take 28.99 days (22 + (2.33 x 3 months)) to compensate the quitting employee.
Many will have a difficulty: what to do with the digits after the decimal point? Unfortunately, this issue has not been regulated by the legislator, so rounding is left to the discretion of the employer. However, if there is a desire to make such a decision, it must be borne in mind that rounding here is not done according to the rules of mathematics, but in favor of the employee ( Letter of the Ministry of Health and Social Development of the Russian Federation dated 07.12.2005 No. 4334‑17 ). That is, if the employee, as in our example 3, is entitled to 31.32 days, then the compensation will need to be paid in 32 days.
Note!
Even if an employee has worked for a month or two, he is still entitled to compensation for unused vacation (according to Clause 35 of the Rules, if the employee has worked for more than half a month, then he is already entitled to compensation).
Note that if the labor legislation establishes an extended annual paid leave for an employee (longer leave - for pedagogical and medical professionals, disabled people, etc.), then the calculation of the number of days of unused vacation should be done as follows. For example, a teacher is entitled to 56 calendar days of annual paid leave, and he has worked for 7 months. Then, upon dismissal, he needs to compensate for 32.66 days (56/12 x 7).
When calculating the number of days of unused vacation, it is important to correctly determine the length of time for granting vacation. Why?
According to Art. 121 of the Labor Code of the Russian Federation the length of service, which gives the right to an annual basic paid leave, includes the time:
- actual work;
- when the employee did not actually work, but in accordance with labor legislation he retained his place of work (position), including the time of annual paid leave, non-working holidays, days off and other days of rest provided to the employee;
- forced absenteeism in case of illegal dismissal or suspension from work and subsequent reinstatement at the previous job;
- removal from work of a person who has not passed the mandatory medical checkup through no fault of their own;
- unpaid leave granted at the request of the employee, not exceeding 14 calendar days during the working year.
Example 4
The employee was admitted to the organization on 10/25/2013. In March 2014, he was granted 21 days of unpaid leave. The employee leaves in November 2014, the last working day is the 13th. How many days of unused vacation is compensation due?
The employee's working year, for which he is entitled to annual paid leave, is from 10/25/2013 to 10/24/2014. Since the length of service, which gives the right to vacation, includes only 14 calendar days unpaid leave, the end of the employee's working year will have to be "shifted" by the number of days exceeding 14 - by 7. Thus, the working year will be from 10/25/2013 to 10/31/2014.
From November 1 to November 13, the employee worked for another 13 days, but we do not take them into account, since by virtue of Clause 35 of the Rules surpluses of less than half a month are excluded from the calculation.
Since the employee is entitled to 28 vacation days per working year, this is the amount that is compensated.
Additionally, we note: if the employee did not take such a long "administrative" one, then 30.33 (28 + 2.33) would have to be compensated, since from 10/25/2013 11/13/2014 he worked for a year and 20 days, but, as we know , surpluses of more than half a month are rounded to the nearest full month.
Compensation for part-time workers
Sometimes the question arises of paying compensation for unused vacation to part-time workers. Some of them are not paid compensation at all, and some are paid only if the employee works on an external part-time job (with another employer). Meanwhile, according to Art. 287 of the Labor Code of the Russian Federation guarantees and compensations provided for by labor legislation, collective agreements, agreements and local regulations, part-time workers are provided in full. Therefore, part-time workers have the right to count on compensation for unused leave upon dismissal in the same way as employees at their main place of work, and the type of part-time job (internal or external) does not play a role. This is also stated in Clause 31 of the Rules.Summarize
In conclusion, I would like to say that monetary compensation can be replaced not only by the main unused vacation, but also by an additional one. For example, if during work additional leave for harmful conditions cannot be replaced by monetary compensation, then upon dismissal the employer is obliged to make such a replacement. And remember that payment of dismissal compensation must be made on the last working day of the employee ( Art. 140 of the Labor Code of the Russian Federation). But the terms for payment of compensation for a part of leave exceeding 28 calendar days during work are not established by legislation, therefore we recommend fixing them in the local regulatory act of the organization that establishes the rules for remuneration.Good day! Can a part of the unused vacation for previous years be replaced with monetary compensation if there was no transfer of vacation for the current year?
Is it possible to replace additional leave with monetary compensation?
I work as a nurse in the infectious diseases ward. Can I take a vacation longer than 28 calendar days, replacing monetary compensation?
Do not provide vacation
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June 23, 2017, 12:33 pm, question No. 1676282 Artem, Pavlovsky Posad
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Can I claim to replace my vacation with monetary compensation?
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I have been working as a district doctor for 31 years. I have the right to paid holidays - the main one is 28 days and 14 - additional for 2016. I have the right to replace the vacation with monetary compensation.
08 December 2016, 18:38, question No. 1467468 Larisa Fedorovna, Chelyabinsk
Is it possible to collect money for the additional 7 days to the vacation?
I didn’t go on vacation this year, now they barely let me go on vacation for 14 days from December 16 to 29, so that my material help for this year ... I have such a question, can I take the rest of my vacation next year? And further...
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Is it legal for the employer to refuse to compensate the days of unused vacation with money?
At the moment, I have accumulated 57 days of unused vacation. The employer refuses to compensate for part vacation days money, only allows you to take a walk. Does he have the right to refuse monetary compensation?
September 27, 2016, 17:50, question # 1390126 Maxim Viktorovich, Moscow
Russian Vacation Compensation Law
Is there a law on vacation compensation, if so, which article? thanks for earlier
Only that part of the annual leave that exceeds 28 calendar days can be replaced with monetary compensation. Such an excess is possible if the employee is entitled to additional or extended leave.
In particular, employees are entitled to extended leave. educational organizations preschool, primary, general and secondary education.
Thus, you can only pay compensation to an employee for unused vacation days in excess of 28 "mandatory" days.
Example
In 2014, the organizations of A.S. Glebova has the right to:
The main vacation is 28 calendar days;
Additional vacation for a duration of 3 calendar days.
The total duration of Glebova's annual paid leave in 2014 is 31 calendar days (28 days + 3 days). In 2014, she can, with the consent of the administration, replace a part of the vacation with a duration of 3 calendar days with compensation.
Two Ways to Replace Vacation with Compensation
The first way. Register an employee. Upon dismissal, an employee who did not use his right to leave is entitled to monetary compensation for all unused vacations (Article 127 of the Labor Code of the Russian Federation, clause 28 of the Rules on regular and additional vacations of April 30, 1930, No. 169). When calculating compensation associated with the dismissal of an employee, take into account all his main and additional unused vacations for the entire period of work in the organization (Article 127 of the Labor Code of the Russian Federation). An employee's eligibility for compensation does not depend on the reason for his dismissal. In addition, it does not matter whether the employee will be recruited back to the same organization over time.
Therefore, to pay compensation, you can first fire the employee, and then hire him again (for example, a week later). Neither the Labor Code of the Russian Federation nor tax code The Russian Federation does not require any explanation in this case. The personnel decisions of the organization are its internal affair. However, if necessary, the reason for such actions can be explained as follows: it was not possible to hire someone else instead of the dismissed employee, or the employee changed his mind and decided to return.
Second way. Send an employee on vacation for the weekend until they take off unused vacation days. Only non-working holidays are not included in the number of calendar days of vacation (Article 120 of the Labor Code of the Russian Federation). Thus, periods that fall on weekends are included in the number of calendar days and are paid. Including in the case when an employee asks for leave for two calendar days - Saturday and Sunday. Labor law does not prohibit doing this. The only limitation: at least one part of the split leave must be at least 14 days. The employee can use the remaining days as he pleases. If the administration of the organization does not object, then every week he has the right to use only a few days of vacation from the remaining half. Such a procedure for dividing annual leave into parts is provided for in article 125 of the Labor Code of the Russian Federation.
This method has another option. If an employee goes on vacation for a week or two and at the same time does not plan to use the entire vacation entirely or he has accumulated vacations in previous years, it is more profitable for him to indicate in the application that he takes vacation not from Monday to Sunday, but from Saturday one week to Sunday is different. For example, an employee plans to take a two-week vacation, from February 6 to February 19, 2014. Then, in the application, it is better for him to indicate: "I ask you to provide me with another annual paid leave for the period from 4 to 19 February with a duration of 16 calendar days." In this case, the employee will receive more vacation pay.
It should be remembered that the organization is obliged to provide annual leave to employees (part 1 of article 122 of the Labor Code of the Russian Federation). Vacation can be rescheduled to the next year only by production necessity: if the provision of vacation will adversely affect the work of the organization (part 3 of article 124 of the Labor Code of the Russian Federation). It is forbidden not to provide leave for more than two years in a row (part 4 of article 124 of the Labor Code of the Russian Federation).
Have a question
Is it possible to pay an employee compensation for unused additional leave if the first main paid leave has not yet been granted or has been partially granted. Additional leave is given for working on irregular working hours.
Yes, you can.
The organization has the right to provide the first annual paid leave to the employee in advance (even if he has not completed the prescribed period - six months) (Article 122 of the Labor Code of the Russian Federation). When calculating the total duration of the annual paid leave, additional paid leaves are summed up with the annual basic paid leave (Article 120 of the Labor Code of the Russian Federation). At the same time, the Labor Code of the Russian Federation does not make the possibility of granting additional leave dependent on whether the employee took the main leave or not.
Employees with irregular working hours are obligatorily (according to the law) provided with an additional annual paid leave (Articles 116, 119 of the Labor Code of the Russian Federation). Eligibility extra days rest arises for the employee together with the right to receive basic paid leave (clause 14 of the Regulations on regular and additional vacations dated April 30, 1930, No. 169).
A part of the annual paid leave exceeding 28 calendar days, upon written application of the employee, can be replaced with monetary compensation (Article 126 of the Labor Code of the Russian Federation). Moreover, such a replacement is a right, not an obligation of the organization. In the situation under consideration, this part is actually equal to the duration of the annual additional paid leave for irregular working hours. The organization has the right to pay this amount to the employee in the current working year, including even before the presentation of the first main paid leave.
No compensation
Vacation cannot be replaced with monetary compensation for the following categories of employees:
- for pregnant women - in terms of basic and any types of additional leave;
- employees under the age of 18 - in terms of basic and any types of additional leave;
- employees engaged in heavy work and work with harmful working conditions - in terms of additional leave with a minimum duration of seven calendar days for work in the specified conditions. However, if additional leave for harmful or hazardous working conditions exceeds the minimum duration, that is, it is eight calendar days or more, then the days of excess can be replaced with monetary compensation. In this case, the procedure, size and conditions for such a replacement should be established in the relevant sectoral or intersectoral agreements or in a collective agreement;
- staff customs authorities;
- employees of drug control authorities;
- employees of internal affairs bodies;
- employees of other government agencies, if this is directly established by law (by orders of the relevant government agencies).
Documenting
If the employee decided to replace part of the vacation with monetary compensation, he must write a statement (Article 126 of the Labor Code of the Russian Federation).
Attention!
The main vacation for a working employee cannot be compensated for with money, even if he wants to.
The decision to pay compensation for unused vacation, not related to the dismissal of an employee, is made by the organization's administration. The organization has the right to pay such compensation, but is not obliged (letter of the Ministry of Labor of Russia dated April 25, 2002, No. 966-10).
An application for replacing vacation with monetary compensation may look like this:
Director of "Alpha"
A.V. Lvov
from the cashier
A.V. DezhnevaSTATEMENT
I would like to ask you to replace part of my vacation (three calendar days) in excess of 28 calendar days with monetary compensation.
Dezhneva/ A.V. Dezhneva /
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