Order on payment of compensation for unused vacation. Is it possible to receive compensation for unused vacation upon dismissal after the end of maternity leave? When can vacation be replaced with monetary compensation?

Every employed citizen has the right to receive annual paid leave of 28 calendar days if he has worked at the enterprise for more than six months. But sometimes situations arise when an employee can also receive compensation for unused vacation in the form of financial compensation.

From the article below you will learn:

• how compensation for unused vacation is processed;
• what should be the order for compensation for unused vacation;
• when compensation for unused vacation cannot be received.

Compensation for unused vacation

A company employee can receive compensation for unused annual paid leave in two cases: if they quit or the total amount of leave exceeds 28 calendar days. The second case occurs when an employee did not have time to take vacation for some reason, and it was added to 28 calendar days of vacation for the next reporting period.

Don't miss: the main material of the month from leading specialists of the Ministry of Labor and Rostrud

Encyclopedia of personnel orders from the Personnel System.

If the employer and the personnel service have no objections to the issuance of compensation, the immediate manager of the enterprise issues an order in free form that a certain employee is allowed to receive a financial payment for unused vacation.

As in the case of an application, an order for compensation for unused vacation is issued in free form. This document must necessarily contain the following information:

• the employer's consent to the need to issue compensation;
• personal data of the employee (last name, first name, patronymic, position);
• the reason for issuing the funds;
• the amount of compensation and for what period of vacation it is due;
• the employee responsible for carrying out the order.

The document is signed by the boss and sent for execution to the personnel service and accounting department, where the process of settlement with the employee already takes place.

It should be remembered that the employee must also be familiar with this document. The person is obliged to put his signature on the order itself or in the annex issued to it, and if the employee does not express this consent in documents, then the points written in the form will become invalid.

When can you not receive compensation for unused vacation?

As stated above, material payment as compensation for vacation is only due in a few cases. If an employee has unused rest days, but their number does not exceed 28, then the employee is not entitled to receive compensation for vacation. Also, no payment is made if the end of the reporting year has arrived and the employed citizen does not plan to quit. The remaining days simply roll over to the next year and will be added to the accumulated vacation in the future.

Payment of compensation for vacation is not an obligation, but a right of the employer. For illegal payment of funds to an employee as a material incentive for unused vacation, a legal entity may be fined in the amount of 30,000 rubles, and the general director of the institution - from 1,000 to 5,000 rubles.

Are there any categories of citizens who are not entitled to compensation for unused vacation?

The first paragraph of the article stated that every employed citizen has the right to vacation. Accordingly, if a citizen has several days of unused vacation or their total number is more than 28, then he can receive compensation. This right applies to absolutely all categories of officially employed citizens. Remember that improper registration of an employee for work is a direct violation of the requirements of the law and entails administrative liability.

According to the Labor Code of the Russian Federation, any employed citizen has the right to guaranteed annual paid rest. Its duration is 28 days or more. Under certain circumstances, it is possible to increase its duration. If additional days of rest are not used, the employee can apply for financial compensation. The conditions for its provision are regulated by federal legislation.

What is monetary compensation for unused vacation?

All employed citizens have the right to annual leave, but not every employee uses it fully. Paid vacation days, the number of which exceeds 28, are subject to transfer or financial compensation - at the employee’s choice. The Labor Code of the Russian Federation provides for the possibility of receiving cash payments only in exchange for additional days off.

In case of dismissal of an employee, upon calculation, on the last working day, the employer is obliged to pay him compensation in proportion to the period of time worked in the organization. Payment for the remaining days of rest in cash is carried out upon a written application from the employee. The procedure for paying compensation for unused vacation is regulated by federal regulations and legislative acts.

Who is not entitled to compensation payments?

There are restrictions on the circle of persons who have the right to replace unused vacation periods with cash payments. Article 126 of the Labor Code prohibits the provision of compensation for part of the vacation period:

• main and additional – for pregnant women and employees under 18 years of age;
• additional – for persons working in difficult, harmful, dangerous conditions.

Reasons for taking leave without leave

If an employee has written an application for full annual compulsory rest, but due to certain circumstances it was not possible to use it completely, days arise in return for which you can receive monetary compensation. The reasons for this situation may be:

• illness – receipt of a certificate of temporary incapacity for work, with a maximum duration of 30 days, for the period of which the annual compulsory rest is extended;
• the manager’s decision to recall the employee from leave due to production needs;
• transfer of the vacation period at the initiative of the employee due to valid reasons, for example, the death of a relative;
• the amount of vacation pay for the billing period was incorrectly calculated;
• performance of government duties during the annual holiday that involve release from work.

Legal regulation

Payment of compensation for unused vacation is made at strictly specified times by law. Most of the nuances are regulated by the Labor Code of the Russian Federation:

• Art. 126 – monetary compensation for vacation days exceeding the standard 28;
• Art. 127 – the same, but upon dismissal;
• Art. 115–120 – duration of main and additional leave;
• Art. 423 – on the proportionality of the amount of funds received in return for unused vacation days;
• Art. 251–351 – features of regulation of working and rest conditions of certain categories of citizens.

The right of representatives of certain professions to receive monetary compensation in return for unused vacation is established by Part IV of the Labor Code of the Russian Federation and ministerial letters and orders. The procedure for calculating length of service, calculating the number of days due for compensation and other nuances are regulated by the following regulations:

• Rules on regular and additional holidays, approved by the USSR People's Commissariat of Labor in 1930, as amended in 2010;
• Letter of the Ministry of Health and Social Development No. 4334-17 dated December 7, 2005;
• Letter of the Federal Service for Labor and Employment No. 944-6 dated June 23, 2006;
• Letter of Rostrud No. 5921-TZ dated October 31, 2008;
• Decree of the Government of the Russian Federation No. 922 of December 24, 2007;
• International Convention “On Paid Holidays” No. 132 (ratified on July 1, 2010).

In what cases is compensation due?

In most cases, the entire remaining number of days of annual rest is subject to recalculation and payment upon dismissal. Situations are also possible when continuing to work in the organization. The rarity of the latter option is due to the fact that the Labor Code prohibits compensation for the basic 28 days due to the majority of the working population (with the exception of certain professions, for example, doctors, teachers, etc.), and employers prefer to transfer the rest to the next billing period.

An employee is entitled to an annual paid holiday of 28 calendar days at least once every 24 months. Failure to provide this is a violation of the law and entails administrative penalties for the employer. Having used half of the 56 days allotted for 2 years worked, the rest cannot be reimbursed in cash, because all of these are components of the mandatory main part. Replacement with money is possible only in case of termination of the employment contract. These rules apply to main employees, internal and external part-time workers.

Upon dismissal of an employee

The right to use annual paid leave arises for an employee after six months of work. Upon dismissal, all due unused vacation days are subject to compensation, regardless of the amount of time worked in the organization. For example, an employer who has worked for 4 months must compensate the period of compulsory annual rest in proportion to this period. For accurate calculation, a special formula is used.

No dismissal

If the employee continues to work at the enterprise, the vacation days not used by him during the accounting year are, with his consent, transferred to the next year or paid. Article 115 of the Labor Code of the Russian Federation prohibits compensation for basic annual paid leave. If the employee does not take a full day off, he can reimburse the remaining amount, even if he does not quit, but only the amount exceeding the required 28 calendar days is subject to payment.

Excessive days are additional days provided for by law, local regulations of the enterprise, remaining days off for the previous accounting year, etc. Article 116 of the Labor Code of the Russian Federation provides for an extended duration of annual rest, in return for which compensation for unused vacation without dismissal is possible for the following categories of employees:

• having a special nature of work - the number of additional days is established by the Government of the Russian Federation;
• those employed in hazardous industries – at least 7 days;
• with an irregular schedule – 3 or more;
• having dangerous working conditions – more than 6;
• those living in the Far North and equivalent areas - depending on the regional coefficient;
• disabled people, pensioners – up to 14 calendar days;
• representatives of certain professions: doctors, teachers, researchers, civil servants;
• otherwise, if established by local regulations of the employer.

Calculation of compensation upon dismissal

An employee who has worked for a certain period of time and has not taken advantage of the right to annual paid leave must be compensated for these days in cash upon dismissal. The reason for terminating an employment contract - at will, expiration, violation of labor discipline, etc. - does not affect the right to receive payment; it is due to everyone. Compensation for unused vacation upon dismissal is calculated:

1. in proportion to the time worked;
2. taking into account average daily earnings.

When is full compensation due?

In some cases, an employee is entitled to reimbursement of unused vacation days for a full 12 months, even if the period worked is less. This happens when an employee has worked at the enterprise for a period exceeding 11 months - 1 year and 11 months, 2 years and 11 months. etc. or has at least 5.5 months of experience and was fired for the following reasons:

• staff reductions;
• liquidation, reorganization of an enterprise, structural unit;
• redirection to another place of work;
• conscription for military service;
• professional incompetence.

Employee's vacation period

Employees are entitled to a rest period of at least 28 calendar days not for the calendar year, starting in January, but for the billing year, calculated from the date of hire. For example, an employee was employed on 02/04/2016, the calculation year for him will be 02/04/2016 - 02/03/2017 (in the absence of periods shifting it). The right to use up to 14 calendar days (more if agreed with superiors) arises for the employee after 6 months of continuous service, i.e. in the above example – 08/04/2016, and the full one can be used after 11 months. – 01/04/2017

It is possible to provide annual leave in advance to the following categories of employees:

• persons under 18 years of age;
• pregnant women;
• having children under three years of age;
• part-time workers;
• beneficiaries, for example, pensioners, disabled people, etc.

To determine the number of unused days for the purpose of compensation, it is necessary to calculate the vacation period. Vacation periods excluded from the calculation:

• without pay, lasting more than 14 days in 1 year;
• for child care up to 1.5 or 3 years.

For example, an employee employed on 02/04/2016 used 12 days of the main one and 28 at his own expense (01/08–28/09), then upon dismissal on 01/10/2016 he is entitled to compensation for the unused period 04/02–01/08 and 15/08–01/10. To round off the months that make up the vacation period, the arithmetic principle is used: 15 or more days of the last month are rounded up, shorter durations are rounded down.

Formula for calculating vacation pay

An employee can calculate the amount due for unspent vacation on his own using an online calculator, but it is difficult because you need to know your total annual income, the number of days off and the vacation period. Payment of compensation for unused vacation is calculated by enterprise accountants using the formula:

• Amount = Number of unused days × Average daily earnings.

The amount due for the rest period worked can be calculated in two ways:

1. According to the Rules on regular and additional leaves of 1930, the document approved in the Soviet Union, with amendments, is still in force. Days subject to compensation = Months worked × Number of allotted days per year / 12. For example, an employee who has worked 7 months, at his request, is provided with payment for 7 × 28/12 = 16.33 = 17 days. According to the regulations of the Ministry of Health and Social Development, rounding is not performed in calculations, but if necessary, a non-integer number is rounded in favor of the employee, even if this contradicts the rules of arithmetic.
2. According to the standards established by the Ministry of Health and Social Development of the Russian Federation: 2.33 × number of months worked. For 7 months worked, 2.33 × 7 = 16.31 is calculated; when rounded towards the employee, they receive the same 17 days subject to compensation.

Average daily earnings are calculated using a formula that takes into account the salary for the year:

• SDZ = ZP / 12 / 29.3, where:
  • Salary – the employee’s salary for the last 12 months, excluding sick leave payments, overtime due to production needs, and periods of forced downtime;
  • 12 – number of months in a year;
  • 29.3 – the average number of days in a month (this average monthly number was introduced into the Labor Code in April 2014 and remains relevant now).

If one or more months were not fully worked out, the calculation is made using a completely different formula:

• SDZ = KPM × 29.3 + NP1 + NP2 +…, where:
  • KPM – number of full months,
  • NP – number of days worked in incomplete month(s).

For seasonal workers and persons who have entered into a fixed-term employment contract lasting up to 2 months, the number of days of paid leave due is indicated in Art. 291 of the Labor Code of the Russian Federation and amounts to 2 days per month worked. The number of vacation days entitled to compensation for certain other categories of workers is indicated in Part 4 of the Labor Code.

How to get compensation

In order to receive monetary compensation for unused days of paid vacation, you must contact the accounting department at your place of work with a written application. On its basis, an order for the payment of compensation is issued, issued to the employee against signature, and the corresponding entries are made in personnel documents - personal card, vacation schedule.

Statement

The application form for payment for unused vacation has not been approved at the state level. The employee draws up a document in any form indicating the basic necessary details:

• in the header: full name, position of manager, employee;
• center: “statement”;
• from the red stock, example text: “I ask you to pay me monetary compensation in exchange for unused days...”;
• amount of days;
• billing period;
• date, employee signature with transcript.

Order from the manager to replace vacation with monetary compensation

Having accepted the employee’s application, the manager endorses it and issues an order for the accounting and human resources departments. If the director is directly responsible for personnel records management, he is recommended to check the data specified in the employee’s application in order to avoid financial errors in calculations. There is no unified form of the order; it is created according to the standard standards of the organization, indicating the information necessary for this case - the employee’s full name, the number of unused days, etc.

An approximate version (sample document format):

Limited Liability Company "Vesna"

Vesna LLC

No. 137-ls dated 10/01/2017

Moscow

On replacing part of annual leave with monetary compensation

In accordance with Art. 126 Labor Code of the Russian Federation

I ORDER:

Senior technologist I.A. Makarova replace with monetary compensation part of the additional leave for the period 03/12/2016 to 03/11/2017 in the amount of 2 (two) calendar days.

Reason: personal statement by I.A. Makarova. from 09/29/2017

Director of Vesna LLC (signature) Kryuchkov D.S.

I have read the order:

Senior technologist (signature) Makarova I.A.

When is it paid?

Cash compensation for unused vacation without dismissal is paid on the date of payroll for the current month. Upon termination of an employment contract, the transfer is made on the last working day or on the day the employee submits demands for payment. Failure to comply with payment deadlines or evasion of fulfilling a legal obligation related to payment for unused days will entail the imposition on the employer of sanctions established by:

1. Tax Code;
2. Code of Administrative Offences.

Taxation and insurance premiums

Taxation of compensation for unused vacation upon dismissal is regulated by the Tax Code of the Russian Federation. Article 226 obliges the employer to transfer personal income tax no later than one working day following the date of dismissal of the employee. In any situation - upon dismissal or while continuing to work - mandatory insurance contributions to the Social Insurance Fund and the Pension Fund are deducted from the amount paid (Federal Law No. 212, clause 2, part 1, article 9).

In the accounting documents of an organization (small enterprise) that does not have a vacation pay fund, reimbursement of unused days is reflected as an expense item (Article 225 of the Tax Code of the Russian Federation), therefore it affects the payment of income tax by organizations using the “income minus expenses” tax system and does not affect on those using only income as an object of taxation.

What to do if the compensation payment is not accrued or not paid on time

A delay in calculating compensation for unused days or its absence is a reason to appeal to the labor inspectorate and the court. The Code of Administrative Offenses provides for fines for employers in the amount of:

• 10–20 thousand rubles – for officials;
• 30–50 thousand – for legal entities;
• 1–5 thousand – for entrepreneurs operating without forming a legal entity.

For repetition of similar violations, the punishment increases:

• 20–30 thousand rubles or suspension from activities for 1–3 years – for officials;
• 10–30 thousand – for those who are not a legal entity;
• 30–50 thousand – for legal entities.

By filing a lawsuit against the employer, the employee has the right to claim unpaid compensation, underpayment, compensation for moral damage, and legal costs associated with the trial. An employee has the right to file a claim with the appropriate authorities to recover additional payment from the employer before the expiration of 3 months from the date of dismissal.

Video

Quite a lot of people wonder Is it possible to replace annual leave with monetary compensation?. Let's try to understand the intricacies of the current labor legislation in this area and give you detailed information that is useful when building relationships with the employer.

When can vacation be compensated with money?

There are 2 legally established options for replacing vacation with monetary compensation:

Payment in cash for part of the vacation exceeding the basic 28 calendar days. This norm is contained in Article 126 of the Labor Code of the Russian Federation.

Dismissal of an employee. In this case, the provisions of Article 127 of the Labor Code of the Russian Federation apply.

Replacement of vacation with monetary compensation is not allowed. women during pregnancy and workers under the age of majority (18 years). For persons who work in harmful and dangerous jobs, the law did not previously allow the replacement of the days of the provided additional leave with monetary compensation. However, two years ago, adjustments were made to this norm. Now, replacing vacation with cash compensation is possible for days of additional vacation exceeding a calendar week. Moreover, this opportunity must be secured by a collective agreement. Payment is made based on the order of the director.

Compensation for unused vacation sample order:

Concerning payment of compensation for days of unused vacation upon dismissal of an employee, then here according to Art. 127 of the Labor Code of the Russian Federation, all unused vacations must be paid, including days that a person has not used in all previous years since employment. Moreover, the right to receive compensation does not depend on the circumstances that caused the dismissal. In this case, the basis for calculating monetary compensation is the dismissal order, where the amounts to be paid are fixed.

Let's take a closer look at both options.

Replacement of vacation with monetary compensation for days beyond 28 calendar days

As noted above, the payment in this case is made on the basis of the director’s order, which in turn is issued on the basis of the employee’s personal application.

Compensation for vacation sample application:

The decision on such monetary compensation for vacation days is made directly by the manager, who either agrees to make it at the request of the employee, or makes a negative decision due to certain circumstances. In case of refusal, the employee must use the vacation days in kind, so to speak. Therefore, it is not worth talking about the infringement of the employee’s legal rights.

If a person shares vacation, then only that part of it that falls on additional days over 28 calendar days of the main vacation is subject to compensation.

Let's give an example. Let us assume that an employee of an enterprise, in connection with the performance of his job duties under an irregular working day, is entitled to a basic paid leave of 28 calendar days and an additional leave of 10 calendar days. Total 38 calendar days. for the next year it is stipulated that he will go on vacation in August for all 38 days. However, he appeals to the manager with a request to be sent on vacation for 28 calendar days and replace additional days of vacation with monetary compensation.

In this case, the employee will most likely receive payment of compensation simultaneously with vacation pay no later than 3 days before going on vacation. The norm regarding the timing of payment of vacation pay is enshrined in Art. 136 Labor Code of the Russian Federation.

The amount of monetary compensation is calculated on the basis of a person’s average earnings, which in turn is determined in accordance with the rules provided for in Article 139 of the Labor Code of the Russian Federation, as well as the Regulations approved by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922.

If the duration of the main vacation is longer than 28 calendar days(for example, this could be 30 calendar days), then additional leave and 2 days of main leave can be replaced with monetary compensation.

There are also options when the main leave is issued in calendar days, and additional leave in working days. In this case, the part of the vacation compensated by monetary payment must be recalculated into calendar days. In this case, the mathematical fraction 7/6 is used, in which 7 is the number of calendar days in a week, and 6 is the number of working days in a 6-day working week.

It is worth taking into account such an important point that in the case of summing up annual vacations, as well as when transferring the due vacation to the next calendar year, the law provides for the possibility of receiving monetary compensation for part of the vacation for each year exceeding 28 calendar days. For example, the duration of a person’s annual leave is 35 calendar days. Due to production needs, his next vacation was postponed to the next calendar year. Thus, he is entitled to rest for the whole 70 calendar days. Of these, he is required to take 56 calendar days off directly, and in the form of monetary compensation he can receive payment for 14 calendar days (35-28) for each of the 2 due vacations.

Compensation for leave for hazardous work (harmful working conditions)

Employees engaged in hazardous work are entitled to payment of monetary compensation in exchange for additional paid leave for that part of it that exceeds 7 calendar days.

To ensure a legal basis for such compensation, it is necessary that there is an industry agreement establishing it, and it must also be provided for in the collective agreement for the enterprise. In addition, the employee’s consent to such a monetary replacement of vacation days is required, which is drawn up in writing in the form of an additional agreement to the employment contract.

Let us remind you that additional days for rest are provided to employees whose working conditions during the special assessment are classified as harmful II-IV degrees or dangerous.

Compensation for unused vacation upon dismissal

Cash payment to a resigning employee for all days of unused vacation from the date of employment is provided for in Art. 127 Labor Code of the Russian Federation. True, the payment can be replaced on the basis of the employee’s personal application by directly providing him with all the specified days of rest. The exception in this case is dismissal for disciplinary offenses of an employee. In this case, the employer may consider the request to replace compensation with vacation positively, but is not obliged. There is judicial practice and explanations from Rostrud on this matter.

If an employer refuses to provide a resigning employee with leave before leaving, then his legal right to paid leave is exercised by providing monetary compensation. This payment is calculated in proportion to the number of unused rest days.

If both the employer and the company employee agree to this, then the vacation can be transferred, but this is done only as a last resort if the employee’s departure from work will negatively affect the company’s activities. It is worth noting that The employee must use the transferred days within the next year.

Management should not refuse to provide paid leave to their employees for 2 years in a row.

But if the enterprise employs minors and those whose work takes place in conditions harmful to health, then such people must rest annually.

Thus, the employer has certain restrictions regarding the provision of vacations for staff. But in some cases, workers accumulate unused time off from previous vacations. Then a person can count on their provision or receiving financial compensation. Let's take a closer look at when and under what conditions this is possible.

Material compensation should be paid to employees only if their vacations are extended, that is, their duration is more than 28 days (Article 126 of the Labor Code of the Russian Federation).

This group includes:

• workers who may receive additional days off;
• health workers;
• persons whose work negatively affects their health;
• coaches and athletes;
• teachers;
• minors;
• disabled people;
• people who work in the Far North or in areas where the law applies to them.

For workers who fall into one of the above categories, the head of the enterprise can pay monetary compensation based on vacation days that they did not use. On the other hand, he is not obliged to do this. The head of the enterprise can also give an employee a day off, but refuse to pay financial compensation.

How to properly arrange for the replacement of days not taken off with payment?

To receive financial compensation you must do the following:

Let's take a closer look at how this procedure works.

How is an employee application prepared?

Replacement of unused vacation days with money can only be done at the request of the employee.

He must state the request in his application, which is drawn up in the name of the head of the enterprise. On this moment the exact form for it has not been established, so An employee can draw up a document in free form.

1. Usually the name of the enterprise is written at the top in the right corner, as well as the full name of the company director.
2. In the text of the application, it will be possible to refer to, on the basis of which a person can count on payment of monetary compensation due to days of additional paid leave that were not used by the employee.
3. The text should also indicate the period that the employee spent at his workplace and write how many days it contains.
4. At the end of the document, the employee’s position, his full name and the date on which the application was drawn up should be indicated.

How is a payment order made?

The head of the enterprise, having received the application, will have to issue an order, if he agrees to pay the employee monetary compensation. The order also does not have a special form, so it is drawn up in any order. The document must contain:

After the order is issued, information that the unused period will be replaced by a cash payment must be reflected in the worker’s personal card in the “Vacation” section.

In addition, it is necessary to make changes to the data relating to the replacement of rest days with a monetary amount, and in the vacation column. The entry must be made in the “Note” column. Here it is necessary to indicate how many days it is required to replace, and also write down the details of the order.

Remember! If an employee wants to receive a cash payment for days that he was unable to take off, then the head of the enterprise may well refuse his request.

If the employer expresses a desire to replace the unused vacation period with a financial payment, then the employee is not obliged to agree to this.

How many days are allowed to replace?

The exact number of days that are allowed to be exchanged for a cash payment is not established by the legislation of the Russian Federation. However, it is prohibited by law to completely replace the entire vacation with cash payments.

The head of the company can replace only part of the vacation with material compensation exceeding 28 days (Part 1 of Article 126 of the Labor Code of the Russian Federation). That is, only those persons who have extended it or who are entitled to additional leave at the enterprise can count on payment.

Conclusion

At enterprises, situations often arise when a person cannot leave his workplace and go on a planned paid vacation. In such circumstances, employees may be offered to replace unused vacation days with financial compensation.

However, this is not possible in every case. This is done only at the request of the employee. In its turn the employer has no right to force a person to agree to such conditions, and he, in turn, can refuse the employee such a request.