How is an employee deducted for vacation days during a reduction? Leave before reduction Notification of the reduction in the number of days of leave

Good afternoon. In connection with the reduction, I would like to know when I have the right to go on vacation: is it necessary before the reduction date or can I also do it after?

there is no such thing as a reduction followed by a vacation, so you can use the annual paid leave only before the reduction, or receive monetary compensation from the employer and rest after the reduction.

Could you clarify whether your annual paid vacation is planned according to the vacation schedule and whether it falls within the next 2 months? If yes, then you have the right to use this leave, because vacation schedule is a mandatory document for both the employer and the employee.

When it comes to vacations, to be honest, I think the best option it would be possible to receive compensation for unused vacation, and it would be possible to rest even after the reduction.

According to subparagraph "a" of paragraph 28 of the Rules on regular and additional holidays approved by the USSR TNK on April 30, 1930 No. 169, employees who have worked from 5 1/2 to 11 months receive full compensation, in particular, if they leave due to the liquidation of an enterprise or institution or individual parts of it layoffs or job cuts, as well as reorganization or temporary suspension of work. If the employee has worked less than the specified period, then he is paid compensation for the proportionally worked time.

Thus, if in the last working year you worked more than 5 months and 15 days, you are entitled to full compensation for unused vacation.

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Payments in case of reduction in the number or staff of the organization's employees /blog/posts/2014/05/11537/

Hello, You can exercise your holiday entitlement from the date of the reduction. According to Art. 127 of the Labor Code of the Russian Federation, upon written application of the employee, unused vacations may be provided to him with subsequent dismissal (with the exception of cases of dismissal for guilty actions). In this case, the day of dismissal is considered the last day of vacation.

Here, regardless of the reason for dismissal, upon dismissal and redundancy, you can take a vacation. Just the date of dismissal will move.

In connection with the dismissal, the vacation schedule does not matter at all if there is something to use as vacation upon dismissal!

Write an application addressed to the employer, indicating that you wish to exercise your right to leave and indicate the start date of the leave, which would be the date of termination of the employment contract.

If the employer meets you halfway, you will have to leave for one more day after the vacation, because. according to Art. 81 of the Labor Code of the Russian Federation, it is not allowed to dismiss an employee at the initiative of the employer (with the exception of the case of liquidation of the organization or termination of activities individual entrepreneur) during the period of his temporary incapacity for work and during his stay on vacation.

In accordance with Article 127 of the Labor Code of the Russian Federation, an employee can use leave with subsequent dismissal.

Only here are a few nuances that indicate that it will not be possible to apply this article to use paid leave:

1. Providing an employee with unused vacation followed by dismissal is the right of the employer, not his duty.

2. When an employee is granted leave with subsequent dismissal, the last day of leave is considered the day of dismissal (This conclusion also follows from the Ruling of the Constitutional Court Russian Federation dated January 25, 2007 No. 131-О-О.)

And this goes against and in violation of Article 81 of the Labor Code of the Russian Federation- It is not allowed to dismiss an employee at the initiative of the employer (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during the period of vacation.

And therefore, vacation followed by dismissal, where the last day of vacation is considered the day of dismissal (Article 127 of the Labor Code of the Russian Federation) cannot be applied, because. violates the requirement of Article.81 of the Labor Code of the Russian Federation, t.to. dismissal under clause 2 of article 81 of the Labor Code of the Russian Federation is the initiative of the employer.

3. Having expressed a desire to receive leave with subsequent dismissal, the employee thereby expressed a desire to stop labor Relations with the employer, i.e. expressed his initiative. The employee's initiative is layoffs own will.

Your plans do not include being fired of your own free will, instead, at the initiative of the employer, clause 2, article 81 of the Labor Code of the Russian Federation, because payments in these cases are different.

4. For the period of illness during the period of vacation with subsequent dismissal, the employee is paid temporary disability benefits.

Those. an employee can issue a bl during the period of vacation with subsequent dismissal, the only difference is that in this case the vacation is not extended.

And again, if an employee draws up a bl during the vacation period with subsequent dismissal, then this will be another violation of Article 81 of the Labor Code of the Russian Federation, because. dismissal during the period bl at the initiative of the employer is prohibited by article 81 of the Labor Code of the Russian Federation, which again indicates that using leave with subsequent dismissal and formalizing dismissal under clause 2 of article 81 of the Labor Code of the Russian Federation cannot be combined.

5. This is also evidenced by the fact that all settlements with the employee are made before the employee goes on vacation, because after its expiration, the parties will no longer be bound by obligations. You should also deal with the work book and other work-related documents that the employer is obliged to provide to the employee - they must be issued to the employee before going on vacation, that is, on the last day of work.

Expert Irina Kirshina pointed out to you that the employer should have a vacation schedule for 2015, and if your next vacation fell on the notice of dismissal under clause 2 of article 81 of the Labor Code of the Russian Federation, then you have the right to use this vacation, even if it goes beyond the end date of the notice, in which case, you will be fired after the end of the vacation on the first business day.

The vacation schedule is a mandatory document for the employer and employee, Article 123 of the Labor Code of the Russian Federation.

Check out this algorithm here:

/blog/posts/2014/05/11462/ Vacation at a convenient time for the employee - who is entitled to it?

And if you are on the list to whom the employer is obliged to provide leave at a convenient time for him, and the employer drew up a vacation schedule for 2015 without taking into account this right of yours, then you can claim your right. This is also one of the options.

And if the employer has such a document as a vacation schedule, there is no mandatory document of Article 123 of the Labor Code of the Russian Federation, then you can apply for annual paid leave.

An exemplary sample application in this case is attached. Although the absence of a vacation schedule is a rare occurrence, it is still a mandatory document, for the absence of which the employer is responsible.

And such a moment vacation is granted for the working year. The main thing is that the next Working Year begins, and you do not use vacation during this Working Year, or you have balances for previous or current Working Years.

Working year- 12 months from the date of employment of the employee. For example, an employee was hired on 04/01/2014, his working year is from 04/01/2014 to 03/31/2015, and so on.

Useful Algorithms from our website:

/blog/posts/2014/08/12444/ Learning how to correctly calculate compensation for unused vacation and checking the employer

/blog/posts/2014/08/12470/ For what period of work is monetary compensation paid for unused vacation upon dismissal?

And the option, if you use paid leave not in accordance with the vacation schedule, but during the notice period, even if it goes beyond this dismissal, be dismissed on the first working day, this is not a vacation with subsequent dismissal, because. I explained to you what a vacation is with a subsequent dismissal (when the day of dismissal is the last day of vacation).

This is an option to transfer the vacation to another period. You submit an application for the transfer of paid leave to another date, which is not prohibited by law by agreement of the parties and does not contradict the law. You may state a reason in your application, or you may not state a reason.

It is possible to apply Article 127 of the Labor Code of the Russian Federation, leave with subsequent dismissal, when dismissed for other reasons, as long as these are not negative motives, but it must be remembered that the day of dismissal in this case is the last day of vacation, which is not applicable when dismissed at the initiative of the employer.

It is forbidden to dismiss at the initiative of the employer during the vacation period or Article 81 of the Labor Code of the Russian Federation.

This means that it cannot be, as stated in Article 127 of the Labor Code of the Russian Federation, leave with subsequent dismissal, because. day of dismissal last day of vacation.

The last day of vacation is considered the day of dismissal.

And documents are issued and calculations are made in this case before the start of this vacation, but if we imagine that during the vacation period with subsequent dismissal, where the last day of vacation is considered the day of dismissal, the employee also fell ill, the vacation in this case is not extended, the date of dismissal is not transferred , and bl can go beyond the date of dismissal, the date of dismissal (the last day of vacation) already violated the requirement of Article 81 of the Labor Code of the Russian Federation, and if also bl beyond this date of dismissal, and documents and calculations were made on the last day of work until the day of departure vacation, this is a violation of the same article 81 of the Labor Code of the Russian Federation.

Granting leave with subsequent dismissal does not conflict with and does not violate the Labor Code of the Russian Federation, taking into account the fact that the day of dismissal is considered the last day of vacation (Article 127 of the Labor Code of the Russian Federation), for any other reasons that are not the initiative of the employer, for example, by agreement of the parties , upon expiration of the TD, etc.

And if this is not dismissal of one’s own free will, then an application for granting leave with subsequent dismissal must always be written correctly, indicating the reason for dismissal, otherwise, the employee’s initiative will be the basis for dismissal - clause 3 of article 77 of the Labor Code of the Russian Federation.

Article 81 of the Labor Code of the Russian Federation states the only exception when dismissal during a period of temporary disability and during a period of vacation is possible - liquidation of an organization or termination of activity by an individual entrepreneur.

Many people ask the question: is it possible to leave with a reduction in staff? Also, people often wonder if there are any restrictions on vacations that have not been used. To answer these questions, it is necessary to refer to the legislation of the Russian Federation.

After notification of the reduction, the employee has the right to unused vacation days

There are no restrictions that prevent the use of your leave for all previous years of work. There is also a law that provides for compensation for all unused vacation days. But these rules apply only to the situation when there is a dismissal of employees due to a reduction in their number.

The termination of the employment contract on the basis of a reduction must be notified in advance, namely 2 months in advance. This is stated in article 180 Labor Code:

The possibility of extending the term for warning employees about their dismissal, as well as the suspension of this period of time, is not provided for by law.
The dismissal of an employee initiated by the organization during the period when he is unable to work or is on vacation is unacceptable.
This rule does not apply to cases when the employer ceases to operate or the entire organization is liquidated.

Is it possible to take a vacation with a reduction? After an employee has received notice that he is about to be fired due to a reduction in position, he has the right to use his vacation. This takes into account not only the main, but also additional leave. Layoff notice time is not added to vacation days. If the warning period has already expired and the employee is still on vacation, then the employment contract can only be terminated after the end of the vacation period. That is, an employee can take all unused vacations and at the same time be registered with the organization.

Many are also interested in the question: is it possible to get another vacation during the notice period for the reduction? Yes it is possible. In this case, the employer does not have the right to refuse leave until the termination of the contract.

Financial compensation

Vacation can be compensated financially at the request of the employee. To do this, you will need to write a written application, which will inform you of the desire to replace vacation time with material compensation. According to this document, the employer is obliged to pay a certain amount of money on the day when the employment contract is considered terminated. It is important to know that all vacations that were not used at the time of dismissal are paid.

The provision that monetary compensation is not paid if leave is granted in case of a reduction in position in the last three years has already been repealed. Therefore, the employee can claim compensation for all rest days, regardless of their number. You can calculate the amount of compensation yourself. To do this, you need to know only the number of vacation days and the average wage.

Besides Money, which are paid for unused vacations, the employer also issues compensation provided for each employee who has been made redundant. These payments are a temporary measure to support the employee in the period after the termination of the contract.

Maternity and study leave

Vacation can be compensated financially at the request of the employee himself

Study leave in case of reduction, just like maternity leave, is granted according to the same rules as regular leave. But in the case of pregnancy, the employer can give his employee the right to choose another position, to which she will be transferred. At the same time, the freed space is reduced. After the expiration of the vacation time, the employee may be dismissed.

Features of maternity leave

This state of affairs is justified by legislation, which provides the employer with the opportunity to change staffing at your discretion. So employment contracts may be terminated at will individual who acts as an employer.

But this paragraph of the law does not apply to pregnant employees. Therefore, only a transfer to another position is possible. In addition, the employee can perform her functions during the parental leave. But work during this period is possible only at the request of the employee herself. The employer does not have the right to call her before the expiration of the rest period.

The operation of transferring an employee to another position is possible only with her written consent. However, she is not required to come to work during the holidays. If any disputes arise, it is the employer who is obliged to prove compliance with the dismissal procedure.

Study leave features

Study leave in case of reduction is given according to the same rules as all other holidays

The provision of study leave during the reduction period is carried out according to the same rules as all other holidays, but this procedure has a number of nuances.

Study leave may only be granted if:

An employee who combines professional activity and training, receives a certain profession in a higher educational institution accredited by state bodies.
The study proceeds successfully, without debts during the entire semester.
The student has access to the next session.
Study leave can be granted during the reduction only if the date indicated in the call certificate is earlier than the date of dismissal. Otherwise, the employee is dismissed without being granted leave.
If the organization ceased to exist during the study leave of an employee, he must be paid appropriate compensation.

In addition, if a student studies in two different educational institutions, then all points of the law can apply only to one of them. The employee is given a choice between these higher educational institutions.

office work

Reduction leave

Every person has experienced an unpleasant reduction procedure at one time or another. Learning about own dismissal, you can easily get confused and even make concessions to the employer.

To prevent this from happening, you need to know very well all your rights during the reduction, for example, to leave and demand their fulfillment.

What does the legislation say?

Reduction is a rather lengthy process of dismissal, during which all important rights of the employee must be strictly observed. Within two months from the date of notification, the employee may demand that he be granted legal leave.

Labor legislation strictly regulates the receipt of leave, allowing the employee to choose either rest or compensation.

If an employee who has been warned about his reduction is still on vacation after 2 months, he cannot be fired.

Employer actions

First of all, he must definitely know which employees are allowed to be fired and which are prohibited by labor law.

In any case, the employer must comply with all dismissal rules. When reducing, the employee must receive a written notice of this and even sign for its receipt.

If at this moment the employee is on vacation, then such a notification should be sent to him by mail.

You can find a copy of the cancellation notice here:

Also, the employer must offer him another suitable position.

The organization has the opportunity to terminate the employment contract before the official warning about it, only if the employee himself agrees to this.

Such consent must be recorded in writing.

The document is of two types:

written proposal;
termination agreement.

The law also establishes that if several people occupy equivalent positions, and one needs to be reduced, then the following must be left:

an employee with a higher qualification;
the sole breadwinner of the family;
an employee who received an industrial injury while working at this enterprise;
an employee who is currently improving his/her qualifications while continuing to work;
disabled person or beneficiary of all categories.

If an employee demands to be granted leave (this includes additional leave), they do not have the right to refuse him.

In any other case, he will receive monetary compensation for it.

Worker actions

There is a certain list of employees with whom it is impossible to terminate an employment contract (Article 261 of the Labor Code of the Russian Federation).

First of all, the employee needs to find out which category he belongs to.

Can't be fired:

Pregnant woman.
A woman raising a small child (up to 3 years old).
Single mother with a child under 14 years old (a disabled child under 18 years old).
A person who raises a child without a mother.
The sole breadwinner of a family with small children or a disabled child.

Dismissing persons who fit into these categories is illegal.

In addition, you can request reinstatement if:

severance pay was not issued;
there was no holiday compensation;
a written notice of dismissal was not received;
you are a person who cannot legally be fired.

Often, the organization simply changes the name of the position, so the objectionable employee leaves.

Such dismissal is quite realistically challenged in court. If the loss of work cannot be avoided, then you can go on vacation, which is required by law.

If vacation days are not used, compensation will be paid.

Reduction and study leave

In order to correctly issue a study leave, the employee must bring a certificate-call from the institute and write a special application for granting him leave.

The employer is immediately obliged to issue an order, which will record all the details of the study leave, and send it to the accounting department. Only then will it be legal.

During the layoff, an employee can only take such leave if the session begins before he is officially dismissed.

You should be aware that the duration of the entire vacation in the documents should be the same as in the call certificate.

Any reduction in leave is considered illegal.

It is impossible to dismiss an employee before he returns from study leave.

Article 81 of the Labor Code of the Russian Federation directly states that such a dismissal is possible only in the event of the liquidation of an enterprise or the termination of business activities.

Is it possible to be notified while on maternity leave? You will find detailed information here.

Downsizing and maternity leave

Every woman who is on maternity leave must understand that it is impossible to fire her. Although many unscrupulous employers still try to lay off a young mother, without fear that it is illegal.

The consequences for the organization can be:

fine;
payment to a woman of average earnings;
her reinstatement;
compensation for moral damage.

The first thing such a woman should do is to turn to lawyers.

You can win such a case 100%, but you should not leave this employer unpunished. After all, many of them hope for legal illiteracy or the employment of a fired woman.

A mother with a small child really has no time to go to various instances and go to court.

In this case, all the work is done by lawyers, and the plaintiff has one task - to sign all the necessary documents.

When contacting specialists, you should know that the deadline for filing a claim is 1 month from the day he learned about the dismissal.

At the same time, the court does not take oral notices into account and often extends this period due to maternity leave.

Downsizing and maternity leave

Now it is very common to fire women who are on leave to care for children from 3 to 14 years old or who have dependent children with disabilities.

The employer does not have the right to fire such women if they are considered single mothers, except in exceptional cases. Unfortunately, such women are forced to leave work on their own.

Compensation calculation

If the employee still got laid off, then he is entitled to various payments:

severance pay;
wage;
compensation for early termination of the contract;
holiday compensation.

Payments for unused days

If the employee did not use his vacation or any part of it, then by law he has the right to reimburse these days in cash.

To check this, they usually take an employee's length of service, for example, 30 months.

Considering that every year he was entitled to a vacation of 28 calendar days, then for the entire period of work the vacation will be 70 days (28/12 × 30).

From this number, the vacation days already used by the employee are subtracted, and, for example, 13 days remain (70 - 57). Then the earnings per day are calculated and multiplied by 13 days.

If the average amount per day is 1 thousand rubles, then the compensation will be 13 thousand rubles.

Are retentions possible?

No funds can be withheld in favor of the enterprise upon dismissal of an employee.

All settlement with him must be made no later than the last business day.

Is it possible to take a vacation earlier than 6 months? The answer is here.

What are the features of juvenile leave? Find out here.

Lump sum payments

A one-time payment in case of reduction is considered to be severance pay, wages and various compensations.

Most often, the amount of severance pay is the average monthly salary of an employee (Article 178 of the Labor Code of the Russian Federation). In this case, the amount can be much more if this item is spelled out in the collective agreement.

If an employee received a salary of approximately 20 thousand rubles, then this is exactly what his severance pay will be.

If the contract specifies a fixed amount, for example, 30 thousand rubles, then the employee will receive them. This also includes wages, which are calculated separately from the severance pay, but an employee can receive it for no more than 2 months.

This applies only to those who leave not of their own free will.

Upon termination of the contract, the employee also has the right to count on it.

Example:

F. P. Alekseev was warned of his dismissal several months in advance and dismissed ahead of schedule. The rest of the days that he did not work before his dismissal is 12, and the days worked for the last month are 22. If we take into account that in a year (226 days) he earned 240 thousand rubles, then in one day he received 1,088 rubles.

So, to calculate the severance pay, you need to multiply the wages per day by the number of days worked for the last month - 1, 088 × 22.

As a result, the severance pay for F.P. Alekseev will be 23,936 rubles.

Since the dismissal was early, the employee is entitled to compensation.

The 12 days not worked by Alekseev must also be multiplied by 1,088 rubles. The total amount will be 13,056 rubles.

Provided that the employee also immediately turned to the employment center, wages are saved.

Two months when he can legally receive and look for it new job, count approximately as 33 days. This amount will be 35,904 rubles (1.088×33). And the total amount of all payments will be 72, 896 rubles.

The main thing that an employee who has been made redundant should know is that the law is on his side.

In any case, he can count on various payments and use his legal leave as he sees fit.

How to competently calculate compensation for unused vacation upon dismissal due to redundancy?

Reduction of staff is not the most frequent procedure in personnel matters. That is why mistakes are often made during its execution, including those relating to the payment of compensations laid down by law.

Let's try to figure out what exactly is due to a dismissed employee who did not take advantage of the vacation, in what terms the payment should be made, and what the violator faces for liability.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

If you want to know how to solve exactly your problem - just call, it's fast and free!

Retirement payouts

First, it is worth briefly saying what an abbreviation is.

The Labor Code does not give an exact definition, but it can be formulated as follows: reduction is a reduction in the number of employees planned by the management of the enterprise, while when the number is dismissed, the number of people in a certain position decreases, and when the staff is reduced, the corresponding position is generally excluded from the staff list.

These include:

Compensation for dismissal before the warning period has expired. It is paid if the employee agrees to terminate the contract ahead of schedule (Article 180 of the Labor Code of the Russian Federation).
Allowance and average salary until new employment, but not more than 2 months (Article 178 of the Labor Code of the Russian Federation). By decision of the local employment service, the payment can be continued for the third month if the employee has not been able to find a job.

The payment, however, does not apply to part-time workers: they already have another job, they do not need financial assistance from their former employer.

Salary for the worked part of the month (Article 140 of the Labor Code of the Russian Federation).

Payment for vacation time that was not used (Article 127 of the Labor Code of the Russian Federation).

140 article of the Labor Code of the Russian Federation. Deadlines for dismissal

Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed.

If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.

In the event of a dispute about the amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article.

Let's take a closer look at the last compensation.

Reimbursement for holidays not used

The calculation and payment of compensation for unused vacation in the event of a reduction in staff or headcount is no different from the procedure that is applied when an employee is dismissed for other reasons. However, there are a few non-obvious points that need to be kept in mind.

Calculation of the number of days

To pay the money, the employer needs to know how many days of paid rest the employee was entitled to at the time of dismissal. In the event that he has worked a full year, it is easy - just look at the employment contract.

However, this situation is rare: it usually turns out that more or less than a year. How to be in this case?

It should be noted that this issue has not been fully resolved by law. There are two methods for calculating compensation:

Based on the Rules approved by the NCT of the USSR on April 30, 1930 No. 169. According to these Rules, it is necessary to multiply the duration of vacation under an employment contract by the number of months that have already been worked out since the last vacation or hiring (if the employee has not yet been on vacation) - and divide by 12.
Based on the Recommendations of Rostrud (Minutes of June 19, 2014 No. 2). It first calculates how many vacation days the employee is entitled to for each month worked, and then the resulting number is multiplied by the number of months worked.

When using this method, intervals less than half a calendar month are not taken into account, more are rounded up to the nearest integer.

For example, if an employee under a contract is entitled to 4 calendar weeks of vacation per year, then for each month he is entitled to 2, (3) (two and three in a period) days. Rostrud recommends that this figure be rounded up to 2.33 days for the billing month.

Since there are no legal provisions yet, the employer may use any of the above methods.

At the same time, it should be borne in mind that the one proposed by Rostrud suffers from some inaccuracy: for example, with 6 full months worked, which make up exactly half of the year, an employee with 28-day vacations has the right to count on 14 days - however, when calculating according to the Recommendations, the result is not 14, but 13.98.

Moreover, if the employee has not rested for several years, compensation must be calculated for each year. Finally, if the employee partially used the vacation, then the days used are not taken into account in the calculation.

Payout calculation

So, the number of days is known. Termination compensation is paid in the amount of the average daily pay multiplied by the number of days due. But how is it required to calculate the average salary for one day?

To calculate compensation, you must use the following indicators:

The amount of income received by the employee at the place of performance of labor duties for the last calendar year. In the formula, this indicator will be denoted as D.
Average number of days per month. According to the Decree of the Government of the Russian Federation No. 922 of December 24, 2007, this indicator should be 29.3 in calculations.
The number of months in the billing period that have been fully worked. We denote them in the formula as M1.
The number of days in months when the employee did not work all the days. Let's denote them as M2.

And now we will deal with each indicator separately.

What exactly is included in the amount of earnings?

To calculate the D score, it is necessary to take into account the norms fixed in the Decree of the Government of the Russian Federation No. 922. According to clause 2 of this regulatory act, the total income includes:

Salary for each month of the billing period.
Additional payments for seniority, rank, skill, etc.
Compensation for overtime, work on holidays, special working conditions, etc.
Premiums and bonuses stipulated by the internal regulations of the enterprise and paid regularly.

Wherein the following payments received by the employee are not used for calculation:

Social payments and material aid(payment for vouchers, travel compensation, etc.).
Dividends on company shares.
Rewards for people participating in supervisory boards, boards of directors and other collective governing bodies of the organization.

What days worked are counted?

The days worked must be calculated in accordance with the current at the enterprise production calendar . Usually, the calendar year is used as the billing period, but by its order, the management of the enterprise can enter other periods of time (quarter, half a year, month, etc.) to calculate the average daily earnings.

When calculating, all days are used when the employee performed his labor obligations. A complete calculation of the number of days is carried out on the basis of timesheets that must be kept for each employee. Their form was approved by the Decree of the State Statistics Committee of the Russian Federation No. 1 of January 5, 2004. Although the application of this form has not been mandatory since January 1, 2013, in practice they continue to be actively used.

In the event that the employee worked for a full annual billing period, then the average number of days in a month can be used to calculate compensation above (29.3). If less, then the days are counted.

Watch a video about leave compensation upon dismissal:

Calculation of average daily earnings

And now we calculate the average daily earnings due to the employee. To do this, we take the billing period in force at the enterprise, add up all the amounts included in indicator D.

Compensation is calculated according to the following formula:

Holiday compensation

Previously, we received the value of the average daily earnings. In order to determine the amount of compensation due, it must be multiplied by the number of vacation days due to the employee (let's denote it as O).

As a result the final formula for calculating compensation (K) will look like this:

It is this amount that should be accrued to the employee.

Taxation and contributions

However, the above calculation is only the first step. Don't forget about taxes and fees. According to Art. 217 of the Tax Code of the Russian Federation, personal income tax is paid from compensation for vacation in case of staff reduction. Therefore, the dismissed employee will receive a smaller amount in his hands.

The following factors should be kept in mind when calculating VAT:

tax rate. For residents, that is, citizens permanently residing in Russia, it is 13%.
The amount of compensation awarded.

Compensation is not subject to personal income tax in only one case - if the employee died without having time to receive it, and it is inherited by his relatives (clause 18, article 217 of the Tax Code of the Russian Federation).

In addition to personal income tax, contributions to the PFR, FSS, and FFOMS are withheld from compensation. The basis for this is subparagraph 2 of paragraph 1 of Art. 422 of the Tax Code of the Russian Federation. These contributions are transferred to the budget in the usual manner, that is, on the 15th day of the month following the dismissal.

Due date

Compensation must be accrued and paid to the employee on the last day before dismissal. If he did not work that day, then all payments and compensations must be made no later than the next day after he applies for the calculation (part 1 of article 140 of the Labor Code of the Russian Federation).

In the event that there is a dispute between the employee and the employer about the amount of payments due, the management of the enterprise must pay the amount that both parties agree to accrue. The issue of paying the remaining part is decided separately, if necessary - in court.

How is it arranged?

In the event that an employee is dismissed due to a reduction, compensation for vacation requires the execution of the following documents:

Employee statements. This is due to the fact that the employee has a choice between compensation and actual leave. In the latter case, he does not receive compensation, but ordinary vacation pay.
An order from the employer to pay compensation.

Let's see how these documents are compiled. It's easier with a statement. According to Art. 127 of the Labor Code of the Russian Federation, payment of compensation is the responsibility of the employer. Thus, the employee must write an application only if he wants to take a vacation in whole or in part before dismissal.

None mandatory requirements The law does not provide for this document.

The employer will need to complete the following documents:

Order of dismissal in the form No. T-8, approved by the above resolution of the State Statistics Committee. If several employees leave, an order is issued in the form No. T-8a.
Note-calculation in the form No. T-61. It is filled together personnel service and company accounting.
Personal card (form No. T-2). It must be maintained for each employee, and a note is made in it about the dismissal and payment of compensation.

Download the form of the dismissal order in the form No. T-8
Download a sample order for dismissal in the form No. T-8
Download the note-calculation form in the form No. T-61
Download a sample note-calculation in the form No. T-61
Download the personal card form (form No. T-2)
Download a sample personal card (form No. T-2)

Conclusion

Thus, it is easy to see that the procedure for paying compensation upon dismissal with a reduction in staff is practically no different from situations when an employee is dismissed for other reasons. However, even in this case, personnel officers and accountants sometimes make mistakes. If this happens, the employee has the right to file a complaint with the court.

In this case, he can not only achieve full payment, but also recover the incurred legal costs from the former employer. That is why it is so important correct design and payment of compensation.

Calculation of compensation for unused vacation in case of redundancy

V market economy labor resource is the main one for the life of the organization, but due to the spread of new technologies, situations often occur when some professions and specialties become obsolete. In this regard, there is a reduction in the number of employees. This initiative is formed by the employer, who is obliged to support his former employees which brought him some profit. Reduction of staff is a rather complicated procedure, so you need to follow all the formalities in relation to employees. Also laid off workers receive guarantees and compensations in case of reduction. One of the compensations is the payment for unused vacation.

Consider the features of calculating such compensation when reducing the staff in the organization.

Regulatory regulation

Labor Code of the Russian Federation Art. 81 contains grounds for termination of the contract at the initiative of the employer

Labor Code of the Russian Federation Art. 127 - receiving compensation for unused vacation

Decree of the Government of the Russian Federation of December 24, 2007 N 922 determines the calculation of the average wages

Basis for downsizing

Reduction of staff is a change in the staffing table through the removal of departments from it or staff units, that is, all employees working in this position or the entire department. The reduction procedure is rather complicated, because the employees do not want to lose their jobs and will try to defend their right in court. Therefore, the reduction procedure consists of the following stages, taking into account the periods:

Important! When reducing the staff, the employer is obliged to notify the reduced employees at seasonal work - 7 calendar days in advance, and with an employment contract up to 2 months - 3 calendar days in advance.

So, one of the important points in the process of reduction, important for the employee is to receive compensation for the vacation, in which the employee is interested. Upon dismissal for any reason, the employee receives such compensation without fail, taking into account the entire time of work in the organization.

To avoid litigation with dismissed employees, a certain reduction procedure must be followed.

M. Blagovolina, Senior Associate at Allen & Overy

The procedure for calculating compensation upon dismissal

Upon dismissal, the employee receives vacation compensation for all the years of work in this company, that is, if there are vacation days left since 2014, they will be reimbursed in cash. If the year is not fully worked out, then the share of vacation days for each month of work is calculated:

Number of vacation days due (28, 31, 35, 42, 56 days) / 12 months

It also takes into account how many days the employee worked in a month and is taken as:

full month - more than 15 days
month is not taken into account - less than 15 days

With a vacation of 28 days for each month, it is necessary:

2.33 vacation days = 28 days / 12 months

When calculating compensation, this number can be rounded only in favor of the employee, for example, up to 3 days.

Calculation of the number of days for compensation calculation

full length of service in the organization (in accordance with paragraph 28 of the Rules: if the length of service of the reduced employee is 5.5-11 months, then this length of service is rounded up to 1 year)
the number of days of paid leave for the entire period of work (with the length of service of the reduced employee 5.5-11 months, full leave is taken into account), which the employee should have received based on the length of service
the number of days of vacation used for the entire time of work
difference between due and used vacation

Compensation days calculation example

The employee who is subject to redundancy has been working in the organization since November 13, 2015. The notice of reduction informs that August 24, 2018 is the last day of work. The duration of vacation in the organization is 28 days. For 2016, 28 days were used, for 2017 - 23, for 2018 - 21.

When leaving, the organization calculates the number of days to be compensated (if any).

total work experience in the organization - 2 years, 9 months (11 days are not taken into account, as they are less than 15 days, but the employer can round in favor of the employee)
number of vacation days for all years of work - 77 days
number of vacation days used - 72 days
difference between due and used vacation - 5 days

Compensation must be credited within 5 days.

Calculation of the amount of compensation upon reduction

Having calculated the days to be compensated, you need to calculate compensation based on the average daily earnings for the billing period and the procedure for calculating the average daily amount for calculating vacation pay.

Compensation amount = average daily earnings * number of days to be compensated

Average daily earnings \u003d the amount of wage payments accrued in the billing period (preceding 12 months) / the number of calendar days taken into account in the billing period (12 months * 29.3), where:

29.3 - the average monthly number of days taken to calculate vacation pay (excluding holidays).

Payments made not for labor activity: sick leave, vacation, business trips, etc. And those days when the employee received these amounts are excluded from the billing period as a fraction of the number of these days from 29.3.

An example of calculating the amount of compensation

The employee is leaving on August 24, 2018. The duration of vacation in the organization is 28 days. Upon dismissal, the organization is obliged to calculate the amount of compensation for 5 days.

Compensation for 5 days will be:

Billing period: from August 01, 2017 to July 31, 2018.
During this period, wages were calculated:

The average daily income was:

The amount of compensation will be:

5 days * 1592.72 rub. = 7963.59 rubles.

This amount is the employee's income, therefore it is subject to personal income tax (13% for residents):

RUB 7963.59 * 13% = 1035 rubles.

Compensation will be:

RUB 7963.59 - 1035.00 rubles. = 6928.59 rubles.

Dismissal by reduction before the expiration of the two-month period

An employee who is laid off and has written consent, but there are no suitable vacancies for him, may quit early, that is, the employment contract with him can be terminated before the expiration of 2 months. This employee is paid additional compensation, taking into account the days left before the expiration of 2 months, for example, a notice of reduction from August 24, 2018, but the employee leaves from July 02, 2018 and the amount of compensation will be taken into account as if the employee worked until August 24 2018 (part 3 of article 180 of the Labor Code of the Russian Federation).

If this employee is dismissed not through a reduction, but of his own free will (Article 80 of the Labor Code of the Russian Federation), then in this case the employer does not pay compensation, as in case of dismissal by reduction (Article 178 of the Labor Code of the Russian Federation).

Important! If the employee terminates the contract ahead of schedule during the reduction, he receives: compensation in proportion to the time remaining before the expiration of the warning period and other payments under Art. 178 of the Labor Code of the Russian Federation.

Error when contracting a pregnant woman

If the position to be reduced is occupied by a pregnant employee, is it possible, with her consent, to reduce?

The employer is not entitled to reduce this staff unit occupied by a pregnant woman, from which termination is not allowed at the initiative of the employer in accordance with Part 1 of Art. 261 of the Labor Code of the Russian Federation. Exception: liquidation. Thus, the dismissal of a pregnant employee at the initiative of the employer, clause 2, part 1, art. 81 of the Labor Code of the Russian Federation, will be illegal. Even with the consent of the employee, based on the results of the inspection of the GIT, administrative responsibility is provided (part 1 of article 5.27 of the Code of Administrative Offenses of the Russian Federation). And in case of unjustified dismissal of a pregnant woman - criminal liability(Article 145 of the Criminal Code of the Russian Federation).

Answers to common questions

Question #1: Should the employer - individual entrepreneur, when reducing employees, comply with the reduction procedure and pay compensation and severance pay?

Answer: Such an obligation arises when these guarantees are indicated in the employment contract with the employee. The norms of the Labor Code of the Russian Federation are guaranteed to employees whose employers are legal entities. Termination of the contract with employees of individual entrepreneurs should be carried out under Art. 307 of the Labor Code of the Russian Federation, established on the basis of the specifics of labor activity.

Question #2: Whether to pay compensation to a pensioner in case of staff reduction?

Answer: According to the Labor Code of the Russian Federation, a pensioner is an employee, like others, so he cannot be infringed on his rights. He definitely needs to accrue compensation for vacation on the same basis and average earnings for the second month after dismissal.

The article was written based on materials from sites: fondtaktak.org, hr-portal.ru, kadriruem.ru, naim.guru, online-buhuchet.ru.

The employer can make a decision to reduce the number or staff at any time. But what if the employee is on vacation at this time. Is it possible to notify and reduce it? In the article is it possible to reduce during the holidays.

What is an abbreviation

Important! Reduction is one of the types of dismissal of an employee at the initiative of the employer (81 of the Labor Code of the Russian Federation).

Conditions for reduction

It is important for an employer who has decided to make a reduction in the company to comply with certain conditions:

Notify workers. Employees must be warned about the reduction in advance - no later than 2 months. To do this, each employee who has fallen under the reduction must be given a notice. It is in free written form.
Notify the employment service and the union. The fact that the company plans to make cuts must be notified to both the employment service and the trade union. The trade union body in response must provide its opinion on the reduction. If such an opinion is not received within 7 days, the employer has the right not to take it into account.
Offer employees a different position. When reducing employees, the employer should take into account those employees who cannot be reduced according to the Labor Code. Laid-off workers should also be offered other vacant position in the company, and such a position may not correspond to his qualifications. In case of refusal of the position, the employee is fired.

The order of reduction of employees

After notifying employees and other authorities, the employer issues a layoff order. The order indicates the reasons for the reduction, the positions being reduced, indicating the number of staff units, the date of dismissal, as well as the responsible persons.

Important! In the event of a layoff, employees are paid compensation for their "unspent" vacation, the wages due, as well as other payments due upon layoffs.

You can terminate the contract with the employee before two months. This can be done by agreement with the employee in writing. In this case, the employee will need to accrue compensation in addition to other payments. The compensation will be average salary for all days from the date of termination of the contract until the expiration date of the two-month period.

Termination before two months is also possible with the following employees:

With whom a contract is concluded for a period of less than 2 months. You can notify such employees in 3 days (292 of the Labor Code of the Russian Federation);
Seasonal workers are notified 7 days before dismissal (296 of the Labor Code of the Russian Federation).

Reduction of an employee during vacation

Important! It is possible to dismiss an employee while he is on vacation only on his own initiative. In this case, it is impossible to dismiss at the initiative of the employer (81 of the Labor Code of the Russian Federation).

Even if the employee was notified in advance of the upcoming reduction in writing, but he went on vacation on the date of dismissal, he cannot be reduced. This will be illegal. The redundancy procedure can only be carried out after the employee returns from vacation. It will also not matter what kind of vacation the employee is on, it is impossible to dismiss at the initiative of the employer for any type of vacation, including:

Annual vacation;
Leave without pay;
Maternity leave;
Holiday to care for the child;
Study leave.

Notice to an employee on vacation

It is impossible to reduce an employee while he is on vacation, but you can notify him of the upcoming reduction. To do this, the employee is notified by registered mail. As confirmation that the employee has been notified, there will be a notification from the mail that the letter has been received by the employee. Instead of mail, you can use the services of a courier. In this case, the confirmation of receipt of the notification will be the signature of the employee on the courier's receipt.

Important! An employee on vacation is considered to have been duly notified of the upcoming reduction if the employer has supporting documents confirming the receipt of the notice (receipt from the courier or from the post office).

If the employee does not receive a notification, it will be possible to hand it over to him only after he returns to work. When compiling a notice, the employer must already indicate that if the employee is on vacation or on sick leave at the time of the reduction, he will be reduced on the first day of work after the sick leave or the end of the vacation.

If an employee refuses to be notified

There are also situations when an employee intentionally refuses to receive a notification from a courier or by mail. In this case, the employer has no choice but to wait for the employee to return from vacation. If, even after going to work, the employee does not want to sign for the notification, the employer must draw up an act of refusal to sign. It is drawn up with at least two witnesses. This act will confirm that the employee has been notified of the upcoming dismissal.

Reduction during study leave

It is prohibited to lay off an employee during vacation, even if this vacation is educational. You can only dismiss him upon his return from vacation. However, if the start date of the vacation comes after the official day of the reduction, then such an employee can be dismissed along with all other employees who have fallen under the reduction.

Let's look at an example. The employee was duly notified of the upcoming reduction. After that, he brings a certificate from the place of study about the call to defend a diploma for 3 months. The study leave in this case falls on the date of reduction. What should an employer do? Do I need to leave the employee on vacation or can it be reduced? As with any other type of leave, reductions are prohibited on study leave. The employer will have to wait for the employee to return from study leave (26 of the Labor Code of the Russian Federation). If in the certificate - the call of the employee will be the start date of the study leave after the official date of the reduction, then the employee can be fired together with everyone.

Downsizing after parental leave

conclusions

Thus, it is prohibited to carry out the procedure for reducing employees while they are on any of the holidays. The employer has the right only to notify the employee of the upcoming reduction while he is on vacation. If the dismissal is inevitable, then it can only be formalized by signing an agreement with the employee on termination of the employment contract (78 of the Labor Code of the Russian Federation). In this case, the employee is offered reasonable monetary compensation and the dismissal procedure is legal.

How to correctly issue a reduction in the length of vacation for an irregular working day for a particular employee?

(hereinafter referred to as the Labor Code of the Russian Federation) defines a special mode of working time - an irregular working day. An irregular working day is understood as a mode of work in which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their duties. labor functions outside of their working hours.

As compensation for the special regime of work, employees with irregular working hours are granted additional leave. The duration of additional leave, in accordance with part 1 of article 119 of the Labor Code of the Russian Federation, is determined collective agreement or internal labor regulations. In any case, the duration of additional leave cannot be less than three calendar days.

In practice, there are circumstances under which a reduction in the length of vacation for an irregular working day may occur. So, on May 01, 2017, Federal Law No. 90-FZ “On Amendments to Article 21 federal law“On municipal service in the Russian Federation”. In accordance with the specified law for irregular working hours for all categories of municipal employees, the same was established and is currently three calendar days.

Taking into account the fact that the condition of rest time is an essential condition of the employment contract, the question arises of how to properly reduce the duration of vacation for an irregular working day.

Reducing the duration of vacation for an irregular working day - a step-by-step algorithm

Important! Reducing the duration of vacation for an irregular working day must be carried out in the manner prescribed by Article 74 of the Labor Code of the Russian Federation.

Step one
Notification of the employee about the upcoming reduction in the duration of additional leave and the grounds for reduction. This notice must be given to the employee no later than two months before the introduction of changes.

In case of agreement with the employee, an additional agreement to the employment contract is concluded. An additional agreement establishes a new length of vacation for an irregular working day.

If the employee does not agree to work under the new conditions:

it is necessary to offer the employee another job in writing;
if the employee refuses the offered job or there are no vacancies, the employment contract is terminated in accordance with clause 7 of part 1 of article 77;
upon dismissal, the employee must be paid a severance pay in the amount of two weeks of average earnings.

Summarizing
Reducing the length of vacation for irregular working hours can be caused both by changes in legislation and changes within the organization. However, the procedure for reducing additional leave for a particular employee must comply with the order of changes in organizational or technological working conditions.

There are several options why an employee requires leave during the redundancy warning period, it can be:

Planned vacation.
Premature vacation.

The state provides for different rules regarding leave, depending on the reasons.

Planned vacation

According to the approved vacation schedule, there should be a queue of employees behind them, in accordance with Article 123 of the Labor Code. Thus, if an employee leaves in the period before the start of his vacation, agreed on the schedule, his right must be fully realized in accordance with Article 127 of the Labor Code of the Russian Federation. That is, the boss is obliged to either provide planned leave, and after that, dismiss the employee or pay him monetary compensation and dismiss him.

If, nevertheless, the employee decided to provide his well-deserved vacation, then it can be calculated on the same day. However, by law, work book there should be a record that the employee was calculated on the day he left the vacation. This must be confirmed in a written statement by the employee and with the permission of the supervisor.

It should be noted that the employer has the right to refuse to provide the employee with full-fledged leave with further dismissal if the employee is subject to dismissal under the article “For guilty actions”.

Leave due to sickness or temporary disability.

Many employers are wondering: is it possible to warn an employee about a layoff when he is on vacation? According to article 180, part two of the Labor Code of the Russian Federation, employees are warned about the upcoming dismissal due to staff reduction by the boss against signature two months before the mass dismissal.

At the same time, the Ministry of Health and Social Development of Russia believes that an employee may be notified of dismissal due to staff reduction during vacation or during a period of temporary disability. But it should be noted that the presence of such an employee to receive notification of the upcoming reduction is not required.

How to warn an employee about layoffs if he is on vacation? The employer must send a notice by mail. At the same time, the boss must insure himself and send a letter with delivery against signature in order to have data on receipt. Only in this case, the employee will be considered notified of the upcoming dismissal.

The requirements of the second part of Article 180 of the Labor Code are considered fulfilled if the employee:

wrote a statement indicating that he was warned about the dismissal;
put his signature on a copy of the notice given to him;
signed a special document, which reflects the fact of delivery of notifications to employees.

If the employee refuses to receive it during the personal delivery of the notice of the upcoming dismissal, the document can be read to him. If an employee refuses to sign or receive a document with a notification, the head is obliged to draw up a special act.

According to part 6 of article 81 of the Labor Code of the Russian Federation, it is prohibited to dismiss an employee at the initiative of the boss during his disability. Therefore, the day of dismissal cannot fall on sick leave or temporary disability. The termination of the employment contract must be made after the end of the vacation.

early leave

Leave with further dismissal is granted to the employee in accordance with the hours worked that year.

That is, if an employee has worked for six months, and his vacation for the year is 30 calendar days, then by law he is entitled to only 15 vacation days. The employee does not have the right to premature leave with a full duration.

Again, if the boss refuses to grant early leave with further dismissal, the employee's right to paid leave must be realized through the payment of an appropriate amount as compensation.

Based on this, only the boss has the right to decide whether to grant leave to an employee who has been laid off or reimburse him in cash. These actions are lawful in accordance with the decision of the Constitutional Court of the Russian Federation No. 29 of 05.02.2004. In accordance with Article 127 of the Labor Code, the head is obliged to make a decision on the implementation of unpaid vacations.

According to general rules, the employee does not have the right to demand paid leave from the boss during the period of warning of the upcoming dismissal. The exception is cases where such a right is enshrined in an industry agreement adopted by the organization in a collective agreement.

Thus, the decision to grant leave during the period of notice of the upcoming dismissal can be spelled out in the employment contract, which should be relied upon. The Labor Code of the Russian Federation has clear instructions for each specific case, the main thing is to know your rights and be able to protect them.

What does the legislation say?

After notification of the reduction, the employee has the right to unused vacation days

The termination of the employment contract on the basis of a reduction must be notified in advance, namely 2 months in advance. This is stated in Article 180 of the Labor Code:

The possibility of extending the term for warning employees about their dismissal, as well as the suspension of this period of time, is not provided for by law.
The dismissal of an employee initiated by the organization during the period when he is unable to work or is on vacation is unacceptable.
This rule does not apply to cases when the employer ceases to operate or the entire organization is liquidated.

Financial compensation

The provision that monetary compensation is not paid if leave is granted in case of a reduction in position in the last three years has already been repealed. Therefore, the employee can claim compensation for all rest days, regardless of their number. You can calculate the amount of compensation yourself. To do this, you need to know only the number of vacation days and the average wage.

In addition to the funds paid for unused vacations, the employer also provides compensation provided for each employee who has been made redundant. These payments are a temporary measure to support the employee in the period after the termination of the contract.

Maternity and study leave

Vacation can be compensated financially at the request of the employee himself

Features of maternity leave

This state of affairs is justified by legislation, which provides the employer with the opportunity to change the staffing table at its discretion. Therefore, employment contracts can be terminated at the discretion of the individual who acts as an employer.

Study leave features

Study leave in case of reduction is given according to the same rules as all other holidays

The provision of study leave during the reduction period is carried out according to the same rules as all other holidays, but this procedure has a number of nuances.

Study leave may only be granted if:

An employee who combines professional activity and education receives a certain profession in a higher educational institution accredited by state bodies.
The study proceeds successfully, without debts during the entire semester.
The student has access to the next session.
Study leave can be granted during the reduction only if the date indicated in the call certificate is earlier than the date of dismissal. Otherwise, the employee is dismissed without being granted leave.
If the organization ceased to exist during the study leave of an employee, he must be paid appropriate compensation.

These provisions establish articles 173-176 of the Labor Code. They indicate that an employee can go on study leave if he receives a certain level of education for the first time. Otherwise, the guarantee does not apply.